United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Covington, KY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1141 

Issued: November 7, 2016 

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 May 9, 2016 appellant, through counsel, filed a timely appeal from an April 15, 2016 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent 

merit decision was the May 20, 2015 decision of the Board which became final after 30 days of 

issuance and is not subject to further review.2

 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 

the 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

 20 C.F.R. § 501.6(d). 

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 under 5 U.S.C. § 8128(a). 

On appeal, appellant, through counsel, contends that OWCP’s decision is contrary to fact 

and law. 

FACTUAL HISTORY 

This case has previously been before the Board.4

 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On December 2, 2013 appellant, then a 57-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on November 15, 2013 she fell on the floor at work after tripping over 

carts in the walkway, causing injury to her right hand, right wrist, and her left ankle. OWCP 

denied her claim by decision dated January 16, 2014. 

On January 24, 2014 appellant requested a hearing before an OWCP hearing 

representative. By decision dated October 17, 2014, the hearing representative affirmed the 

denial of the claim. The hearing representative noted that appellant failed to submit medical 

evidence to establish a medical condition causally related to the accepted November 15, 2013 

employment incident. 

Appellant appealed to the Board on January 29, 2015. By decision dated May 20, 2015, 

the Board affirmed the denial of the claim and found that appellant failed to meet her burden of 

proof to establish an injury causally related to the November 15, 2013 employment incident. In 

reviewing the evidence of record, the Board specifically found that the evidence of record 

included notes by physical therapists and nurse practitioners, as well as hospital records which 

were not signed by a physician, and a December 20, 2013 attending physician’s report containing 

an illegible signature. The Board concluded that the documents submitted in support of 

appellant’s claim did not constitute rationalized medical evidence, from a physician under 

FECA, establishing causal relationship.5

 By letter dated November 11, 2015, received by OWCP on November 16, 2015, 

appellant, through counsel, requested reconsideration. In support thereof appellant submitted 

multiple documents, including multiple notes from Contra Medical Center including an intake 

chart with an illegible signature; notes by nurses and physical therapists dated November 26 and 

December 3 and 5, 2013; a November 27, 2013 Ohio Workers’ Compensation form completed 

by a nurse practitioner, a record from Christ Hospital listing appellant’s prescriptions; a 

supervisor’s summary of appellant’s claim; appellant’s summary of the claim dated 

November 26, 2013; clinical notes signed by a nurses from July 11 through October 23, 2013; 

 4

 Docket No. 15-650 (issued May 20, 2015). 

5 Id. 
3

and a copy of the attending physician’s report (Form CA-16) dated December 20, 2013 bearing 

an illegible signature. OWCP also received a November 27, 2013 report cosigned by 

Dr. Stephen T. Lewis, an osteopath, on November 28, 2013, wherein he listed impressions of: 

(1) fall from other slipping, tripping, or stumbling; and (2) musculoskeletal pain. 

 By decision dated April 15, 2016, OWCP denied appellant’s request for reconsideration 

without merit review under 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT 

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

OWCP’s 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.6 When a claimant fails to meet one 

of the above standards, OWCP will deny the application for reconsideration without reopening 

the case for review on the merits.7

 

It is well established that the requirement for reopening a claim for further merit review 

before OWCP does not require a claimant to submit all evidence necessary to discharge his 

burden of proof. Rather, the requirement for reopening a case specifies only that the evidence be 

relevant, pertinent, and not previously considered by OWCP. The presentation of such new 

evidence creates the necessity for review of the full case record in order to properly determine 

whether the newly submitted evidence warrants modification of an earlier decision.8

ANALYSIS 

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

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

By decision dated May 20, 2015, the Board affirmed the denial of appellant’s claim and 

found that she failed to meet her burden of proof to establish an injury causally related to the 

November 15, 2013 employment incident as she had failed to present sufficient medical 

evidence. 

Counsel submitted a timely request for reconsideration of the May 20, 2015 merit 

decision, received by OWCP on November 16, 2015. In support of the request multiple 

documents were submitted including several notes from Contra Medical Center which contained 

an intake chart with an illegible signature; notes by nurses and physical therapists dated 

November 26, and December 3 and 5, 2013; a November 27, 2013 Ohio Workers’ Compensation 

form completed by a nurse practitioner; a record from Christ Hospital listing appellant’s 

prescriptions; a supervisor’s summary of appellant’s claim; appellant’s summary of the claim 

 6 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(b). 

8 F.D. (S.D.), 58 ECAB 413 (2007). 
4

dated November 26, 2013; clinical notes signed by a nurses from July 11 through October 23, 

2013; and a copy of the attending physician’s report (Form CA-16) dated December 20, 2013 

bearing an illegible signature. OWCP also received a November 27, 2013 report cosigned by 

Dr. Stephen T. Lewis, an osteopath, on November 28, 2013, wherein he listed impressions of: 

(1) fall from other slipping, tripping, or stumbling; and (2) musculoskeletal pain. 

Appellant’s request for reconsideration did not show that OWCP erroneously interpreted 

a point of law nor did it advance a legal argument not previously considered.9

 She did submit 

evidence in support of her request for reconsideration. 

However, the Board finds that appellant failed to submit evidence with her 

reconsideration request that is sufficient to warrant merit review. Appellant resubmitted 

evidence already of record, including, inter alia, her summary of her claim, hospital records 

listing medications, nurse practitioners’ notes from November 29 through December 9, 2013, 

and the illegibly signed December 20, 2013 Form CA-16. The Board has found that evidence 

which is repetitive, duplicative, or cumulative in nature is insufficient to warrant reopening a 

claim for merit review.10 

The new evidence submitted is also insufficient to warrant merit review. The underlying 

issue in this case was whether appellant submitted medical evidence establishing a medical 

condition causally related to the accepted November 15, 2013 employment incident. Causal 

relationship is a medical issue that must be addressed by medical evidence.11 Appellant failed to 

submit any relevant and pertinent new evidence in support of her reconsideration request. 

Although appellant submitted a November 27, 2013 report that was now signed by Dr. Lewis, 

this report failed to provide a rationalized medical opinion that addressed the pertinent issue of 

causal relationship.12 

Appellant also submitted additional records from her hospital visit and additional nursing 

notes. However, these reports were repetitive of the evidence already of record and were not 

signed by a physician. Therefore these additional records do not constitute relevant medical 

evidence.13 

Similarly appellant’s supervisor’s statement is a lay opinion and is irrelevant to the 

underlying medical issue of causal relationship and is therefore insufficient to reopen the case for 

a merit review.14

 9 Supra note 7. 

10 J.B., Docket No. 14-1164 (issued November 20, 2014); Denis M. Dupor, 51 ECAB 482 (2000). 

11 D.H., Docket No. 15-1480 (issued June 7, 2016). 

12 See A.M., Docket No. 16-0499 (issued June 28, 2016). 

13 Supra note 11. 

14 C.H., Docket No. 16-808 (issued July 21, 2016). 
5

The Board finds that 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(b), OWCP properly denied appellant’s request for reconsideration of the 

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

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 15, 2016 is affirmed. 

Issued: November 7, 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