United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

DEPARTMENT OF STATE, BUREAU OF 

DIPLOMATIC SECURITY, Washington, DC, 

Employer

__________________________________________

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Docket No. 18-1158

Issued: January 16, 2019

Appearances: Case Submitted on the Record

L. Christopher Breard, 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 May 17, 2018 appellant, through counsel, filed a timely appeal from a February 26, 

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 March 7, 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 March 5, 2013 appellant, then a 48-year-old special agent, filed a traumatic injury claim 

(Form CA-1) alleging that on May 15, 1998 he sustained injury while engaging in a “Red Man”

drill at the Federal Law Enforcement Training Center (FLETC) in Glynco, GA. He alleged injuries 

to his forehead, both hands, and right thumb. 

By decision dated February 19, 2014, OWCP denied the claim, finding that it had not been 

timely filed pursuant to 5 U.S.C. § 8122. 

In a letter postmarked March 13, 2014, appellant timely requested an oral hearing before 

an OWCP hearing representative. He also submitted additional evidence. A telephonic hearing 

was held on September 10, 2014. 

By decision dated December 4, 2014, an OWCP hearing representative set aside the 

February 19, 2014 decision as the evidence then of record established that the employing 

establishment had actual knowledge of the alleged injury on the date of the incident. The case was 

remanded to OWCP to determine whether a traumatic injury had been established and to issue a 

de novo decision. 

On remand, OWCP issued a December 16, 2014 decision denying the claim, finding that 

the medical evidence of record was insufficient to establish that a medical condition was diagnosed 

in connection with the accepted May 15, 1998 employment incident. 

In a letter postmarked January 9, 2015, appellant timely requested an oral hearing before 

an OWCP hearing representative, which was held telephonically on July 16, 2015. By decision 

dated September 29, 2015, the hearing representative modified the December 16, 2014 decision to 

reflect “that the claimant has not presented sufficient evidence establishing a condition or diagnosis 

as a result of the accepted work event.” The hearing representative, however, affirmed the denial 

of the claim finding that causal relationship had not been established.

Appellant, through counsel, requested reconsideration on January 29, 2016. Additional 

medical evidence was subsequently received, along with letters/pleadings. By decision dated 

February 22, 2016, OWCP denied modification of its prior decision. It found that the medical 

evidence submitted was insufficient to establish that his diagnosed medical conditions were 

causally related to the accepted May 15, 1998 employment injury.

In a report dated January 12, 2017, Dr. Oliver L. Kesterson, a neurologist, reviewed 

appellant’s medical history in detail. He concluded that appellant’s 1998 “Red Man drill mishap”

was the proximate cause of his spinal cord compression, resulting in central spinal cord syndrome. 

On February 13, 2017 appellant, through counsel, requested reconsideration. Additional 

medical evidence was submitted. By decision dated March 7, 2017, OWCP denied modification 
3

of its prior decisions. It reviewed the January 12, 2017 medical narrative from Dr. Kesterson, a 

neurologist, and found that it lacked the convincing quality necessary to establish causal 

relationship between appellant’s nonarthritic cervical spondylitic myelopathy and the accepted 

May 15, 1998 employment incident. OWCP noted that there was no medical evidence 

contemporaneous to the injury or any other medical evidence of the injury for more than seven 

years after the fact. It found that Dr. Kesterson’s theory on causal relationship relied upon the 

history provided by appellant and stacked “improbably upon improbability.”

3

On February 15, 2018 appellant, through counsel, again requested reconsideration. In his 

February 1, 2018 letter, counsel argued that the claims examiner’s denial was predicated seemingly 

upon his own review and effective reversal of the medical component of fact of injury, as opposed 

to causal relation. He indicated that the claims examiner’s bias was largely based upon his own 

opinion concerning appellant’s “mental state” as it regarded his employment activities in the weeks 

following the injury. Counsel argued that Dr. Kesterson had provided a “medically reasonable 

and well thought out” opinion based upon the medical evidence and explained why appellant 

would have remained ignorant of the severity of his injury for many years and why the injury, 

while temporarily painful, would not have prevented him from participating in required 

employment activities immediately following the injury, but that the injury progressed into the 

diagnosed disabling condition. He concluded that there was no contrary medical evidence to the 

conclusion of multiple attending physicians that the injury caused the condition of an undiagnosed 

cervical injury which resulted in permanent disability. 

In a May 10, 2017 affidavit, Special Agent L.A. provided his recollection of appellant’s 

injury following the 1998 trauma. 

In an August 24, 2017 letter, Dr. Kesterson indicated that he had reviewed a witness 

statement. He also related that appellant’s complaints were consistent with a diagnosis of an 

undiagnosed cervical injury. Dr. Kesterson indicated that he had not changed his previous 

diagnoses or the cause of appellant’s injury. He explained that, while a patient may have transient 

improvement following an initial injury, it was well known that patients with symptomatic cervical 

spondylitic myelopathy will have persistent worsening clinical symptoms ultimately requiring 

surgical treatment. In appellant’s case, Dr. Kesterson indicated that the compression of the spinal 

cord and nerve roots had manifested itself as neurological impairment with loss of use and severe 

pain in the hands and fingers, which ultimately resulted in a need for disc replacement. 

By decision dated February 26, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of his claim. It found that the evidence submitted was irrelevant or 

immaterial to the issue of causal relationship.

 

3 OWCP noted that Dr. Kesterson had opined that it was possible, though improbable, for a person to perform a 

physically demanding job, seemingly without symptoms severe enough to prompt the patient from seeking medical 

attention for several years following a cervical spine injury.
4

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 

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 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.7 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.8

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.9 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.10 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.11

The Board has held that the submission of evidence which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case. The Board has also held 

that the submission of evidence which does not address the particular issue involved does not 

constitute a basis for reopening a case. While the reopening of a case may be predicated solely on 

a legal premise not previously considered, such reopening is not required where the legal 

contention does not have a reasonable color of validity.12

 

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 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 (iFECS). Id. at Chapter 2.1602.4b.

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

9

J.F., Docket No. 17-1508 (issued March 28, 2018).

10 C.F., Docket No. 18-0360 (issued July 19, 2018); Mark H. Dever, 53 ECAB 710 (2002).

11 C.F., id.; Annette Louise, 54 ECAB 783 (2003).

12 M.E., 58 ECAB 694 (2007).
5

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).

The Board finds that appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law. In his February 15, 2018 reconsideration request, counsel argued that the 

claims examiner’s denial was predicated seemingly upon his own review and effective reversal of 

OWCP’s acceptance of the medical component of fact of injury. However, the issue in this case 

is causal relationship. Counsel’s argument is irrelevant to the critical issue of causal relationship, 

which is determined by rationalized medical evidence.13 As such, his argument does not have a 

reasonable color of validity and does not comprise a basis for reopening the case on its merits.14 

As appellant did not allege that OWCP had erroneously applied or interpreted a specific point of 

law or advance a relevant legal argument not previously considered by OWCP he is not entitled to 

a review of the merits of his claim based on the first and second requirements under section 

10.606(b)(3).

The Board further finds that appellant has not submitted relevant and pertinent new 

evidence in support of his reconsideration request. As previously noted, the underlying issue in 

this case is causal relationship. As the issue is medical in nature, it can only be resolved through 

the submission of medical evidence.15 On reconsideration, appellant submitted an affidavit from 

Special Agent L.A. However, the statement of a lay person is not competent evidence on the issue 

of causal relationship.16 

Appellant also submitted an August 24, 2017 letter from Dr. Kesterson. In this new letter

Dr. Kesterson noted that he has reviewed a witness statement describing appellant’s injury. He 

also related that appellant’s complaints were consistent with an undiagnosed cervical injury and 

that he had not changed his previous diagnoses or the cause of appellant’s injury. While this 

evidence was new, it did not constitute relevant and pertinent new medical evidence as it is 

duplicative of Dr. Kesterson’s previous opinion and does not provide a rationalized medical 

explanation of causal relationship. The Board has held that the submission of evidence which 

repeats or duplicates evidence already in the case record does not constitute a basis for reopening 

a case.17 

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.

 

13 E.D., Docket No. 18-0138 (issued May 14, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14 Supra note 12.

15 See M.A., Docket No. 18-0395 (issued July 17, 2018).

16 See R.M., Docket No. 08-2084 (issued April 7, 2009); James A. Long, 40 ECAB 538 (1989); Susan M. Biles, 40 

ECAB 420 (1988).

17 See L.R., Docket No. 18-0400 (issued August 24, 2018).
6

On appeal, counsel contends that the evidence submitted on reconsideration was relevant 

and responsive. He specifically asserts that the evidence submitted on reconsideration 

supplemented the evidentiary deficiencies and misinformation contained or identified in previous 

OWCP decisions and the file of record maintained by OWCP. As explained above, the newly 

submitted letter of Dr. Kesterson is irrelevant and therefore insufficient to require a 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 February 26, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 16, 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