United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.D., Appellant

and

DEPARTMENT OF AGRICULTURE, 

AGRICULTURAL MARKETING SERVICE, 

Bronx, NY, Employer

__________________________________________

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Docket No. 19-0890

Issued: November 8, 2019

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On March 21, 2019 appellant, through counsel, filed a timely appeal from a February 25, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant 

 

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 The Board notes that following the February 25, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board will only consider the nonmerit issue.4

ISSUES

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

This case has previously been before the Board.5 The facts and circumstances of the case 

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

as follows.

On May 30, 2013 appellant, then a 38-year-old agricultural commodity grader, injured his 

right shoulder when he slipped while carrying a carton of grapes on his right shoulder. OWCP 

adjudicated this claim under File No. xxxxxx474 and accepted right shoulder sprain. 

Appellant filed a claim for recurrence (Form CA-2a) on January 2, 2014. By decision 

dated August 11, 2015, OWCP determined that the claimed recurrence was actually a new 

occupational disease claim and assigned the new claim File No. xxxxxx795.

OWCP subsequently received an October 26, 2015 report from Dr. Arnold Wilson, a 

Board-certified orthopedic surgeon, who had performed authorized right shoulder arthroscopic 

surgery for diagnoses of right shoulder impingement and partial rotator cuff tear.

Under OWCP File No. xxxxxx795, by decision dated January 8, 2016, the occupational 

disease claim was denied because fact of injury had not been established. On January 28, 2016 

appellant, through counsel, filed a request for an oral hearing. The hearing was held on 

September 7, 2016. By decision dated November 2, 2016, an OWCP hearing representative 

affirmed the denial of the claim, as modified to find that causal relationship had not been 

established. 

OWCP subsequently received an October 26, 2016 report, submitted to File No. 

xxxxxx795, from Dr. Wilson who described appellant’s preinjury job duties. 

On December 21, 2016 appellant, through counsel, filed a request for reconsideration. 

By decision dated February 8, 2017, OWCP denied modification of the prior decisions.

 

3 5 U.S.C. § 8101 et seq.

4 Counsel did not request that the Board review the January 25, 2019 merit decision. See 20 C.F.R. § 501.3. In the 

appeal request and brief to the Board, counsel specifically limited his appeal to the nonmerit decision.

5 Order Remanding Case, Docket No. 17-0988 (issued February 2, 2018).
3

Appellant, through counsel, filed an appeal with the Board from the November 2, 2016 and 

February 8, 2017 decisions. By order dated February 2, 2018, the Board remanded the case to 

OWCP for it to combine File No. xxxxxx474 and File No. xxxxxx795, and issue a de novo

decision.6

OWCP administratively combined the files on February 20, 2018. 

On February 23, 2018 OWCP referred appellant to Dr. Andrew Farber, an osteopath who 

practices orthopedic surgery, for a second opinion evaluation. In a report dated March 12, 2018,

Dr. Farber described his review of the medical record and provided physical examination findings. 

He diagnosed right shoulder sprain, impingement syndrome, and partial thickness rotator cuff tear, 

noting symptoms of ongoing pain, alleged weakness, and loss of motion. Dr. Farber noted 

magnetic resonance imaging (MRI) scan findings consistent with these diagnoses. He opined that 

appellant’s right shoulder injury had resolved, that he needed no further treatment, and that he 

could return to full duty as an agricultural commodity grader without restrictions.

By decision dated March 23, 2018, issued under File No. xxxxxx795, OWCP found that 

appellant’s occupational disease claim was accepted for impingement syndrome of the right 

shoulder, right shoulder sprain, and partial right rotator cuff tear, resolved by March 12, 2018. The 

decision was based upon the March 12, 2018 second opinion report of Dr. Farber.

On May 26, 2018 appellant, through counsel, requested reconsideration. Counsel

maintained that additional cervical conditions should be accepted and that Dr. Farber’s opinion 

was of insufficient rationale to establish that appellant’s shoulder conditions had resolved. 

Appellant filed claims for compensation (Form CA-7) for the period beginning 

December 12, 2013 and continuing. 

By letter dated December 21, 2018, OWCP asked Dr. Farber to advise as to whether 

additional conditions should be accepted. 

In a report dated January 4, 2019, Dr. Farber advised that appellant’s right shoulder 

conditions were caused by the May 30, 2013 employment injury (OWCP File No. xxxxxx474). 

He opined that additional conditions should not be accepted.

By decision dated January 25, 2019, OWCP vacated the March 23, 2018 decision, in part, 

as modification was warranted. However, the decision was also affirmed in part as the evidence 

of record was insufficient to overturn the entire decision. It modified the prior decision to reflect 

that appellant’s shoulder conditions should be accepted under File No. xxxxxx474. OWCP further 

found, however, that the evidence continued to support that appellant’s right shoulder conditions 

had resolved effective March 12, 2018. 

 

6 Supra note 4.
4

On February 12, 2019 appellant, through counsel, requested reconsideration, reiterating 

that cervical conditions should be accepted, and that Dr. Farber’s report was insufficient to 

establish that appellant could return to work without restrictions.

By decision dated February 25, 2019, OWCP denied appellant’s reconsideration request. 

It found that the evidence did not contain a relevant legal argument not previously considered.

LEGAL PRECEDENT -- ISSUE 1

Section 8128(a) of FECA does not entitle a claimant the 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: (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.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 -- ISSUE 1

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).

With his February 12, 2019 request for reconsideration, counsel merely reiterated that 

cervical conditions should be accepted, and that Dr. Farber’s report was insufficient to establish 

that appellant could return to work without restrictions. The Board finds these assertions are 

duplicative of arguments counsel has made in the past. The Board has held that the submission of 

evidence or argument which repeats or duplicates evidence or argument already in the case record 

does not constitute a basis for reopening a case.12 Consequently, appellant was not entitled to a 

 

7 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). Chapter 2.1602.4b provides that 

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). 

10 20 C.F.R. § 10.606(b)(3); see J.B., Docket No. 18-1531 (issued April 11, 2019). 

11 20 C.F.R. § 10.608.

12 J.B., supra note 10.
5

review of the merits based on the first and second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3). 

Furthermore, appellant submitted no new evidence in support of his request for 

reconsideration.13 Thus, appellant is also not entitled to a review of the merits of his claim based 

on the third above-noted requirement under section 10.606(b)(3).14

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.15

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). 

 

13 Id.

14 T.M., Docket No. 19-0535 (issued July 25, 2019).

15 See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017);

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not 

meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits).
6

ORDER

IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board