United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.S., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Glenville, WV, 

Employer

__________________________________________

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Docket No. 16-0889

Issued: October 10, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 29, 2016 appellant, through counsel, filed a timely appeal from a February 25, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision, dated September 23, 2014, 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 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

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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On December 30, 2013 appellant, then a 40-year-old senior correctional officer, filed a 

traumatic injury claim (Form CA-1) for a lower back condition that allegedly arose on 

December 16, 2013 while breaking up an altercation between inmates. He indicated that he 

responded to an announcement that there was a fight in the C-3 unit. Appellant then pulled one 

inmate off another inmate, and one of the inmates then swung and struck him in the nose. He

indicated that he “took the inmate to the ground to restrain him.” Appellant claimed to have 

tweaked something in his lower back, and was currently awaiting test results to determine the 

extent of his injury. The employing establishment indicated that appellant had not informed his 

supervisor that he injured his back.

Employee health unit records from December 16, 2013 indicated that appellant was 

breaking up a fight when an inmate struck him in the nose. No medical attention was necessary 

at the time. Appellant was advised to follow up with his primary care physician. 

On December 18, 2013 appellant was seen in the emergency department at Roane 

General Hospital at which time he was treated by Dr. Daniel B. Prudich, Board-certified in 

internal medicine, for complaints of left-sided back pain and was taken off work for three days. 

He was also treated for back pain at Roane General Hospital on December 22, 2013 by

Dr. Paul J. Clancy, a specialist in emergency medicine, who diagnosed low back pain with 

sciatica.

On December 23, 2013 Amber Knowlton, a certified physician assistant, excused 

appellant from work through January 6, 2014.

A January 2, 2014 lumbar magnetic resonance imaging (MRI) scan showed multilevel 

degenerative changes of the lumbar spine, including an annular tear at L4-5.

On January 6, 2014, Donna Shanholtzer, a family nurse practitioner, excused appellant 

from work for the dates of January 6 and 7, 2014.

On January 17, 2014 OWCP advised appellant that it required additional factual and 

medical evidence to determine whether he was eligible for compensation benefits. It asked him 

to submit a comprehensive report from a treating physician describing his symptoms and the 

medical reasons for his condition, including an opinion as to whether his claimed condition was 

causally related to his federal employment. OWCP afforded appellant 30 days to submit this 

evidence.

OWCP received December 23, 2013 treatment notes from Ms. Knowlton, who provided 

an assessment of low back pain and neuralgia/neuritis/radiculitis. Appellant also submitted 
3

January 6, 2014 treatment notes from Ms. Shanholtzer, who provided the same assessment as

Ms. Knowlton.3

In a January 7, 2014 report, Dr. Roshan A. Hussain, Board-certified in family practice, 

advised that appellant had twisted his back during a fight/scuffle at work and was experiencing 

severe low back pain. He reported that appellant was unable to return to work. Dr. Hussain 

noted muscle spasms in his cervical, thoracic, and lumbar spine, in addition to left leg numbness 

and tingling, which suggested some radicular pain and sciatic nerve involvement. He 

recommended that appellant undergo a lumbar spine MRI scan and be referred to an orthopedic 

surgeon. Dr. Hussain placed appellant off work for two weeks.

In a January 22, 2014 report, Dr. Hussain noted that appellant had been experiencing 

moderate pain in his lumbosacral spine for two months. He reported that he had sustained 

trauma from a work injury and advised that his back pain was exacerbated by bending and 

standing for long periods. Dr. Hussain noted that the results of a lumbar MRI scan showed 

bulging discs at L3-S1, spinal canal narrowing, and central disc protrusion with no obvious 

neurological abnormality.

By decision dated February 18, 2014, OWCP denied the claim based on appellant’s 

failure to establish fact of injury. It found that the evidence of record was insufficient to 

establish that the December 16, 2013 incident occurred as alleged.

On March 5, 2014 appellant requested a review of the written record before the Branch of 

Hearings and Review.

Dr. Hussain submitted reports dated February 20 and March 5, 2014 in which he noted 

that appellant continued to experience low back pain and essentially reiterated his previous 

findings and conclusions. In his March 5, 2014 report, he advised that appellant continued to 

have persistent, worsening problems with low back pain. Dr. Hussain noted that he injured his 

back at work in December 2013 while breaking up scuffles with prisoners. He related that 

appellant was diagnosed with sciatica and subsequently underwent an MRI scan which showed a 

bulging disc. Dr. Hussain determined that he was unable to work his regular job, which required 

heavy lifting, pushing, pulling, and involved the risk of breaking up fights at the prison. He 

noted that appellant currently had no physical disability and no identifiable neurological 

abnormality.

By decision dated September 23, 2014, OWCP’s hearing representative found that 

appellant had established fact of injury. However, she denied appellant’s traumatic injury claim 

because the medical evidence of record failed to establish a causal relationship between 

appellant’s diagnosed lumbar condition and the December 16, 2013 accepted employment 

incident. Accordingly, the hearing representative affirmed as modified the prior denial of 

appellant’s traumatic injury claim.

On September 15, 2015 appellant submitted 51 pages of medical reports from

Dr. Hussain January through October 2014, which documented his treatment of appellant’s back 

 

3 Both Ms. Knowlton and Ms. Shanholtzer are associated with Roane County Family Health Care Inc.
4

condition and essentially reiterated his previous findings and conclusions. With a letter dated 

February 15, 2016, received February 19, 2016, counsel enclosed a copy of a reconsideration 

request dated September 8, 2015 and a signed certified return receipt indicating receipt by 

OWCP on September 14, 2015. Counsel also submitted 26 pages of medical reports from

Dr. Hussain which documented treatment for mild-to-moderate upper back pain, middle back 

pain, and lower back pain during office visits dated February 20, March 5, May 22, June 18 and

25, September 17 and October 15, 2014; 24 pages of medical reports from Dr. Hussain 

documenting treatment for back pain during office visits dated January 7, 22, and 30, February 5

and 20, and March 5, 2014; and the January 2, 2014 MRI scan report which was previously 

submitted. 

In a December 18, 2013 report, Dr. Daniel B. Prudich, Board-certified in internal 

medicine, noted that appellant had pain in his lumbar spine and paraspinous muscles. He noted 

that appellant had been experiencing lower back pain for one month, but the pain had become 

more severe.

In a December 22, 2013 report, Dr. Clancy noted that appellant was experiencing low 

back pain. He diagnosed sciatica.

By decision dated February 25, 2016, OWCP denied appellant’s September 14, 2015 

reconsideration request without conducting a merit review. It explained that some of the 

evidence submitted on reconsideration was previously of record and other additional evidence 

did not specifically address the issue of causal relationship. Consequently, OWCP found that 

further merit review was unwarranted.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.6 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.7 When a timely application for reconsideration does not meet at least one 

 

4 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

7

20 C.F.R. § 10.606(b)(3).
5

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.8

ANALYSIS

In his September 14, 2015 request for reconsideration, counsel neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Additionally, he did not advance any relevant legal arguments not previously considered by 

OWCP. Accordingly, appellant is not entitled to a review of the merits based on the first and 

second requirements under section 10.606(b)(3).9

Appellant also failed to submit any relevant and pertinent new evidence with his request 

for reconsideration. Much of the evidence received since OWCP’s September 23, 2014 merit 

decision was already of record, and thus, does not provide a basis for reopening the claim for 

merit review.10 Additional treatment records from Dr. Hussain, covering the period May 22 

through October 15, 2014, continue to diagnose lumbago and lumbar/lumbosacral disc 

degeneration, but do not explain how appellant’s lumbar condition is causally related to the 

accepted December 16, 2013 employment incident. Submission of evidence that does not 

address the particular issue involved in the case does not constitute a basis for reopening a 

claim.11 Because appellant did not provide OWCP with any relevant and pertinent new 

evidence, he is not entitled to a review of the merits based on the third requirement under section 

10.606(b)(3).12 Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C. 

§ 8128(a).

CONCLUSION

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

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

 

8

Id. at § 10.608(a), (b).

9

Id. at § 10.606(b)(3)(i) and (ii).

10 Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

11 See David J. McDonald, 50 ECAB 185 (1998).

12 20 C.F.R. § 10.606(b)(3)(iii).
6

ORDER

IT IS HEREBY ORDERED THAT that the February 25, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 10, 2017

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