United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.K., Appellant

and

DEPARTMENT OF THE ARMY, 

ARMY RESEARCH LABORATORY, 

Adelphi, MD, Employer

__________________________________________

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Docket No. 17-0341

Issued: October 3, 2017

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 2, 2016 appellant, filed a timely appeal from a November 17, 2016 

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

180 days elapsed from the last merit decision dated November 10, 2015, 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 this case.

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).

 

1

5 U.S.C. § 8101 et seq.

2 Appellant filed a timely request for oral argument. By order dated May 8, 2017, the Board denied appellant’s 

request as her arguments could be adequately addressed in a decision based on a review of the case record. Order 

Denying Request for Oral Argument, Docket No. 17-0341 (issued May 8, 2017).
2

FACTUAL HISTORY

This case has previously been before the Board. The facts and circumstances set forth in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth 

below. 

On December 4, 1984 appellant, then a 21-year-old secretary, sustained a traumatic 

injury while in the performance of duty. There was no activity in the record from December 4, 

1984 until December 4, 1994.3 On March 26, 1999 OWCP received appellant’s September 30, 

1997 claim for recurrence of disability (Form CA-2a). Appellant noted that she had experienced 

seizures since the 1984 injury. She submitted an undated report from Dr. Samuel J. Potolicchio, 

Jr., a Board-certified psychiatrist and neurologist, who noted that she had undergone a left frontal 

temporal craniotomy and temporal lobectomy, in November 1997, for uncontrolled seizures that 

were diagnosed as being the result of a head trauma in December 1984. The traumatic injury 

claim was originally denied by OWCP on April 20, 1999. However, OWCP, by decision dated 

May 19, 1999, accepted appellant’s claim for contusion to the face or scalp from blunt trauma.

On April 2, 2002 OWCP denied appellant’s claim for recurrence of disability as the 

evidence of record was insufficient to establish that her seizure condition was causally related to 

the accepted injury claim. 

On October 4, 2002 appellant requested reconsideration. Medical evidence included 

reports from Dr. William R. Leahy, Jr., a Board-certified neurologist, dated 1994 to 1997, who 

detailed a history of appellant’s head injury and subsequent treatment. Dr. Leahy’s April 11, 

1994 report noted that appellant had not had a seizure in six months. Also provided was an 

April 28, 1999 report from Dr. Peter M. Schissler, a Board-certified internist. 

Appellant also submitted reports from Dr. Potolicchio dated from 1997 to 2000. In his 

July 15, 1997 report, Dr. Potolicchio opined that appellant developed seizures after a minor head 

trauma at work 12 years prior and had her first seizure the night of her injury, but did not lose 

consciousness. In a discharge summary dated July 20, 1997, he noted a history of seizure 

disorder beginning 12 years earlier with apparent generalized seizures while sleeping and 

diagnosed complex partial seizures. In a February 4, 1999 report, Dr. Potolicchio noted that 

appellant had a breakthrough seizure once she had been off anticonvulsant drugs for three 

months. It was a complex partial seizure and she returned to the prescription Tegretol. On

September 28, 2000 he noted that appellant was status post left temporal lobectomy. Appellant

continued to take Tegretol. Dr. Potolicchio noted that appellant’s work hours had been reduced 

to 20 hours a week. His reports of June 7 and September 3, 2002 noted that the onset of seizures 

occurred immediately following her head trauma in 1984 and that she experienced no seizure 

before this event. Dr. Potolicchio advised that appellant’s condition progressively worsened and 

she underwent a left craniotomy and temporal lobectomy to surgically remove the seizure focus. 

He recommended medical disability retirement.

 

3 The employing establishment acknowledged, in a letter to OWCP on March 2, 1999, that the original Form CA1 had to be retrieved from appellant’s official personal folder which had been sent to St. Louis record center after 

appellant left the employing establishment in 1986. The claim for recurrence (Form CA-2a) had been held pending 

receipt of the original Form CA-1.
3

Appellant retired on medical disability on July 12, 2002.

In a decision dated October 1, 2002, OWCP denied modification of the April 2, 2002 

decision.

On October 4, 2002 appellant requested reconsideration. She submitted a November 8, 

2002 statement which advised that, while Dr. Leahy was unable to confirm that her epilepsy was 

the result of the head trauma in 1984, Dr. Potolicchio reported that 15 percent of the damaged 

tissue on the right rear side of her brain required removal due to the December 4, 1984 injury. 

Appellant noted retiring on medical disability. 

Appellant submitted a December 9, 1985 medical report from Dr. Leahy who noted that 

she had experienced a seizure several hours after she struck her head while at work; however, the 

injury was not severe and she did not experience nausea, vomiting, or loss of consciousness. 

Dr. Leahy opined that there was a possibility that appellant developed an idiopathic seizure 

versus post-traumatic seizures.

By decision dated January 22, 2003, OWCP denied appellant’s reconsideration request as 

the evidence was insufficient to warrant a merit review of the prior decision.

Appellant appealed to the Board. In a September 30, 2004 decision, the Board affirmed 

the October 1, 2002 and January 22, 2003 decisions, finding that appellant had failed to establish 

that her seizure disorder was caused by the accepted December 4, 1984 work incident and that 

OWCP had properly denied her request for reconsideration.4

On July 16, 2005 appellant requested reconsideration. She submitted an August 16, 2005 

report from Dr. Potolicchio who summarized appellant’s history noting that on December 4, 

1984 she struck her head at work and that same night she had her first generalized convulsion. 

Dr. Potolicchio noted since that time she had a number of generalized convulsions as well as 

complex partial seizures. He noted that appellant was followed by Dr. Leahy and that he had 

referred appellant to him in July 1997 for uncontrolled seizures and possible surgery. In 

November 1997, appellant underwent a left temporal lobectomy, which resulted in better control 

of her seizures although she was left with memory issues. Dr. Potolicchio opined that the only 

source for her seizures was the original head trauma in 1984.

In a decision dated November 2, 2005, OWCP denied modification of its prior decisions.

On July 7, 2008 appellant requested reconsideration. In a February 9, 2007 report,

Dr. Potolicchio noted that appellant had her first on-the-job head trauma at work on 

December 4, 1984. On the same day, after the head trauma, she had a generalized convulsion

and has been treated by Dr. Leahy for epilepsy since 1985. When her seizures became more 

uncontrolled, appellant had a left temporal lobectomy on November 19, 1997 to control her 

seizure disorder. This was successful, but left her with short-term memory deficits and some

cognitive impairment. Dr. Potolicchio opined that appellant’s seizure disorder was causally 

 

4 Docket No. 03-1123 (issued September 30, 2004).
4

related to her initial head trauma at work and the underlying cause for her epilepsy and need for 

brain surgery.

In a decision dated August 12, 2008, OWCP denied appellant’s reconsideration request,

finding that the request was not timely filed and did not present clear evidence of error. On 

August 26, 2008 appellant again requested reconsideration.

In a decision dated November 21, 2008, OWCP denied appellant’s reconsideration 

request because she neither raised substantive legal questions nor included new and relevant 

evidence and; therefore, it was insufficient to warrant a review of the prior decision.

On January 24 and 25, 2009 appellant’s representative requested an oral hearing with 

regard to the April 2, 1999 and April 2, 2002 OWCP decisions. In a February 6, 2009 decision, 

OWCP denied appellant’s hearing request, finding that the matter had previously been reviewed 

and that she was not entitled to a hearing as a matter of right.5

On May 15, 2009 appellant requested reconsideration. On May 27, 2009 OWCP denied 

appellant’s request for reconsideration as it was untimely filed and failed to demonstrate clear 

evidence of error.

Appellant again requested reconsideration on February 3, 2010. She asserted that her 

case file had been destroyed in 2002 and that her records were not complete. Appellant 

requested a historical breakdown of her case file. She asserted that additional medical evidence 

had been submitted from 2004 to 2009, with the most recent report from Dr. Leahy. Appellant 

submitted evidence previously of record, including reports from Dr. Potolicchio dated June 7, 

2002 to February 9, 2007. She also submitted an April 22, 2010 case summary.

In letters dated January 22 to March 22, 2010, OWCP noted that appellant’s claim for 

benefits for a seizure disorder had been denied based on the evidence contained in the record. It 

noted that appellant had been afforded multiple appeals including to the Board and the denial of 

expansion of her claim to include a seizure disorder had been affirmed.

In a May 7, 2010 decision, OWCP denied appellant’s reconsideration request, finding 

that the request was untimely filed and failed to demonstrate clear evidence of error. Appellant 

appealed to the Board. In an April 5, 2011 decision, the Board affirmed OWCP’s decision dated 

May 7, 2010, finding that appellant’s request for reconsideration was untimely filed and failed to

demonstrate clear evidence of error.6

On October 11, 2011 appellant requested reconsideration. She reiterated that her case file 

had been destroyed, that her records were not complete, and that her case had been unjustly 

closed. Appellant submitted copies of e-mails sent to OWCP dated August 6 to December 19, 

2011, asserting that her case file had been destroyed in error. She reasserted that OWCP should 

 

5 Appellant appealed to the Board. In a December 16, 2009 decision, the Board affirmed the February 6, 2009 

OWCP decision. Docket No. 09-1461 (issued December 16, 2009).

6 Docket No. 10-2091 (issued April 5, 2011).
5

have expanded her claim, noting that Dr. Potolicchio supported her claim for a traumatic brain 

injury.

In an October 28, 2011 decision, OWCP denied appellant’s request for reconsideration,

finding that the evidence submitted was insufficient to warrant a merit review. Appellant 

appealed to the Board. In a January 3, 2013 decision, the Board affirmed the October 28, 2011 

decision.

7

In an undated letter received January 15, 2014, appellant requested reconsideration and 

restated contentions regarding her claim. On February 27, 2014 OWCP denied the request 

finding that it was untimely filed and failed to demonstrate clear evidence of error. Appellant 

appealed to the Board on October 29, 2014. In a January 27, 2015 order, the Board dismissed 

the appeal as untimely filed.

8

On August 11, 2015 appellant filed a notice of recurrence (CA-2a) alleging that she had a 

recurrence of disability on March 23, 2004 causally related to the December 4, 1984 accepted 

work injury. She indicated that she became epileptic eight hours after the closed-head trauma 

injury of December 4, 1984, which resulted from a lack of ergonomics in the workplace. 

Appellant believed that her current condition was related to her original injury because

Dr. Potolicchio confirmed after she underwent brain surgery on November 21, 1997 that the 

closed-head trauma was 100 percent the cause of her neurological disorder of epilepsy. She 

indicated that she was partially disabled from January 29, 2000 and became fully disabled on 

July 12, 2002.

On September 10, 2015 OWCP advised appellant of the type of evidence needed to 

establish her recurrence claim and requested that she submit such evidence.

Appellant submitted reports from Dr. Potolicchio dated June 7, 2002 to February 12, 

2007, all previously of record.

By decision dated November 10, 2015, OWCP denied appellant’s claim for a recurrence 

of disability because the evidence submitted did not establish that she had a return of disability or 

increased disability as a result of a consequential injury or condition stemming from her accepted 

work-related conditions.

On March 30, 2016 appellant requested reconsideration. She submitted a report from

Dr. Potolicchio dated February 9, 2007, previously of record. Also submitted was a 

December 16, 2015 report from Dr. Potolicchio noting examination of appellant in follow up for 

her seizure disorder and memory disturbance. Dr. Potolicchio noted following appellant for 

several years since her brain surgery for uncontrolled epilepsy. He referenced his letter of 

February 9, 2007 and indicated that appellant continued to have the same issues including 

seizures and significant memory and cognitive impairments. Dr. Potolicchio noted medications 

 

7 Docket No. 12-1083 (issued January 3, 2013).

8 Docket 15-0211 (issue January 27, 2015).
6

used in treating appellant. He indicated that he had written a letter to OWCP and opined that 

appellant’s condition was clarified in that letter.

In a June 30, 2016 decision, OWCP denied appellant’s March 30, 2016 request for 

reconsideration as the evidence submitted was insufficient to warrant a merit review.

On November 7, 2016 appellant requested reconsideration. She indicated that

Dr. Potolicchio would provide a medical response to her claim and she requested “reinstatement 

of the justice” he awarded to her on May 19, 1999. Appellant referenced a recent telephone call 

with an OWCP representative who indicated that Dr. Potolicchio must specify, using full 

detailed medical terminology, how her accepted employment incident of December 4, 1984 

caused her neurological disorder of epilepsy and the need for brain surgery. She indicated that 

she was ultimately required to retire on full medical disability in 2002.

Appellant submitted a fax form to OWCP dated November 7, 2016, requesting 

confirmation of receipt of her recurrence of injury fax. She indicated that Dr. Potolicchio would 

be provided with OWCP’s June 30, 2016 decision and would respond to the request for a 

medical explanation. Appellant indicated that Dr. Potolicchio was a highly rated neurologist. 

She submitted a copy of a fax form dated November 16, 2016 sent to Dr. Potolicchio requesting 

that he respond to OWCP as soon as possible. Appellant indicated that she was forwarding 

reports from Dr. Leahy, Dr. Schissler, and Dr. Potolicchio to OWCP for consideration. She

reiterated her contention that her May 19, 1999 case file had been improperly destroyed.

Appellant submitted a report from Dr. Leahy dated December 9, 1985, a report from

Dr. Schissler dated April 28, 1999, and reports from Dr. Potolicchio dated 2002 to December 16, 

2015, all previously of record. She also submitted a May 19, 1999 OWCP letter of acceptance, 

an OWCP letter dated June 3, 1999 to appellant’s prior counsel, and a copy of her case history 

summary as of June 2008, all previously of record.

In a November 17, 2016 decision, OWCP denied appellant’s November 7, 2016 request 

for reconsideration as the evidence submitted was insufficient to warrant a merit review.

LEGAL PRECEDENT

Under section 8128(a) of FECA,9 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence which:

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or

“(ii) Advances a relevant legal argument not previously considered by OWCP; or

 

9

5 U.S.C. § 8128(a).
7

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”

10

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.11

ANALYSIS

OWCP denied appellant’s claim for a recurrence of disability because she failed to 

submit sufficient medical evidence establishing a recurrence of disability beginning March 23, 

2004 causally related to her accepted work-related injury of December 4, 1984. Thereafter, it

denied appellant’s reconsideration requests without conducting a merit review. 

The issue presented is whether appellant met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3), requiring OWCP to reopen her case for review of the merits of the claim. In her

request for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law, nor did she advance a new and relevant legal argument.

In a November 7, 2016 request for reconsideration, she indicated that Dr. Potolicchio 

would provide a medical response to her claim and she requested “reinstatement of justice”

awarded to her on May 19, 1999. Appellant indicated that, during a telephone call with OWCP,

she was advised of the type of medical evidence needed to establish her claim. She related that 

she had to retire on full medical disability in 2002. Appellant also submitted a November 7, 

2016 fax form to OWCP, noting Dr. Potolicchio’s credentials and indicating that he would 

respond to OWCP. She further generally asserted that there was fraud involved in the 

destruction of her case file. These assertions do not show a legal error by OWCP or a new and 

relevant legal argument. The underlying issue in this case is whether appellant submitted 

sufficient evidence to establish a recurrence of disability on March 23, 2004 causally related to 

her accepted work-related injury. That is a medical issue which must be addressed by relevant 

new medical evidence.12 

Appellant did not submit any relevant and pertinent new medical evidence in support of 

her claim. She submitted a report from Dr. Leahy dated December 9, 1985, a report from

Dr. Schissler dated April 28, 1999, a May 19, 1999 OWCP letter of acceptance, a June 3, 1999 

OWCP letter to her prior counsel, reports from Dr. Potolicchio dated 2002 to December 16, 

2015, and a case history summary as of June 2008. However, this evidence is duplicative of 

evidence previously submitted and considered by OWCP in its’ earlier decisions dated 

November 10, 2015 and June 30, 2016. Evidence that repeats or duplicates evidence already in 

 

10 20 C.F.R. § 10.606(b)(3).

11 Id. at § 10.608(b).

12 See Bobbie F. Cowart, 55 ECAB 746 (2004).
8

the case record has no evidentiary value and does not constitute a basis for reopening a case.13 

Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit review. 

As noted, appellant also submitted fax forms sent to OWCP on November 16, 2016 

regarding her feelings on OWCP’s claim development as well as her request that Dr. Potolicchio

respond to OWCP. The underlying issue is whether appellant has established a recurrence of 

disability on March 23, 2004 causally related to her accepted work-related conditions. That is a 

medical issue which must be addressed by relevant and pertinent new medical evidence.14 

Therefore, OWCP properly determined that this evidence did not constitute a basis for reopening 

the case for a merit review. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). 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 constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

On appeal appellant contends that she submitted sufficient evidence to support that she 

sustained a recurrence of disability on March 23, 2004 causally related to her accepted work 

injury of December 4, 1984. As noted, the Board does not have jurisdiction over the merits of 

her claim, only has jurisdiction over whether she submitted sufficient evidence to warrant 

reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(3). The evidence 

submitted with appellant’s November 7, 2016 reconsideration request was insufficient to warrant 

a merit review of her decision. 

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). 

 

13 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984).

14 See Bobbie F. Cowart, supra note 11. 
9

ORDER

IT IS HEREBY ORDERED THAT the November 17, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 3, 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