United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR 

STATION, Key West, FL, Employer

__________________________________________

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Docket No. 19-0725

Issued: December 23, 2019

Appearances: Case Submitted on the Record

Wayne Johnson, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 18, 2019 appellant, through counsel, filed a timely appeal from an August 22, 

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 May 4, 2017, 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 this case.

 

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

FACTUAL HISTORY

On January 8, 2016 appellant, then a 52-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on January 7, 2016 he sustained abrasions to his right leg and right arm, 

and injured his right hip while in the performance of duty. He related that he started to black-out 

and fell on a rescue saw in the public works stock area. Appellant stopped work on 

January 7, 2016.3

OWCP subsequently received a January 7, 2016 medical referral report, wherein 

appellant’s supervisor related that on January 7, 2016 appellant had a slip and fall at work. An 

unknown care provider completed the form and indicated that appellant had not suffered

significant injuries from the fall at work aside from abrasions and contusions.

In a January 20, 2016 statement, R.C., appellant’s supervisor, noted that he was having 

doubts about appellant’s numerous injuries and the extent of his condition. He explained that 

appellant underwent a fitness-for-duty examination on January 20, 2016 and was found fit for duty 

with no evidence of appellant having a cracked rib or collapsed lung.

In a January 22, 2016 letter, the employing establishment controverted appellant’s claim, 

contending that he had not established fact of injury nor entitlement to continuation of pay (COP).

In a January 25, 2016 development letter, OWCP advised appellant that, when his claim 

was first received, it appeared to be a minor injury that resulted in minimal or no lost time from 

work. It explained that because the employing establishment had controverted appellant’s claim, 

it was now formally adjudicating the merits of the claim. OWCP requested that he submit 

additional factual and medical evidence and provided a questionnaire for his completion. It 

afforded him 30 days to provide the necessary evidence. 

Appellant submitted January 7, 2016 hospital emergency room records, which indicated 

that appellant was treated by Dr. Cheryl Lund, a Board-certified internist, for a fall-related injury. 

Dr. Lund discussed appellant’s medical history, including chronic back pain, fibromyalgia, and 

coronary artery disease. She recounted that two days prior, appellant was undergoing physical 

therapy and experienced new cervical pain and numbness in both arms. Dr. Lune related that he

was at work when his head, neck, and back became too painful that he passed out and fell down. 

Upon examination of appellant’s lumbar spine, she observed right costovertebral angle tenderness 

and right flank pain. Neurological examination was limited due to pain from his herniated disc. 

Dr. Lund assessed right flank pain, chronic back pain, and coronary artery disease. 

In a January 9, 2016 consultation report, Dr. Joan Homan, a Board-certified internist 

specializing in cardiovascular disease, discussed appellant’s medical history and related that 

 

3 Appellant has a prior claim for a December 29, 2014 traumatic injury accepted under OWCP File No. xxxxxx348 

for lumbar sprain and left sacroiliitis. OWCP has not administratively combined appellant’s claims.
3

appellant was seen for a syncopal episode. She conducted an examination and reviewed 

appellant’s diagnostic results. Dr. Homan noted that there was no evidence of cardiac 

abnormalities on appellant’s echocardiogram or on telemetry. She diagnosed syncope, likely due 

to severe pain, fibromyalgia, and significant disc disease.

OWCP received diagnostic test results dated January 7 and 20, 2016.

By decision dated March 3, 2016, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish that the January 7, 2016 employment incident 

occurred as alleged. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA. 

Following the decision, appellant submitted additional medical evidence. In a March 18, 

2016 progress note, Dr. Robert Catana, an orthopedic surgeon, noted appellant’s complaints of left 

arm, right arm, and back pain. He provided examination findings and diagnosed lumbosacral disc 

degeneration and cervical disc displacement.

In a March 24, 2016 narrative report, Dr. Heldo Gomez, a Board-certified neurosurgeon, 

noted appellant’s complaints of cervical, trapezius, and interscapular pain since a December 29, 

2014 “slip and fall” incident. He examined appellant’s spine and diagnosed cervical stenosis at 

C3-4, C5-6, and C6-7, cervicobrachial syndrome, cervicalgia, and cervical radiculitis at C5-6 and 

C6-7. Dr. Gomez concluded that appellant was a candidate for cervical decompression, fusion, 

and anterior instrumentation surgery. In an April 11, 2016 work status note, he related that 

appellant could not work until further notice. 

In an April 11, 2016 prescription note, Dr. Julie Ann Floyd, a Board-certified physiatrist, 

recommended that appellant be off work until May 30, 2016.

Appellant submitted hospital records dated May 25, 2016, which revealed that he was 

treated by Dr. Horacio Reinoso, an emergency medicine physician, for complaints of confusion 

and weakness. He reviewed appellant’s history and noted that he underwent a cervical fusion the 

prior Tuesday. Dr. Reinoso provided examination findings and appellant was discharged from the 

hospital.

On March 2, 2017 appellant, through counsel, requested reconsideration and submitted 

additional medicine evidence. He indicated that appellant had a previously accepted claim under 

OWCP File No. xxxxxx348 and was authorized to receive treatment for manipulation of the spine. 

Counsel reported that during a January 5, 2016 physical therapy appointment, the therapist 

manipulated appellant’s cervical spine and caused him immediate pain and numbness. He 

indicated that on January 7, 2016 appellant experienced intense cervical and lumbar pain, which 

caused him to black out and fall down at work. Counsel asserted that an injury that occurs while 

receiving authorized medical care is compensable and that a fall at work is also compensable. He

submitted physical therapy progress notes dated January 5 and 19, 2016. 

A March 2, 2016 cervical spine MRI scan revealed right paracentral posterior disc

herniation and associated radial tear at C3-4, disc bulging at C5-6, C6-7, and C7-T1, and posterior 

disc herniation at T2-3.
4

In a November 28, 2016 narrative report, Dr. Catana indicated that appellant had been 

under his care for a work-related injury as of December 29, 2014 under File No. xxxxxx348. He 

related that appellant’s claim was accepted for lumbar sprain and left sacroiliitis and reported that 

appellant had significant limitations following the injury, but he was able to return to work. 

Dr. Catana described that on January 5, 2016 appellant underwent physical therapy for his cervical 

condition and that on January 7, 2016 he passed out at work due to severe pain. He opined that 

appellant’s cervical condition, surgery, and disability were a consequence of his accepted

December 29, 2014 employment injury. 

By decision dated May 4, 2017, OWCP modified the March 3, 2016 decision. It accepted 

that the January 7, 2016 employment incident occurred as alleged. However, OWCP denied 

appellant’s claim finding that the medical evidence of record was insufficient to establish that 

appellant’s medical conditions were causally related to the accepted employment incident.

On May 4, 2018 appellant, through counsel, requested reconsideration. Counsel contended 

that the Board had previously ruled in R.O., Docket No. 16-1516 (issued August 28, 2017), that 

an injury that developed during therapy from a compensable original injury is a consequential 

injury, which is compensable. 

In a narrative report signed on August 22, 2017, Dr. Catana indicated that he reviewed 

OWCP’s May 4, 2017 decision and provided this narrative report to clarify OWCP’s questions 

regarding appellant’s cervical condition. He noted that appellant had no cervical complaints prior 

to the January 5, 2016 employment incident. Dr. Catana related that during a January 5, 2016 

physical therapy appointment, appellant injured his neck. He explained that on January 7, 2016 

appellant passed out at work because of the pain and landed on a rescue saw. Dr. Catana noted 

that appellant was evaluated in the emergency room and a cervical MRI scan showed paracentral 

disc herniation with radial tear at C3-4, bulging discs at C5-C6, C6-C7, and C7-T1, and a disc 

herniation at C7-T1. He noted that the emergency room provider ruled out cardiac issues as the 

cause of appellant’s syncopal episode. Dr. Catana explained that appellant’s passing out was 

consistent with the pain he experienced. He further opined that the mechanisms of injury were 

consistent with a cervical injury being caused in the therapy session and the subsequent fall at 

work. Dr. Catana concluded that appellant’s cervical conditions were directly related to the 

January 7, 2016 “industrial accident” and that the January 7, 2016 incident permanently 

aggravated appellant’s asymptomatic cervical conditions. 

By decision dated August 22, 2018, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

 

4 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).
5

limitations in exercising its authority.5 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.6

A timely request 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.7

When a timely request 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.8

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). 

In the May 4, 2018 request for reconsideration and accompanying statement, counsel 

contended that appellant sustained a compensable injury during a physical therapy appointment. 

However, this is not a new legal argument not previously considered by OWCP. As the 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, appellant is not 

entitled to a review of the merits of her claim based on the first and second above-noted

requirements under 20 C.F.R. § 10.606(b)(3).

Along with his May 14, 2018 reconsideration request, appellant submitted a narrative 

report by Dr. Catana signed on August 22, 2017. He explained that on January 7, 2016 appellant 

passed out at work because of severe pain after a physical therapy appointment. Dr. Catana 

reported that appellant’s passing out was consistent with the pain he experienced and further 

opined that the mechanisms of injury was consistent with a cervical injury being caused in the 

therapy session and the subsequent fall at work. He concluded that appellant’s cervical conditions 

were directly related to the January 7, 2016 “industrial accident.” The Board finds, however, that 

this report is substantially similar to Dr. Catana’s November 28, 2016 report, which was previously 

considered by OWCP. Dr. Catana did not provide pertinent new or relevant evidence explaining 

how appellant’s cervical conditions were causally related to the accepted January 7, 2016 

employment incident. The Board has held that the submission of evidence which duplicates or is 

substantially similar to evidence already in the case record does not constitute a basis for reopening 

 

5 20 C.F.R. § 10.607.

6

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. Id. at Chapter 2.1602.4b.

7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(a), (b).
6

a case.9 Therefore, he was not entitled to a review of the merits based on the third above-noted 

requirement under 20 C.F.R. § 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. On appeal 

counsel contends that OWCP improperly denied merit review even though appellant submitted a 

new medical report linking his medical condition to the accepted employment incident. As 

explained above, Dr. Catana’s August 22, 2017 medical report was substantially similar to his 

previous November 28, 2016 report, and accordingly, did not warrant further merit review of 

appellant’s claim.

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 August 22, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 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

 

9 T.W., Docket No. 19-0786 (issued September 18, 2019); E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 

59 ECAB 141 (2007).