United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINSTRATION, 

Fort Wayne, IN, Employer 

__________________________________________ 

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Docket No. 17-0345 

Issued: May 1, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 5, 2016 appellant,2 through counsel, filed a timely appeal from an 

August 22, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed from the last merit decision, dated May 26, 2016, to the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3 the Board lacks jurisdiction over the merits of this case. 

 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

 Appellant initially filed her appeal pro se and requested an oral argument before the Board. She subsequently 

authorized counsel to represent her on the appeal. On March 13, 2017 appellant, through counsel, withdrew her oral 

argument request. 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration of 

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

FACTUAL HISTORY 

On March 20, 2016 appellant, then a 61-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained leg, ankle, and foot conditions in the 

performance of duty on June 26, 2015. She described her work duties on June 26, 2015 as 

checking and replacing oxygen tanks, making charts, stocking medical supply cabinets, 

transporting patients in the hospital, changing bed sheets, dumping dirty linens, taking patient’s 

vital signs, removing intravenous lines, and plugging up beds. 

In an accompanying statement, appellant described additional work duties including 

transporting patients by wheelchair to the lobby, preparing clinic rooms, and restocking the 

blanket warmer. She indicated that it became very uncomfortable to stand and walk, requiring 

her to use foot and ankle support. 

Appellant submitted an unsigned medical note dated October 6, 2015 diagnosing left 

posterior tibial tendinitis and left pes planus. 

In a letter dated April 22, 2016, OWCP requested additional factual and medical evidence 

in support of appellant’s traumatic injury claim. It noted that she had not submitted sufficient 

factual evidence to substantiate an employment incident and further noted that no diagnosis of 

any condition resulting from her injury had been provided. OWCP provided appellant with a 

questionnaire in which it asked her to describe in detail how the claimed injury occurred. It 

afforded her 30 days for a response. 

On May 16 and 23, 2016 Dr. Gage Caudell, a podiatrist, diagnosed posterior tibial 

tendinitis and pes planus of the left foot. He recommended testing to determine if appellant’s 

posterior tibial tendon was torn. Dr. Caudell opined that her foot condition was related to her flat 

foot. 

By decision dated May 26, 2016, OWCP denied appellant’s claim, finding that she had 

not established fact of injury. It noted that she had not submitted sufficient factual evidence to 

establish that the employment events occurred as alleged. 

Appellant submitted an additional May 23, 2016 note from Dr. Caudell in which he 

opined that her primary problem was her tendon and her flatfoot. Dr. Caudell also implicated an 

injury to the joint cartilage and injected her left anterolateral ankle with lidocaine. On June 20, 

2016 he diagnosed posterior tibial tendinitis and pes planus of the left lower extremity as well as 

osteochondritis dissecans of the left talus and gastrocnemius equinus of the left lower extremity. 

Dr. Caudell recommended surgery. 

Appellant requested reconsideration from OWCP on June 27, 2016. She submitted 

notification of a left subtalar arthrodesis scheduled for September 15, 2016 and a postoperative 
3

appointment with Dr. Caudell dated September 26, 2016. Appellant also resubmitted the 

statement that accompanied her Form CA-1. 

By decision dated August 22, 2016, OWCP denied appellant’s request for 

reconsideration, finding that the evidence submitted in support of her request for reconsideration 

was irrelevant or immaterial and had no bearing on the underlying issue which pertained to the 

time, place, and manner of her alleged traumatic injury. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.4 

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain 

review of the merits of the claim by submitting in writing an application for reconsideration 

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.5 

Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is 

timely, but does meet at least one of these three requirements, OWCP will deny the application 

for review without reopening the case for a review on the merits.6

 Section 10.607(a) of OWCP’s 

regulations provides that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.7

ANALYSIS 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

Appellant filed a timely request for reconsideration of OWCP’s May 26, 2016 merit 

decision on June 27, 2016. In support of her request for reconsideration, she resubmitted a 

statement that accompanied her original claim. Appellant also submitted additional notes from 

Dr. Caudell, dated May 23 and June 20, 2016 diagnosing posterior tibial tendinitis and pes 

planus of the left lower extremity as well as osteochondritis dissecans of the left talus and 

gastrocnemius equinus of the left lower extremity. She also provided evidence of surgery 

schedule for September 15, 2016 and a postoperative appointment with Dr. Caudell dated 

September 26, 2016. 

 4

 5 U.S.C. §§ 8101-8193, 8128(a). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608. 

7

 20 C.F.R. § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 

2.1602.4 (February 2016). 
4

OWCP denied appellant’s claim as she failed to provide factual evidence sufficient to 

establish that an employment incident occurred on June 26, 2015 as alleged. 

The evidence submitted with appellant’s reconsideration request did not provide any new 

information pertaining to the underlying issue of how the claimed injury occurred. While she 

resubmitted a factual statement describing her work duties, the Board has held that evidence or 

argument that repeats or duplicates evidence previously of record has no evidentiary value and 

does not constitute a basis for reopening a case.8

 The Board also notes that, as the underlying 

issue is factual in nature, the medical evidence submitted from Dr. Caudell is irrelevant as the 

factual component of appellant’s claim has not been established. The Board has held that the 

submission of evidence which does not address the particular issue involved does not constitute a 

basis for reopening a case.9

Therefore, the Board finds that appellant has not shown that OWCP erroneously applied 

or interpreted a specific point of law, advanced a relevant legal argument not previously 

considered by OWCP, or submitted relevant and pertinent new evidence not previously 

considered. As appellant did not meet any of the necessary regulatory requirements, she is not 

entitled to further merit review.10 

On appeal, appellant disagrees with OWCP’s denial of her claim and asserts that she was 

permanently injured on the job. However, as explained, the Board lacks jurisdiction over the 

merits of the claim. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

 8 C.N., Docket No. 08-1569 (issued December 9, 2008). 

9 B.T., Docket No. 16-0785 (issued September 21, 2016); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. 

Williams, 52 ECAB 180 (2000). 

10 B.T., id. 
5

ORDER 

IT IS HEREBY ORDERED THAT the August 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 1, 2017 

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