United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

DEPARTMENT OF THE ARMY, 7TH SIGNAL 

COMMAND, Fort Gordon, GA, Employer

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Docket No. 18-1809

Issued: May 23, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 27, 2018 appellant filed a timely appeal from an August 3, 2018 nonmerit 

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

elapsed from OWCP’s last merit decision, dated October 31, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of her

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

FACTUAL HISTORY

On April 20, 2017 appellant, then a 45-year-old budget analyst, filed a traumatic injury 

claim (Form CA-1) alleging that on April 14, 2017 she was exposed in her office to a natural gas 

leak while in the performance of duty. She alleged that the exposure caused shortness of breath, 

dizziness, weakness, nausea, and a headache. On the Form CA-1, S.H., appellant’s coworker, 

provided an April 20, 2017 witness statement confirming that appellant had become dizzy, had 

difficulty breathing, and complained of weakness, nausea, and a headache. She further noted that 

the fire department confirmed that there was a gas leak. Appellant stopped work on April 14, 2017.

In support of her claim, appellant submitted medical reports dated April 15, 2017 from a 

civilian hospital emergency department. Dr. Subhose X. Bathina, a treating family practitioner, 

noted that there had been a natural gas leak outside her window or near her desk. Appellant had 

fallen asleep at her desk and had become short of breath. Coworkers then discovered the gas leak. 

Appellant had been transported to an employing establishment hospital, then transferred to a 

civilian hospital for observation. Her condition had improved in the emergency room with oxygen 

delivered by nasal cannula. On examination, Dr. Bathina observed mildly elevated blood pressure. 

He diagnosed “[h]eadache and dizziness with natural gas exposure, presently improving,” and 

“[u]ncontrolled hypertension, which is new.”

3

 Dr. Bathina admitted appellant for observation. 

Appellant was discharged in stable condition on April 15, 2017 by Dr. Omar Ahmad, Boardcertified in internal medicine, who noted a normal respiratory and neurological examination. 

In a development letter dated June 1, 2017, OWCP informed appellant that the evidence 

submitted was insufficient to establish the claim. It advised her of the type of medical and factual 

evidence needed, including corroboration of the gas leak, and a narrative report from her physician 

explaining how and why those events had caused her medical conditions. OWCP afforded 

appellant 30 days to submit the necessary evidence. No additional evidence was received.

By decision dated July 14, 2017, OWCP accepted that the April 14, 2017 gas leak had 

occurred at the time, place, and in the manner alleged. It denied the claim, however, as the medical 

evidence of record did not contain a diagnosis of a medical condition caused by the accepted 

employment incident. OWCP concluded, therefore, that appellant had not met the requirements 

to establish an injury as defined by FECA. 

In a letter dated August 5, 2017, appellant requested a review of the written record by an 

OWCP hearing representative. She submitted her August 5, 2017 statement asserting that on 

April 14, 2017 she had telephoned 911 to report the gas leak and received instructions to evacuate 

 

3 Chest x-rays performed on April 14, 2017 demonstrated left ventricular prominence and minimal increased 

interstitial markings without infiltrate. Appellant also submitted laboratory test results. 
3

the building. An emergency medical technician (EMT) observed appellant in an ambulance then 

transported her to the employing establishment’s hospital. 

Appellant provided witness statements from two coworkers and a safety and occupational 

health official, who corroborated the April 14, 2017 gas leak. Following the building evacuation, 

appellant had been stabilized at the employing establishment’s hospital then treated at a civilian

hospital. L.D. confirmed that appellant had been in the performance of duty at the time of the gas 

leak. 

Appellant submitted a report dated April 14, 2017 by Dr. Christopher K. Jensen, a treating 

physician Board-certified in emergency medicine, affiliated with the employing establishment’s 

hospital. Dr. Jensen noted her exposure to a gas leak at work earlier that day. While on oxygen 

at the hospital, appellant had normal oxygen saturation and no difficulty breathing. Dr. Jensen 

transferred her to a civilian hospital for observation of symptoms of central nervous symptom 

toxicity. 

Appellant also provided an EMT observation and transport report dated April 14, 2017 and 

a hospital nursing log dated April 14 to 15, 2017.

By decision dated October 31, 2017, an OWCP hearing representative affirmed the denial 

of appellant’s claim as fact of injury had not been established. He found that the medical evidence 

of record did not contain a diagnosis of a medical condition causally related to the accepted 

April 14, 2017 employment incident.

On July 31, 2018 appellant requested reconsideration. She submitted additional field notes

dated April 14, 2017, signed by three EMTs, and a March 6, 2018 ambulance bill. Appellant also 

submitted copies of emergency medical service and hospital reports previously of record.

By decision dated May 4, 2018, OWCP denied appellant’s request for reconsideration

finding that the evidence submitted was insufficient to warrant review of its October 31, 2017 

merit decision. It found that the evidence submitted in support of her request was repetitive or 

duplicative of evidence previously of record.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4

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

decision for which review is sought.5 If it chooses to grant reconsideration, it reopens and reviews 

 

4 20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

5

Id. at § 10.607(a).
4

the case on its merits.6 If the request is timely, but fails to meet at least one of the three

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.7

ANALYSIS

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). 

In her timely application for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, nor she did advance a new and relevant 

legal argument not previously considered. Accordingly, she is not entitled to a review of the merits 

of her claim based on the first and second above-noted requirements under section 10.606(b)(3). 

With her July 31, 2018 reconsideration request, appellant submitted EMT field notes and 

an ambulance bill. This evidence, while new, is not relevant to the underlying medical issue of 

fact of injury.

8

 Evidence which does not address the particular issue under consideration does not 

constitute a basis for reopening a case.9

Appellant also submitted copies of medical evidence and emergency medical technician 

reports previously of record. Evidence or argument that repeats or duplicates evidence already in 

the case record has no evidentiary value and does not constitute a basis for reopening a case.10 

Moreover, the submission of evidence which does not address the particular issue involved in the 

case does not constitute a basis for reopening the claim.11 Accordingly, appellant is not entitled to 

a review of the merits of her claim based on the third above-noted requirement under section 

10.606(b)(3). 

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.12

 

6

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

7

Id. at § 10.608(b); H.H., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

8 B.E., Docket No. 18-0849 (issued January 7, 2019); W.C., Docket No. 15-1878 (issued January 6, 2016); see

James A. Long, 40 ECAB 538 (1989); Susan M. Biles, 40 ECAB 420 (1988) (where the Board held that the statement 

of a layperson is not competent evidence on relationship medical issue).

9 See F.B., Docket No. 18-1039 (issued December 6, 2018).

10 R.G., Docket No. 18-1045 (issued February 1, 2019); A.A., Docket No. 18-0031 (issued April 5, 2018); James W.

Scott, 55 ECAB 606 (2004).

11 R.G., id.; D. Wayne Avila, 57 ECAB 642 (2006).

12 R.G., id.; 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).
5

On appeal, appellant contends that she is entitled to reimbursement for medical transport 

and hospital costs associated with the accepted April 14, 2017 employment incident. The Board 

notes that the employing establishment confirmed and OWCP accepted the April 14, 2017 

occupational exposure. However, there is no evidence of record that the employing establishment 

completed an authorization for examination and/or treatment (Form CA-16) at the time of the 

accepted April 14, 2017 employment incident.

13

CONCLUSION

The Board further 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 August 3, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 23, 2019 

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 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. C.W., Docket No. 17-1293 

(issued February 12, 2018). 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).