United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

HAMPTON MEDICAL CENTER, Hampton, VA, 

Employer

__________________________________________

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Docket No. 18-1264

Issued: February 11, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 8, 2018 appellant filed a timely appeal from a May 16, 2018 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from 

OWCP’s last merit decision, dated June 14, 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 this case.

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).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 1, 2016 appellant, then a 36-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his right knee on July 18, 2016, when conducting a 

foot patrol while in the performance of duty. He noted that the sidewalk was uneven and sinking 

and that one of his legs dropped lower than the other resulting in a meniscal tear.

On July 29, 2016 Dr. Philip Lenoach, a Board-certified orthopedic surgeon, examined 

appellant when he presented complaining of right knee pain and loss of range of motion after 

hyperextending his right knee while walking on uneven pavement on July 18, 2016. He reviewed 

a magnetic resonance imaging (MRI) scan of appellant’s right knee and diagnosed a tear of the 

medial meniscus.

On August 9, 2016 the employing establishment issued appellant a properly completed 

authorization for examination and/or treatment (Form CA-16).

Appellant provided a report dated August 16, 2016 from Dr. Jon H. Swenson, a Boardcertified orthopedic surgeon, noting that on July 18, 2016 appellant was walking on an uneven

sidewalk and developed swelling and burning pain in his knee. Dr. Swenson reviewed appellant’s 

MRI scan of the right knee, which demonstrated a medial meniscal tear. He noted a possible 

arthroscopic surgery.

By development letter dated September 12, 2016, OWCP advised appellant that when his 

claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from 

work and, since the employing establishment did not controvert continuation of pay or challenge 

the case, a limited amount of medical expenses was administratively approved. It noted that it 

reopened his claim because he requested authorization for surgery. OWCP informed appellant of 

the type of factual and medical evidence necessary to establish his claim and afforded him 30 days 

to submit the necessary evidence.

Appellant provided an additional note from Dr. Swenson dated September 1, 2016. 

Dr. Swenson reported that appellant’s injury occurred on July 18, 2016 and that the mechanism of 

injury was walking on an uneven sidewalk and the subsequent development of swelling and 

burning pain in his knee. He diagnosed a medial meniscal tear in appellant’s right knee and 

recommended surgery.

By decision dated October 13, 2016, OWCP denied appellant’s traumatic injury claim 

finding that the evidence of record was insufficient to establish that an employment incident 

occurred as alleged, as he had not completed the factual questionnaire.

On November 11, 2016 appellant requested reconsideration. In support of this request, he

provided a completed questionnaire dated October 14, 2016. Appellant noted that he was 

conducting a foot patrol on employing establishment property. He reported that he traversed a 

staircase and the connecting sidewalk, which were collapsing or sinking unevenly into the ground. 

Appellant felt a slight twist then experienced burning and pain in his right knee. He further 

indicated that he reported his injury to his superior, his right knee became swollen and he could 

not bear weight on it, but remained on duty for an additional 10 hours. Appellant noted that he 
3

was unable to walk for three days and treated his knee with rest, ice, and elevation. When he felt 

able to drive he sought medical attention.

By decision dated February 1, 2017, OWCP modified its October 25, 2016 decision to 

reflect that appellant had established the factual basis for his traumatic injury claim, but that he 

had failed to submit medical evidence establishing causal relationship between his diagnosed 

condition and his accepted July 18, 2016 employment incident.

On March 24, 2017 appellant requested reconsideration. He contended that he had 

provided the required medical opinion evidence. Dr. Swenson completed a report on February 28, 

2017 and described appellant’s history of walking on uneven ground and injuring his right knee. 

He concluded, “It is my medical opinion, that [appellant’s] current right knee complaint and MRI 

[scan] confirmation of a medial meniscal tear is directly related to his injury of July 18, 2016.”

By decision dated June 14, 2017, OWCP denied modification of the February 1, 2017 

decision and found that Dr. Swenson had failed to provide medical rationale explaining how 

walking on uneven ground caused or contributed to appellant’s right knee medial meniscal tear.

On May 10, 2018 appellant again requested reconsideration. He resubmitted a copy of

Dr. Swenson’s February 28, 2017 report.

By decision dated May 16, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of his claim. It found that he had not submitted relevant and pertinent new evidence not 

previously considered by OWCP in support of his request for reconsideration.

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.2 

Section 8128(a) of FECA3 vests OWCP with discretionary authority to determine whether to 

review an award for or against compensation. OWCP may review an award for or against payment 

of compensation at any time on his own motion or on application.4 

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.5 If 

 

2 20 C.F.R. § 10.607(a).

3 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.

4

Id.; L.S., Docket No. 18-0811 (issued November 13, 2018).

5 20 C.F.R. § 10.606(b)(3); see also L.S., id.
4

the request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP 

will deny the request for reconsideration without reopening the case for review on the merits.6

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.7 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.8 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set forth at section 10.606(b)(3) to appellant’s application for 

reconsideration and any evidence submitted in support thereof.9

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. While the reopening of a case may be predicated solely on 

a legal premise not previously considered, such reopening is not required where the legal 

contention does not have a reasonable color of validity.10

ANALYSIS

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). 

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

interpreted a specific point of law, or advance a new and relevant legal argument not previously 

considered by OWCP. Consequently, he was not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 

The Board notes that the underlying issue in this case is whether appellant sustained a right 

knee injury causally related to the accepted July 18, 2016 employment incident. That is a medical 

issue which must be addressed by relevant medical evidence not previously considered.11 

Appellant resubmitted Dr. Swenson’s February 28, 2017 report. The Board notes that this report 

was previously addressed and evaluated by OWCP in its June 14, 2017 merit decision. 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.12

 

6

Id. at § 10.608(b).

7

J.F., Docket No. 17-1508 (issued March 28, 2018).

8 See supra note 3. See also L.S., supra note 4; Mark H. Dever, 53 ECAB 710 (2002).

9 L.S., supra note 4; Annette Louise, 54 ECAB 783 (2003).

10 L.S., supra note 4; M.E., 58 ECAB 694 (2007).

11 K.V., Docket No. 18-0723 (issued November 9, 2018).

12 Id.
5

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13

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).

ORDER

IT IS HEREBY ORDERED THAT the May 16, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 The Board notes that the employing establishment issued a Form CA-16 authorizing medical treatment. A 

properly executed CA-16 form authorization may constitute a contract for payment of medical expenses to a medical 

facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the 

employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. 

Although OWCP denied appellant’s claim for injury, it did not address whether he is entitled to reimbursement of 

medical expenses pursuant to the Form CA-16. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003); 

P.R., Docket No. 18-0737 (issued November 2, 2018); F.M., Docket No. 17-1547 (issued November 2, 2018); S.G., 

Docket No. 18-0209 (issued October 4, 2018).