United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.D., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Kansas City, MO, Employer

__________________________________________

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Docket No. 17-1211

Issued: April 10, 2018

Appearances: Case Submitted on the Record

Melford V. McCormick, 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 May 11, 2017 appellant, through counsel, filed a timely appeal from an April 4, 2017 

nonmerit decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 

days elapsed from OWCP’s last merit decision, dated January 11, 2016, 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 claim.

 

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

FACTUAL HISTORY

On April 7, 2014 appellant, then a 54-year-old correspondence examination technician, 

filed a traumatic injury claim (Form CA-1) alleging that on April 2, 2014, she sustained right knee 

and back injuries due to tripping over a trash can and falling on her right knee at work.

3

 She

stopped work on April 3, 2014 and returned to work on April 9, 2014. OWCP accepted appellant’s

claim for right knee contusion and sprains of her neck and back (lumbar region). 

On April 2, 2014 appellant received medical treatment at the Truman Medical Center in 

Kansas City, Missouri, at which time she reported falling on her right knee at work on that date. 

The findings of right knee x-rays obtained on April 2, 2014 contained an impression of no acute 

osseous abnormality, mild-to-moderate tri-compartmental degenerative osteoarthrosis, and 

minimal knee joint effusion.

Appellant received treatment for her medical conditions from Dr. Jonathan D. Schultz, a 

Board-certified family practitioner. In an April 16, 2014 report, Dr. Schultz discussed her April 2, 

2014 fall and reported the findings of his physical examination. He diagnosed sprain of the 

posterior cruciate ligament of the right knee (grade 1).4

Dr. Schultz arranged for appellant to undergo a magnetic resonance imaging (MRI) scan 

of her right knee on April 22, 2014 which revealed distal quadriceps and patellar tendinosis, medial 

collateral ligament sprain, tri-compartmental degenerative changes (most advanced in the 

patellofemoral joint with significant joint space narrowing/chondromalacia), small volume suprapatellar joint effusion, and nonspecific soft tissue edema. 

In an April 23, and May 27, 2014 reports, Dr. Schultz diagnosed right knee pain from knee 

contusion and aggravation of underlying right knee osteoarthritis. He recommended that appellant 

continue to use a topical analgesic compound. 

The record contains personnel records showing that appellant voluntarily resigned from the 

employing establishment effective June 13, 2014, for “personal reasons” identified as the reason 

for the resignation. She last worked for the employing establishment on June 6, 2014. 

In a July 3, 2014 report, Dr. Schultz noted that appellant reported that her right knee pain 

was “not much better” despite her participation in physical therapy. He indicated that his physical 

examination showed tenderness to palpation of the medial joint line of the right knee and he 

diagnosed aggravation of preexisting osteoarthritis with possible lateral meniscus tear (despite 

 

3 Appellant did not sign the (Form CA-1) and it appears that an unidentified individual completed the form on her 

behalf.

4 An authorization for examination and/or treatment form (Form CA-17) was issued to appellant on April 10, 2014. 
3

most of the pain being medial in nature). Dr. Schultz recommended that appellant undergo 

arthroscopic surgery of her right knee. 

On July 21, 2014 appellant visited Dr. Akin Cil, a Board-certified orthopedic surgeon, and 

informed him that she had a chief complaint of right knee pain. She advised him that her right 

knee pain began after her April 2, 2014 fall at work and reported that the pain was diffuse and 

located primarily in the anterior of her right knee. Dr. Cil detailed his physical examination 

findings, including tenderness in the anterior right knee with significant tenderness laterally and 

less significant tenderness medially along the joint lines. He diagnosed right knee tricompartmental osteoarthritis and right knee lateral meniscus tear. Dr. Cil advised that he was 

planning to perform arthroscopic debridement of the right lateral meniscus. 

On August 8, 2014 Dr. Cil performed OWCP-approved right knee surgery, including 

arthroscopy with debridement, removal of a loose body, and abrasion chondroplasty. 

In a brief July 6, 2015 report, Dr. Cil had indicated that appellant had right knee 

osteoarthritis and noted that he gave her a Kenalog/Lidocaine injection in her right knee. In an 

October 12, 2015 report, he diagnosed tri-compartmental osteoarthritis of the right knee and 

discussed her treatment options. 

In November 2015, appellant filed a claim for compensation (Form CA-7) claiming that 

she sustained disability for the period June 14 to July 6, 2014 due to her accepted employment 

conditions. 

In a November 24, 2015 development letter, OWCP requested that appellant submit 

additional evidence in support of her claim for disability for the period June 14 to July 6, 2014.

Appellant submitted an April 16, 2014 duty status report (Form CA-17) in which

Dr. Jayden Price, an attending Board-certified osteopath, recommended work restrictions. In an 

April 23, 2014 attending physician’s report (Form CA-20), Dr. Price noted treatment for her back 

condition on several dates in April 2014. 

In a January 11, 2016 decision, OWCP denied appellant’s claim for employment-related

disability for the period June 14 to July 6, 2014. It found that she failed to submit medical evidence 

to establish disability for the period June 14 to July 6, 2014 due to her accepted employment 

conditions. 

On February 21, 2016 appellant requested a hearing with a representative of OWCP’s 

Branch of Hearings and Review regarding OWCP’s January 11, 2016 decision.

In a May 4, 2016 decision, OWCP determined that appellant was not entitled to a hearing 

as a matter or right because her hearing request was untimely filed given that it had not been filed 

within 30 days of its January 11, 2016 decision. It further indicated that it was denying her hearing 

request because the case could equally well be addressed by requesting reconsideration and 

submitting evidence not previously considered regarding the claim for employment-related

disability for the period June 14 to July 6, 2014. 
4

On January 9, 2017 appellant requested reconsideration of OWCP’s January 11, 2016 

decision. 

Appellant submitted a February 1, 2016 report in which Dr. Cil described the physical 

examination findings from this date, noting that she had tenderness along the lateral aspect of the 

patella and some medial and lateral joint line tenderness. Dr. Cil diagnosed right knee 

osteoarthritis. 

In a brief April 18, 2016 report, Dr. Cil had indicated that appellant had right knee 

osteoarthritis and noted that he gave her a Kenalog/Lidocaine injection in her right knee. The 

findings of April 18, 2016 x-ray testing of appellant’s right knee contained an impression of no 

acute osseous abnormalities, tri-compartmental degenerative joint disease of both knees, mild 

medial and lateral tibio-femoral joint space narrowing bilaterally, mild patellofemoral 

degenerative joint disease in both knees (right greater than left), and small right knee joint effusion. 

In a September 28, 2016 report, Dr. Cil provided a discussion of the treatment of 

appellant’s right knee condition since April 17, 2014. He discussed various diagnostic tests which 

were performed on her right knee, noting that the testing showed tri-compartmental osteoarthritis. 

Dr. Cil indicated that he first saw appellant on July 21, 2014 and indicated that he performed right 

knee surgery on August 8, 2014. He discussed his postsurgery treatment, noting that he last saw 

her on April 18, 2016. 

Subsequently, in an October 3, 2016 report, Dr. Cil reported the findings of the physical 

examination he performed on that date. He indicated that, given the failure of conservative 

treatment, appellant should consider joint replacement surgery for her right knee. 

Appellant submitted notes, dated between 2008 and 2014, produced by registered nurses 

at the employing establishment’s health unit. 

Appellant also resubmitted documents which had previously been considered by OWCP 

including April 16 and 23, May 27, and July 3, 2014 reports of Dr. Schultz, July 6, 2014 and 

October 12, 2015 reports of Dr. Cil, an April 22, 2014 MRI scan report, and documents from the

August 8, 2014 right knee surgery.

In an April 4, 2017 decision, OWCP denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence she submitted in 

support of her timely reconsideration request was duplicative or irrelevant/immaterial to the 

underlying issue of her case. 

LEGAL PRECEDENT

Section 8128(a) of FECA 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 based on its own motion or on application.5 

 

5 5 U.S.C. § 8128(a).
5

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence that: (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.6 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.7 If the 

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

the request for reconsideration without reopening the case for review on the merits.8

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP decision for which review is sought.9 For OWCP decisions issued on or after August 29, 

2011, the date of the application for reconsideration is the “received date” as recorded in the 

Integrated Federal Employees’ Compensation System (iFECS).10 If the last day of the one-year 

time period is a Saturday, Sunday, or a legal holiday, OWCP will still consider a request to be 

timely filed if it is received on the next business day.11

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

evidence or argument already of record12 and the submission of evidence or argument which does 

not address the particular issue involved does not constitute a basis for reopening a case.13

ANALYSIS

Appellant timely requested reconsideration of OWCP’s January 11, 2016 merit decision 

on January 9, 2017.

14

 

6 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

Id. at § 10.607(a).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See 

also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987 there is no 

regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987 

through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and 

must be mailed within one year of OWCP decision for which review is sought.

11 Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

12 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

13 Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

14 Appellant’s request was timely filed because it was received within one year of OWCP’s January 11, 2016 

decision. See supra notes 9 through 11.
6

The issue presented on appeal is whether appellant’s January 9, 2017 request for 

reconsideration 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 the claim. 

The Board finds that 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.

The underlying issue in this case is whether appellant submitted medical evidence 

sufficient to establish employment-related disability for the period June 14 to July 6, 2014.

15

 This 

is a medical issue which must be addressed by relevant medical evidence.16 A claimant may be 

entitled to a merit review by submitting relevant and pertinent new evidence, however, the Board 

finds that he or she did not submit such evidence in this case.

In support of her reconsideration request, appellant submitted several reports of Dr. Cil 

which were dated between February and October 2016. However, while these reports had not 

previously been submitted, they are not relevant to the main issue of the present case because none 

of the reports discuss her disability for the period June 14 to July 6, 2014. For example, in his

February 1, April 18, and October 3, 2016 reports, Dr. Cil only described his physical examination 

findings from those dates. In a September 28, 2016 report, he provided a discussion of the 

treatment of appellant’s right knee condition since April 17, 2014, including his treatment of her 

between July 21, 2014 and April 18, 2016. However, this report does not address her disability 

for the period June 14 to July 6, 2014. The Board therefore finds that the submission of these 

reports would not require OWCP to reopen appellant’s case for further review of the merits of the 

claim because, as noted above, the submission of evidence or argument which does not address the 

particular issue involved does not constitute a basis for reopening a case.17 

Appellant also submitted notes, dated between 2008 and 2014, produced by registered 

nurses at the employing establishment’s health unit. However, this evidence would not be relevant 

to the central issue of this case, which is medical in nature, because these notes were produced by 

registered nurses who are not considered physicians as defined under FECA and whose reports do 

not constitute probative medical evidence.18

In connection with her reconsideration request, appellant also submitted documents which 

had previously been considered by OWCP including April 16, 23, May 27, and July 3, 2014 

reports of Dr. Schultz, July 6, 2014 and October 12, 2015 reports of Dr. Cil, an April 22, 2014 

MRI scan report, and documents from her August 8, 2014 right knee surgery. The Board finds 

that the submission of these reports would not require OWCP to reopen her case for further review 

of the merits of the claim because the Board has held that the submission of evidence or argument 

 

15 In a January 11, 2016 decision, OWCP found that appellant failed to submit medical evidence sufficient to 

establish disability for the period June 14 to July 6, 2014 due to her accepted employment conditions.

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

17 See supra note 13.

18 R.S., Docket No. 16-1303 (issued December 2, 2016).
7

which repeats or duplicates evidence or argument already in the case record does not constitute a 

basis for reopening a case.19 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied 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 April 4, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 10, 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

 

19 See supra note 12. The Board notes that an authorization for examination and/or treatment form (Form CA-16) 

was issued to appellant on April 10, 2014. Where an employing establishment properly executes a Form CA-16 

authorizing medical treatment related to a claim for a work injury, 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. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form 

CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).