United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.M., Appellant

and

DEPARTMENT OF AGRICULTURE, FARM 

SERVICE AGENCY, Gainesville, FL, Employer

__________________________________________

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Docket No. 17-1436

Issued: June 20, 2018

Appearances: Case Submitted on the Record

Fonda Miller, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2017 appellant, through his representative, filed a timely appeal from a 

January 20, 2017 nonmerit decision of the Office of Workers’ Compensation Program (OWCP).2 

As more than 180 days elapsed from OWCP’s last merit decision, dated July 1, 2016, to the filing 

 

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 Together with his appeal request, appellant requested oral argument pursuant to 20 C.F.R. § 501.5(b). By order 

dated November 2, 2017, the Board exercised its discretion and denied appellant’s request finding that the appeal 

could be adequately addressed in a decision based on a review of the case as submitted on the record. Order Denying 

Request for Oral Argument, Docket No. 17-1436 (issued November 2, 2017). 
2

of this appeal, pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case.4

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 June 5, 2013 appellant, then a 51-year-old County Executive Director, filed a traumatic 

injury claim (Form CA-1) alleging that he was injured on May 10, 2013 when he fell backwards 

and hit his head in the hotel bathroom while in travel status. He stopped work on May 13, 2013 

and did not return. OWCP accepted concussion with loss of consciousness of 30 minutes or less 

caused by the May 10, 2013 employment injury. It paid compensation benefits on the 

supplemental rolls, commencing June 25, 2013, and on the periodic rolls as of July 28, 2013.

To determine the status of appellant’s accepted conditions, on April 24, 2014 OWCP 

referred appellant to Dr. Melvin Grossman, a Board-certified neurologist, for a second opinion 

evaluation. In a report dated May 20, 2014, Dr. Grossman opined that appellant’s cognitive 

condition and inability to work was due to nonwork-related cognitive difficulties.

5 As treating 

physicians, Dr. Tarannum Khan, a neurologist, and Dr. Jacqueline C. Valdes, a clinical 

neuropsychologist, believed that appellant’s cognitive conditions and inability to work were 

related to the work-related head injury. OWCP referred appellant to Dr. Allan Teman, a Boardcertified neurologist, for an impartial medical evaluation and to resolve the conflict in medical 

evidence. In a report dated August 27, 2014, Dr. Teman related that appellant had no injury-related 

residuals.6

On December 17, 2014 OWCP issued a proposed termination of appellant’s medical and 

wage-loss compensation benefits, finding that the special weight of the medical opinion evidence 

rested with Dr. Teman, the impartial medical specialist.

 

3 5 U.S.C. § 8101 et seq.

4 The record provided to the Board includes evidence received after OWCP issued its January 20, 2017 decision. 

However, the Board’s review is limited to evidence that was part of the record at the time OWCP issued its final 

decision. Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 

20 C.F.R. § 501.2(c)(1).

5

In a May 20, 2014 report, Dr. Grossman noted his review of the record and conducted both a physical and minimental status examination. He indicated that there was a question of aftermath of a concussion or post-traumatic 

syndrome and that it was believed that appellant had Alzheimer’s, which was not associated with head trauma. 

Dr. Grossman stated that while appellant had a cognitive decline, there was no evidence of a traumatic encephalopathy 

and his complaints were not consistent with a mild closed-head injury. He opined that appellant was unable to work 

because of his nonwork-related cognitive difficulties. 

6

In his August 27, 2014 report, Dr. Teman noted his review of the record and appellant’s headache complaints. He 

opined that appellant could not return to work primarily due to psychiatric reasons. Dr. Teman explained that a minor 

concussion one and a half years ago was not a factor in why appellant could not return to work. He further explained 

that symptoms of a simple concussion are not expected to continue one and a half years later. 
3

By decision dated February 23, 2015, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective the same day. It found that the special weight of the 

medical evidence rested with Dr. Teman, OWCP’s impartial medical specialist, who determined 

that the May 10, 2013 concussion had resolved without residuals. 

Appellant requested an oral hearing before an OWCP hearing representative and submitted 

additional medical reports. A telephonic hearing was held on October 20, 2015. By decision dated 

November 30, 2015, an OWCP hearing representative affirmed the termination of appellant’s 

wage-loss compensation and medical benefits. She again found that Dr. Teman’s report was 

entitled to the special weight of the medical evidence. 

Appellant requested reconsideration on March 23, 2016 and submitted additional medical 

evidence. By decision dated July 1, 2016, OWCP denied modification of its November 30, 2015 

decision. It found that the evidence submitted lacked a rationalized medical opinion supported by 

objective clinical findings which established that appellant continued to suffer from disabling 

residuals of the accepted work-related concussion. 

On October 16, 2016 appellant again requested reconsideration. In support of his request,

he submitted duplicative submissions of evidence previously considered prior to OWCP’s 

February 23, 2015 termination decision and/or evidence considered in OWCP’s November 30, 

2015 and July 1, 2016 reconsideration decisions. This included: May 11, 2013 emergency room 

reports from the Cleveland Clinic and May 13, 2013 reports from Homestead Hospital; July 17, 

2013 brain computerized tomography (CT) scan; work capacity evaluation forms (Form OWCP5c) dated August 29, 2013 and May 20, 2014; December 10, 2013 referral forms for physical 

therapy and consult to psychiatry with handwritten notations; Dr. Khan’s April 10, 2014 medical 

report; July 21, 2014 chart notes from the Cleveland Clinic; July 21, 2014 encounter notes; reports 

from Dr. Po-Heng Tsai, a neurologist, dated August 14, 2014 and March 14, 2016; Dr. Teman’s 

August 27, 2014 report; August 27, 2014 magnetic resonance imaging (MRI) scan report; and 

March 10, 2015 and March 8, 2016 reports and medical statements from Dr. Aldo A. Buonanno, 

a Board-certified psychiatrist. 

New evidence included: a July 25, 2012 paperwork for an accommodation request; an 

August 19, 2013 letter from the Office of Personnel Management (OPM), finding appellant 

disabled from his position due to malabsorption and immune deficiency with symptoms; copies of 

Merck Manual articles pertaining to intestinal lymphangiectasia (idiopathic hypoproteinemia), 

immunodeficiency disorders, traumatic brain injury, and depressive disorders; copies of decisions 

issued by the Board dated April 4, 2002, November 9, 2007, and January 10, 2012; appellant’s 

narrative statements dated December 14, 2014 and October 16, 2016; and the copy of the National 

Institutes of Health (NIH) Public Access reviews of an MRI scan and diffusion tensor imaging 

findings in mild traumatic brain injury. 

By decision dated January 20, 2017, OWCP denied appellant’s reconsideration request. It

found that he had not established that OWCP erroneously applied or interpreted a specific point of 

law, and had not advanced a relevant legal argument not previously considered. As to the evidence 

and documents submitted, OWCP found that the evidence was duplicative of earlier submissions 

which had been previously reviewed in its decisions, or not relevant and pertinent new evidence. 
4

LEGAL PRECEDENT

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

matter of right.7 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.8 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.9 

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.10 When a timely application for reconsideration does not meet at least one 

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

reopening the case for a review on the merits.11

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).

On October 16, 2016 appellant requested reconsideration of OWCP’s July 1, 2016 decision 

which denied modification of the termination of his wage-loss compensation and medical benefits. 

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

interpreted a specific point of law, nor did he advance a relevant legal argument not previously 

considered by OWCP.12 As such, he was not entitled to a review of the merits of his claim based 

on the first and second above-noted requirements under section 10.606(b)(3).13

The underlying issue in this case is whether OWCP properly terminated appellant’s wageloss compensation and medical benefits, effective February 23, 2015. This is a medical issue

which can only be resolved through the submission of medical evidence.14

 

7 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 own motion or on application.” 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.607.

9

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.

10 20 C.F.R. § 10.606(b)(3).

11 Id. at § 10.608(a), (b).

12 See J.F., Docket No. 16-1233 (issued November 23, 2016).

13 20 C.F.R. § 10.606(b)(3).

14 See B.S., Docket No. 17-0697 (issued April 25, 2018). 
5

A claimant may also be entitled to a merit review by submitting relevant and pertinent new 

evidence,15 but, in this case, he did not submit any relevant and pertinent new evidence with his 

October 16, 2016 reconsideration request. Appellant submitted a July 25, 2012 accommodation 

request; an August 19, 2013 disability letter from OPM, copies of articles from the Merck Manual 

articles pertaining to various diagnoses, copies of decisions from the Board, signed narrative 

statements dated December 17, 2014 and October 16, 2016, and a NIH review of MRI scan and 

diffusion tensor imaging findings in mild traumatic brain injury and narrative statements. 

Appellant’s narrative statements, accommodation request paperwork, and OPM’s findings 

on disability concerning a nonaccepted OWCP condition16 do not discuss the critical question of 

whether appellant had ongoing residuals of his accepted condition, which is a medical issue. As 

these documents are irrelevant to the termination issue, they do not require reopening of the case.17

Copies of Merck Manual articles and the NIH Public Access reviews are insufficient to 

warrant a merit review of a case as the evidence is general in nature does not pertain specifically 

to appellant. While a physician may reference findings from such articles to support their medical 

opinions, the submission of such articles alone does not support that OWCP erred in its 

determination regarding entitlement to ongoing benefits.18 Similarly, the submission of Board

decisions must be pertinent to the issue at hand. While the Board decisions provided may discuss 

similar cases, such decisions do not include evidence that OWCP erred or did not consider all the 

evidence of record in this particular case.19

Additionally, the numerous duplicative emergency room reports, physician reports, 

diagnostic studies, and form reports which appellant had resubmitted was already of record and 

considered by OWCP in prior decisions and, thus, did not warrant further merit review as the 

evidence is duplicative in nature.20

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

C.F.R. § 10.606(b)(3) and thus OWCP properly denied merit review. Appellant did not establish 

that OWCP erroneously applied or interpreted a specific point of law, advance a relevant legal 

argument not previously considered by OWCP, or submit relevant and pertinent new evidence not 

previously considered.21

On appeal appellant’s representative asserts that the claims examiner had violated multiple 

standards under the FECA Procedure Manual.” These arguments included errors in OWCP’s 

 

15 Supra note 10. 

16 The Board has held that that findings of other government agencies are not dispositive with regard to questions 

arising under FECA. A.B., Docket No. 10-2108 (issued July 13, 2011); Ernest J. Malagrida, 51 ECAB 287, 

291 (2000).

17 Joseph A. Brown, Jr., 55 ECAB 542 (2004).

18 See Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980).

19 Id.

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

21 See B.R., Docket No. 17-1213 (issued January 18, 2018).
6

development of the case, failure to rectify an inaccurate statement of accepted facts, and failure to 

follow its procedural manual prior to the termination of compensation and wage-loss benefits. 

Appellant also contended that he has continuing residuals of his work-related injury. As explained

above, the Board lacks jurisdiction over the merits of the claim. The Board’s jurisdiction is limited 

to review of appellant’s request for reconsideration and OWCP’s January 20, 2017 decision 

denying merit review. 

The Board accordingly finds that, 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 his claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the January 20, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 20, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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