United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.D., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Decatur, GA, Employer 

__________________________________________ 

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Docket No. 16-1484 

Issued: January 6, 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 

COLLEEN DUFFY KIKO, Judge 

 

JURISDICTION 

On July 12, 2016 appellant, through counsel, filed a timely appeal from a May 6, 2016 

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

180 days elapsed from the last merit decision dated May 15, 2015, 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 to review 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

 5 U.S.C. § 8101 et seq.
2

ISSUE 

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

pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On September 18, 2012 appellant filed a traumatic injury claim (Form CA-1) alleging 

that on September 4, 2012, she was repositioning a patient when she hurt her chest and upper 

back. She did not indicate on the claim form that she had stopped work. On April 16, 2014 

OWCP accepted appellant’s claim for thoracic sprain, lumbar sprain, right shoulder sprain, and 

cervical sprain. 

Appellant initially submitted hospital reports indicating that she was treated on 

September 11, 2012 in the emergency department. She also submitted multiple progress reports 

from Dr. Rohit Manushai Desai, a Board-certified internist dated from September 20, 2012 

through September 18, 2013. Dr. Desai diagnosed thoracic sprain/strain, lumbar sprain/strain, 

muscle pain, and shoulder sprain/strain. In notes dating from September 20 to October 31, 2012 

he related that appellant had been advised to stay off work. 

On June 16, 2014 appellant filed a claim for leave without pay (Form CA-7) for the 

period October 20, 2012 through January 14, 2013. 

By letter dated July 18, 2014, OWCP afforded appellant 30 days to submit medical 

information necessary to support her claim. Appellant did not respond. 

By decision dated August 26, 2014, OWCP denied appellant’s claim as the medical 

evidence of record failed to support that she was totally disabled for the claimed period. 

On September 2, 2014 OWCP received appellant’s request for a telephonic hearing 

before an OWCP hearing representative. 

At the hearing held on February 26, 2015 appellant testified that she was unable to work 

from October 20, 2012 to January 14, 2013. She noted that she was hurt on September 9, 2012, 

and was under medical care. Appellant indicated that she returned to work on January 14, 2013. 

By decision dated May 15, 2015, OWCP’s hearing representative affirmed the denial of 

compensation benefits for the period October 20, 2012 through January 14, 2013, finding that 

there was no rationalized medical evidence supporting disability during the claimed period due 

to her employment injury. 

On November 16, 2015 counsel requested reconsideration. He resubmitted a 

September 4, 2013 form report by Dr. Desai. In this report Dr. Desai noted appellant’s history of 

injury and related diagnoses of shoulder, arm, thoracic and lumbar spine sprain. He concluded 

that a cause of her diagnosed conditions was the accepted employment incident. 

By decision dated May 6, 2016, OWCP denied reconsideration without conducting a 

merit review. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

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.4 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.5

 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.6

 

When a reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the 

claimant’s right to review of the merits of the case by the Board, OWCP should conduct a merit 

review. That is, the basis of the original decision and any new evidence should be considered 

and, if there is no basis to change the original decision, an order denying modification (rather 

than denying the application for review) should be prepared. There is no obligation to conduct a 

merit review on insufficient evidence if the maximum 180-day time limit for requesting review 

by the Board will have expired in the 90-day period following OWCP’s receipt of the claimant’s 

reconsideration request.7

ANALYSIS 

OWCP accepted that on September 4, 2012 appellant sustained sprain of the thoracic and 

lumbar regions of her back, a sprain of her right shoulder and upper arm, and sprain of her neck 

causally related to an accepted employment incident. However, in a decision dated August 26, 

2014, it denied appellant’s claim for wage-loss compensation for the period October 20, 2012 

through January 14, 2013. This decision was affirmed by the hearing representative in a decision 

dated May 15, 2015. By letter received by OWCP on November 16, 2015, appellant, through 

counsel, requested reconsideration. It denied appellant’s request in a decision dated May 6, 2016 

without reviewing the merits of the case. 

As noted above, the Board does not have jurisdiction over the merits of the May 15, 2015 

decision. 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 further review of the merits of 

her claim. The Board finds that in her November 16, 2015 request for reconsideration appellant 

 3 5 U.S.C. §§ 8128 (a). Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against 

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

4 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608(b). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011); 

M.D., Docket No. 13-1344 (issued November 7, 2013). 
4

did not show that OWCP erroneously applied or interpreted a specific point of law, and she did 

not advance a relevant legal argument not previously considered by OWCP. Thus, she 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). 

The underlying issue in this case is whether appellant has established that she was 

disabled during the period October 20, 2012 through January 14, 2013. A claimant may be 

entitled to a merit review by submitting new, relevant and pertinent evidence, but appellant has 

not submitted new relevant and pertinent evidence not previously considered by OWCP. 

Counsel submitted no new relevant and pertinent evidence with his reconsideration 

request. The September 4, 2013 report from Dr. Desai that counsel submitted had previously 

been submitted on October 10, 2013, and it offered no opinion regarding appellant’s disability 

status. Although reference is made by OWCP in the May 6, 2016 decision to other progress 

reports by Dr. Desai, the record does not reflect that these reports were submitted with the 

November 16, 2015 reconsideration request. Nevertheless, the reports listed by OWCP are 

duplicates of evidence already in the record. Evidence or arguments that are duplicative, 

cumulative, or repetitive in nature are insufficient to warrant reopening a claim for merit review.8

 

Appellant has not met any of the other criteria warranting reopening of her claim for further 

merit review. Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

Counsel further argues on appeal that OWCP failed to issue a timely decision regarding 

the request for reconsideration, and that this prejudiced appellant’s appeal rights. The Board 

notes that OWCP has a timeliness goal for issuing reconsideration decisions of within 90 days 

from receipt of the request.9

 OWCP procedures provide that when a reconsideration decision is 

delayed beyond 90 days and the delay jeopardizes the claimant’s right to review the merits of the 

case by the Board, OWCP should conduct a merit review. However, the procedure manual notes 

that there is no obligation to conduct a merit review on insufficient evidence if the maximum 

180-day time limit for requesting review by the Board will have expired within the 90-day period 

following OWCP’s receipt of the claimant’s reconsideration request. The last merit decision in 

this case was the May 15, 2015 decision of the hearing representative. Appellant had 180 days 

after this decision, or until November 11, 2015, to appeal that decision to the Board. OWCP 

received the reconsideration request on November 16, 2015. Accordingly, it received appellant’s 

reconsideration request after the 180-day period for appeal expired, and therefore OWCP’s delay 

in issuing the decision on the request for reconsideration did not impact appellant’s appeal 

rights.10 Therefore, counsel’s argument on appeal is without merit. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

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

 8 Denis M. Dupor, 51 ECAB 482 (2000). 

9

 M.D., Docket No. 13-1344 (issued November 7, 2013). 

10 B.D., Docket No. 15-0400 (issued May 12, 2016). 
5

ORDER 

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

Compensation Programs dated May 6, 2016 is affirmed. 

Issued: January 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board