United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.L., Appellant 

and 

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION, 

Springfield, VA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0342 

Issued: July 26, 2016 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 16, 2015 appellant, through counsel, filed a timely appeal from a 

November 3, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed since the last merit decision dated February 18, 2015,

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 
2

to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has lack jurisdiction over the merits of this case.3

 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further review of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On March 24, 2014 appellant, then a 50-year-old account technician, filed a traumatic 

injury claim (Form CA-1) alleging that on March 19, 2014 she sustained an injury when she was 

walking to the garage and the guard closed the gate on her as she was entering the worksite. She 

reported getting hit in the nose by the gate and sustaining a neck and shoulder injury, nose 

fracture, extreme swelling of the face, and a bruised neck and collar bone. Appellant first sought 

treatment on March 19, 2014. 

In a March 21, 2014 diagnostic report, Dr. Jocelyn Scheinert, a Board-certified diagnostic 

radiologist, reported that an x-ray of the nasal bone revealed no fracture. 

Handwritten treatment notes dated March 26 through May 21, 2014 from Central 

Medical Services of Westrock were also submitted. These reports did not contain a legible 

signature. 

In an April 29, 2014 progress note, Dr. Matthew Clarke, Board-certified in family 

medicine, noted treatment for the neck and back. 

In a May 21, 2014 Attending Physician’s Report (Form CA-20) and prescription note, 

John Mullin, a certified physician assistant, documented appellant’s treatment. 

In a May 13, 2014 report, Dr. Lily Belfi, a Board-certified diagnostic radiologist, 

provided diagnostic findings pertaining to an x-ray of the cervical spine. Her impression of mild 

grade 1 retrolisthesis of C4-5, moderate left-sided neural foraminal narrowing at C4-5, and mild 

left-sided neuroforaminal narrowing at C3-4 and C5-6. 

In a June 18, 2014 note, Dr. Jean Xiao, Board-certified in internal medicine, reported that 

appellant was unable to work due to a work-related condition sustained on March 19, 2014. He 

diagnosed neck and back pain and provided work restrictions. 

 2

 5 U.S.C. § 8101 et seq.

3

 The Board notes that appellant submitted additional evidence after OWCP rendered its November 3, 2015 

nonmerit decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time 

of its final decision. Therefore, this additional evidence cannot be considered for the first time by the Board on 

appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 

36 n.2 (1952). 
3

By letter dated June 24, 2014, OWCP notified appellant that her claim was initially 

administratively handled to allow medical payments as her claim appeared to involve a minor 

injury resulting in minimal or no lost time from work. However, the merits of her claim had not 

been formally considered and her claim had been reopened because a claim for wage loss had 

been received. Appellant was advised of the medical and factual evidence needed to support her 

claim and was afforded 30 days to respond. 

In a June 18, 2014 narrative report, Dr. Xiao reported that appellant was employed as an 

accounting technician and sustained a work-related injury on March 19, 2014. Appellant 

sustained injury to her neck, back, face, shoulder, and hands when a gate fell on her. 

In a June 29, 2014 State of New York Workers’ Compensation Form, Dr. Xiao reported 

that appellant was an accounting technician and was injured on March 19, 2014 when she was 

performing accounting work. He diagnosed unspecified backache, cervicalgia, and unspecified 

derangement of joint of shoulder region. When asked if the incident as described by appellant 

was the competent medical cause of her injury/illness, Dr. Xiao checked the box marked “yes.” 

In a July 9, 2014 Form CA-20, Dr. Michael Hearns, Board-certified in occupational 

medicine, diagnosed traumatic neck pain, headaches, bilateral shoulder pain, and chest wall pain. 

He noted the date of injury as March 19, 2014 when appellant was hit by a gate at her job. 

Dr. Hearns checked the box marked “no” when asked if the condition was caused or aggravated 

by the employment activity. 

By decision dated July 25, 2014, OWCP denied appellant’s claim as the evidence of 

record was insufficient to establish that she sustained an injury because she did not submit any 

medical evidence containing a medical diagnosis in connection with the accepted March 19, 

2014 employment incident. It noted that the medical evidence submitted contained a diagnosis 

of “pain” which is a symptom, but not a diagnosed medical condition. 

On August 11, 2014 appellant requested review of the written record before an OWCP 

Branch of Hearings and Review hearing representative. 

In support of her claim, appellant submitted medical reports dated March 19, 2014 from 

Roosevelt Hospital. In the March 19, 2014 report, Dr. Resa Lewiss, Board-certified in 

emergency medicine, reported that appellant was at work when a gate hit her in the nose and left 

shoulder. She diagnosed contusion at multiple sites and noted the external cause of injury as 

accident on industrial premises. 

Handwritten treatment notes dated March 26 through August 13, 2014 from Central 

Medical Services of Westrock were also resubmitted. While many of the reports did not contain 

a legible signature, it appears that some of the reports were signed by PA Mullin. 

In a June 5, 2014 diagnostic report, Dr. Belfi reported that an x-ray of the 

acromioclavicular joint, facial bones, left shoulder, right shoulder, chest, and lumbar spine 

revealed no acute fracture or dislocation. 
4

In an August 11, 2014 Form CA-20, Dr. Hearns diagnosed herniated disc of the neck and 

back. He checked the box marked “no” when asked if the condition was caused or aggravated by 

the employment activity noting that appellant was hit by a gate. 

Physical therapy notes dated July 14 through 24, 2014 were submitted documenting 

treatment. 

In a September 26, 2014 report, Dr. Puneet S. Pawha, a Board-certified diagnostic 

radiologist, provided findings pertaining to a magnetic resonance imaging scan of the cervical 

spine. 

In an October 9, 2014 report, Dr. Houman Danesh, Board-certified in physical medicine 

and rehabilitation, diagnosed cervical radiculopathy and left shoulder impingement. 

By decision dated February 18, 2015, the hearing representative affirmed the July 25, 

2014 decision finding that the evidence of record failed to provide a medical diagnosis which 

could be reasonably attributed to the March 19, 2014 employment incident. 

By letter dated June 12, 2015 and received by OWCP on June 25, 2015 appellant, 

through counsel, requested reconsideration. Counsel argued that the medical reports submitted 

were not properly considered or developed by OWCP which established that her injury was 

causally related to the March 19, 2014 employment incident. He referenced Dr. Xiao’s June 19, 

2014 report as the basis for his claim. Counsel noted that the physician provided a diagnosis of 

cervicalgia and also established that the diagnosed medical condition was causally related to the 

work injury. He asserted that OWCP placed an unreasonably high burden of proof upon 

appellant and that it had a duty to assist in the development of the evidence. No other evidence 

was submitted with counsel’s arguments. 

By decision dated November 3, 2015, OWCP denied appellant’s request for 

reconsideration, finding that she neither raised substantive legal questions nor included relevant 

and pertinent new evidence. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations provide 

that when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration 

without reopening the case for a review on the merits.5

 4 D.K., 59 ECAB 141 (2007). 

5 K.H., 59 ECAB 495 (2008). 
5

ANALYSIS 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

In the June 12, 2015 application for reconsideration, counsel did not establish that OWCP 

erroneously applied or interpreted a specific point of law. He did not advance a new and relevant 

legal argument. Counsel for appellant argued that Dr. Xiao’s June 29, 2014 report, which 

established a diagnosed condition causally related to the March 19, 2014 employment incident, 

was not properly reviewed. He further argued that there was an unreasonably high burden of 

proof on her to establish her claim and that OWCP should develop the evidence. 

The Board finds that counsel’s argument has no reasonable color of validity.6 The 

claimant has the burden of establishing by the weight of reliable, probative, and substantial 

evidence that the condition for which compensation is sought is causally related to a specific 

employment incident or to specific conditions of the employment.7 As part of this burden, the 

claimant must present rationalized medical opinion evidence, based upon a complete and 

accurate factual and medical background, establishing causal relationship.8 The Board notes that 

OWCP provided a June 24, 2014 development letter advising appellant of the evidence required 

to establish her claim. Furthermore, OWCP properly reviewed Dr. Xiao’s report in its July 25, 

2014 decision finding that it was insufficient to establish appellant’s claim. Counsel did not 

establish an error on a specific point of law or advance a relevant legal argument not previously 

considered by OWCP.9 As such, appellant was not entitled to a review of the merits of her claim 

based on the first and second above-noted requirements under section 10.606(b)(3).10

The Board notes that the underlying issue in this case was whether appellant sustained a 

diagnosed condition causally related to the accepted March 19, 2014 employment incident. This 

is a medical issue which must be addressed by relevant medical evidence.11 A claimant may 

obtain a merit review of an OWCP decision by submitting relevant and pertinent new evidence. 

 6 See L.H., 59 ECAB 253 (2007) (while the reopening of a case may be predicated solely on a legal premise not 

previously considered, such reopening is not required where the legal contention does not have a reasonable color of 

validity). 

7 Michael E. Smith, 50 ECAB 313 (1999). 

8 See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also 

Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985). 

9 A.T., Docket No. 14-417 (issued June 25, 2014). 

10 20 C.F.R. § 10.606(b)(3). 

11 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
6

Appellant failed to submit any such new evidence addressing a medical diagnosis and causal 

relationship in support of her claim.12 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further review of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the February 18, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 26, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 C.B., Docket No. 08-1583 (issued December 9, 2008).