United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ATLANTA MEDICAL CENTER, Decatur, GA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-0384

Issued: July 19, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 18, 2017 appellant filed a timely appeal from a September 20, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 

days elapsed from the last merit decision dated June 5, 2017, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the 

Board lacks jurisdiction over the merits of the claim.

ISSUE

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

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

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On March 9, 2015 appellant, then a 45-year-old nurse’s assistant, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date,she experienced left arm pain while she was assisting 

a patient, when he grabbed her hands and pulled himself up. She alleged that she developed left 

arm, shoulder, and neck numbness and swelling as well as a cervical spine condition. Appellant

submitted medical evidence in support of her claim.

By decision dated May 7, 2015, OWCP denied appellant’s traumatic injury claim, finding 

that she failed to submit medical evidence establishing causal relationship between her diagnosed 

conditions and the March 9, 2015 employment incident.

On November 6, 2015 appellant, through her then-counsel, requested reconsideration of 

the May 7, 2015 decision. By decision dated January 21, 2016, OWCP reviewed the merits of 

appellant’s traumatic injury claim, but denied modification of its May 7, 2015 decision. It found 

that the medical evidence submitted was not based on a complete factual and medical background 

and was, therefore, of limited probative value.

On March 21, 2016 appellant, through her then-counsel, requested reconsideration of the 

January 21, 2016 decision and submitted additional medical evidence. By decision dated May 17, 

2016, OWCP reviewed the merits of appellant’s claim, but denied modification of its January 21, 

2016 merit decision. It found that the new medical evidence provided did not include an opinion 

on causal relationship between appellant’s diagnosed conditions and her March 9, 2015 

employment incident.

On June 28, 2016 appellant requested reconsideration of the May 17, 2016 decision. In 

support of her request, she provided additional medical evidence. By decision dated September 14, 

2016, OWCP reviewed the merits of appellant’s claim, but denied modification of its May 17, 

2016 merit decision. It found that the new medical evidence submitted did not provide a 

rationalized opinion addressing causal relationship.

On September 19, 2016 appellant requested reconsideration. She did not submit any 

additional evidence. In a September 22, 2016 decision, OWCP denied reconsideration of the 

merits of appellant’s claim.

On October 5, 2016 appellant again requested reconsideration and submitted medical 

evidence. In a November 29, 2016 decision, OWCP reviewed the merits of appellant’s claim, but

denied modification of its May 17, 2016 merit decision, finding that the additional medical 

evidence did not address causal relationship.

On December 8, 2016 appellant requested reconsideration of the November 29, 2016 merit 

decision. By decision dated December 13, 2016, OWCP denied reconsideration of the merits of 

appellant’s claim.

On December 21, 2016 appellant again requested reconsideration of the November 29, 2016 

merit decision and submitted additional medical evidence. By decision dated January 18, 2017, 

OWCP denied reconsideration of the merits of appellant’s claim.
3

On April 4, 2017 appellant again requested reconsideration of OWCP’s November 29, 2016 

decision. In support of this request, she provided a detailed statement regarding how her March 9, 

2015 employment injury occurred. Appellant also provided a March 15, 2017 note from

Dr. Michele M. Johnson, Board-certified in neurosurgery noting her history of injury. She also 

provided her September 29, 2015 cervical magnetic resonance imaging (MRI) scan report. By 

decision dated June 5, 2017, OWCP reviewed the merits of appellant’s claim, but denied 

modification of its November 29, 2016 merit decision. It again found that appellant had not 

submitted a rationalized medical opinion establishing causal relationship.

Appellant requested reconsideration of the June 5, 2017 merit decision on 

September 7, 2017. In support of her request, she provided a statement regarding her current 

condition. Appellant also provided medical records including an August 25, 2017 treatment note

from Joseph A. Lamb, a physician assistant, and a note dated August 29, 2017 from Dr. Johnson 

recommending surgery and noting appellant’s increased left arm symptoms. She resubmitted her 

September 29, 2015 cervical MRI scan, and also provided a March 3, 2017 cervical MRI scan.

Appellant resubmitted Dr. Johnson’s March 15, 2017 treatment note.

By decision dated September 20, 2017, OWCP denied reconsideration of the merits of 

appellant’s claim.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

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.3 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant also must file his or her application 

for review within one year of the date of that decision.4 When a claimant fails to meet one of the 

above standards, OWCP will deny the application for review without reopening the case for a 

review on the merits.5

The Board has held that the submission of evidence which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case. The Board has also held 

that the submission of evidence which does not address the particular issue involved does not 

constitute a basis for reopening a case.

6

 

2 5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application.

3 20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6 D.P., Docket No. 17-0290 (issued May 14, 2018); M.E., 58 ECAB 694 (2007).
4

ANALYSIS

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

merits of her claim without further merit review.

The Board finds that appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law; nor has she advanced a relevant legal argument not previously 

considered by OWCP. Thus, appellant is 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).7

The underlying issue in this case is whether appellant has provided sufficient evidence to 

establish that her cervical and left arm conditions were causally related to the accepted March 9, 

2015 employment incident. This issue is medical in nature.

Appellant’s request for reconsideration was accompanied by a new report from

Dr. Johnson dated August 29, 2017. A claimant may be entitled to a merit review by submitting 

relevant and pertinent new evidence, but appellant did not submit any such evidence in this case.8 

Dr. Johnson’s August 29, 2017 report is substantially similar to her earlier report of March 15, 

2017 in which she noted appellant’s symptoms and recommended surgery. Providing additional 

evidence that repeats or duplicates information already in the record does not constitute a basis for 

reopening a claim.9 Appellant resubmitted her MRI scan report dated September 29, 2015 and

Dr. Johnson’s March 15, 2017 note. This evidence was previously considered by OWCP and it is 

therefore not pertinent new evidence.10 Appellant also submitted a March 3, 2017 MRI scan report. 

This report did not address the central issue in the case, whether appellant’s diagnosed conditions 

are causally related to her accepted employment incident and therefore it does not constitute relevant 

and pertinent new evidence.11 

OWCP received an August 25, 2017 note from Mr. Lamb, a physician assistant. This note 

is insufficient to warrant merit review as physician assistants are not considered physicians as defined 

under FECA.12 The Board, therefore, finds that this evidence is irrelevant to the underlying medical 

issue and is insufficient to warrant further merit review of appellant’s claim.13

 

7 20 C.F.R. § 10.606(b)(3)(i) and (ii).

8 See D.P., supra note 6; B.D., Docket No. 16-1177 (issued October 27, 2016).

9 D.P., supra note 6; James W. Scott, 55 ECAB 606, 608 n.4 (2004).

10 Id.

11 R.C., Docket No. 17-1314 (issued November 3, 2017).

12 See B.D., Docket No. 17-0402 (issued June 12, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay 

individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion 

under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law).

13 R.C., supra note 11.
5

Appellant’s reconsideration request failed to show that OWCP erroneously applied or 

interpreted a point of law, nor did it advance a point of law not previously considered by OWCP. 

It also failed to provide any relevant and pertinent new evidence. Accordingly, the Board finds 

that OWCP did not abuse its discretion in denying appellant’s request to reopen her claim for merit 

review. 

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).

ORDER

IT IS HEREBY ORDERED THAT the September 20, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 19, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board