United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Mendota, CA, Employer

__________________________________________

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Docket No. 17-1764

Issued: December 28, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

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 August 14, 2017 appellant filed a timely appeal from a March 2, 2017 nonmerit 

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

elapsed from the last merit decision dated September 27, 2016, 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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On September 2, 2015 appellant, then a 52-year-old correctional counselor, filed a 

traumatic injury claim (Form CA-1), alleging that, while leaving Chow Hall and walking to a 

 

1

5 U.S.C. § 8101 et seq.
2

scheduled evening training session on September 1, 2015 she felt dizzy, nauseated, and 

experienced chest pain. She did not stop work.

Appellant was treated in the emergency room of Sierra Vista Regional Medical Center by

Dr. Joseph Robinson, Board-certified in emergency medicine, for a sudden onset of epigastric 

pain while at Camp San Luis for training. Dr. Robinson diagnosed radiating pain in the 

epigastric area. He discharged appellant in good condition.

In a September 16, 2015 letter, OWCP advised appellant to submit additional

information including a comprehensive medical report from her treating physician which

included a reasoned explanation as to how the specific work factors or incidents identified

by appellant had contributed to her claimed injury.

In a September 24, 2015 statement, appellant indicated that on September 1, 2015 she 

attended employing establishment Crisis Management Training as part of the crisis support team. 

Her class was instructed to assemble and build a canvas tent similar to a medium military tent 

from its original box as a team building exercise. Appellant indicated that while assembling the 

tent outside she was holding the outer edges with both hands and lifted and pulled the tent up to 

her chest and then over her head and held it overhead for over 15 minutes. She subsequently 

attended additional classes and headed to Chow Hall where she became dizzy, nausea, and felt 

pressure in the middle of her chest. Appellant was treated in the medical clinic and then 

transported by ambulance to an emergency room. She believed that her chest injury was caused 

by holding, tugging, and pulling the weight of the tent above her head.

Appellant submitted employing establishment medical records dated September 1, 2015 

prepared by a health care provider, with an illegible signature, who noted that appellant 

presented with chest pressure, dizziness, shortness of breath, and nausea. She reported sitting at 

a dinner table when her symptoms began. The health care provider diagnosed chest pain and 

appellant was given two nitroglycerin tablets and taken to the emergency room by ambulance.

Also submitted were September 1, 2015 county emergency medical services and 

ambulance records which noted that appellant reported eating when she had a sudden onset of 

dizziness, nausea, and upper epigastric pain. Appellant’s medical history was significant for 

lupus. She was diagnosed with abdominal pain, nausea, and chest pain.

Appellant submitted additional September 1, 2015 emergency room records from

Dr. Robinson, who treated her for pain in the anterior chest, lower parasternal region, with an

onset during eating. Laboratory test results were normal. Dr. Robinson diagnosed chest pain 

with somatic features with no indication of myocardial ischemia or other serious etiology. 

Appellant was discharged. In an October 14, 2015 addendum, Dr. Robinson noted that appellant 

was treated on September 1, 2015 for chest pain and that his findings were consistent with chest 

wall pain. He indicated that at the time of his initial evaluation he did not have information 

available regarding physical activity which may have led to appellant’s presentation. Appellant 

furnished information about her activity before the onset of pain. She reported being engaged in 

an extended period of physical activity supporting a tent which was being assembled by 

members of her team and her symptoms began later after this activity. Dr. Robinson advised that 

documentation indicated that appellant had chest wall tenderness with reproduction of her 
3

symptoms. He noted that diagnostic studies revealed no evidence of a visceral source for pain. 

Dr. Robinson opined that the history appeared consistent with a likely cause of her chest wall 

pain for which he evaluated and treated appellant. He opined that it “was likely” that her activity 

involving the tent assembly was the cause of her chest wall pain.

In an October 20, 2015 decision, OWCP denied the claim finding that appellant failed to 

submit medical evidence establishing that a medical condition was diagnosed in connection with 

the accepted work incident. It concluded, therefore, that she had not met the requirements to 

establish an injury as defined by FECA.

On November 17, 2015 appellant requested an oral hearing before an OWCP hearing 

representative which was held on July 13, 2016.

In an undated statement, appellant indicated that she believed she has submitted all 

supporting documentation for her claim. Additional evidence submitted included a Crisis 

Management Training authorization form dated July 23, 2015, which noted authorization to 

attend training from September 1 to 3, 2015. An employee training roster noted that appellant 

was in attendance.

Appellant submitted an authorization for examination (Form CA-16) from Dr. Robinson 

dated October 14, 2015 who noted that she reported developing nausea, dizziness, and chest pain 

after a day of training. Dr. Robinson noted findings of anterior chest tenderness and diagnosed 

chest wall pain. He checked a box marked “yes” that appellant’s condition was caused or 

aggravated by an employment activity.

In a September 27, 2016 decision, an OWCP hearing representative affirmed the decision 

dated October 20, 2015.

Appellant requested reconsideration in an undated statement received on 

December 6, 2016. She noted submitting evidence regarding her diagnosed systemic lupus 

erythematosus in connection with her diagnosed chest wall pain which had occurred before the 

September 1, 2015 incident. Appellant noted that she was treated on March 14, 2009 for chest 

pain, trouble breathing, dizziness, and feeling faint due to excess swimming. She was treated for 

symptoms of a heart attack.

2

 Appellant noted symptoms of a heart attack, which were similar to 

those she experienced on September 1, 2015. She requested that her case be reviewed by a 

rheumatologist who was familiar with lupus and who could understand how the tent training 

exercise would have caused her chest wall injury. Appellant related being diagnosed with lupus 

in 1989 and advised that it was a chronic, autoimmune condition that can cause pulmonary 

inflammation which results in chest pain. She advised that the diagnosed chest wall pain or 

musculoskeletal chest pain was related to the muscles and bones of the chest wall. Appellant

indicated that the only strenuous activity she participated in was the military tent training 

exercise. She reported that she had prior emergency room visits with chest wall pain due to 

strenuous movement in her upper body in conjunction with her diagnosed lupus. Appellant 

 

2 Appellant referenced medical records from the March 14, 2009 hospital visit. However, the records were not in 

the file before the Board on appeal.
4

submitted employing establishment medical records from September 1, 2015, previously of 

record.

Appellant submitted a note from Dr. Himmat S. Gill, a Board-certified rheumatologist, 

dated August 1, 2016, who noted that she was under his care for systemic lupus which was 

stabilized with medication.

In a March 2, 2017 decision, OWCP denied appellant’s request for reconsideration as the 

evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT

Under section 8128(a) of FECA,3 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

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

by OWCP.”

4

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.5

ANALYSIS

OWCP denied appellant’s claim because she failed to submit sufficient evidence 

establishing that an injury causally related to the accepted work incident. Thereafter, it denied 

her reconsideration request, without conducting a merit review. 

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 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. She submitted an undated statement in which she sought to 

explain the relationship between her lupus, chest wall pain, and the accepted work incident on 

September 1, 2015. Appellant requested that her case be reviewed by a rheumatologist who was 

 

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b).
5

familiar with lupus. However, this statement does not show a legal error by OWCP nor does it 

provide a new and relevant legal argument. The underlying issue in this case is whether 

appellant submitted sufficient medical evidence establishing that an injury causally related to the 

accepted September 1, 2015 employment incident. That is a medical issue which must be 

addressed by relevant new medical evidence.6 However, appellant did not submit any pertinent 

new and relevant medical evidence in support of her claim.

Appellant submitted employing establishment medical records from September 1, 2015.

However, this evidence is duplicative of evidence previously submitted and considered by 

OWCP in its earlier decisions dated October 20, 2015 and September 27, 2016. Evidence that 

repeats or duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a case.7 Therefore, these reports are insufficient to require 

OWCP to reopen the claim for a merit review. 

Appellant also submitted an August 1, 2016 note from Dr. Gill who advised that she was 

under his care for systemic lupus which was stable. While this report is new to the record, it is 

not relevant to the issue for which OWCP denied appellant’s claim, the failure to establish that 

an injury was causally related to the accepted work incident.

8

 Dr. Gill’s report does not address 

causal relationship between appellant’s condition and the accepted September 1, 2015 

employment incident. The submission of evidence that does not address the particular issue 

involved does not constitute a basis for reopening a case.9 Therefore, this document does not 

constitute a basis for reopening appellant’s claim.10 

On appeal appellant asserts that her claim was improperly denied because the emergency 

room physician failed to provide the correct diagnosis and noted only “chest wall pain” which 

was not a diagnosis but a symptom. She asserted that the emergency room physician did not 

know the physical exercise she performed September 1, 2015 that she believed caused her 

condition. As explained, the Board does not have jurisdiction over the merits of the claim. 

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 new evidence not previously considered. Pursuant to 

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

 

6

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

7

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

ECAB 1090, 1093-94 (1984).

8

See R.B., Docket No. 16-0345 (issued April 21, 2016).

9 M.M., Docket No. 10-224 (issued October 6, 2010). 

10 See W.D., Docket No. 09-658 (issued October 22, 2009) (causal relationship is a medical issue).
6

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 March 2, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 28, 2017

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