United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL PROTECTION SERVICE, 

Des Moines, IA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0312

Issued: June 18, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 28, 2018 appellant filed a timely appeal from a June 21, 2018 nonmerit 

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

elapsed since OWCP’s last merit decision, dated March 26, 2018, 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 

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).

 

1 5 U.S.C. § 8101 et seq.

2 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY

On August 24, 2016 appellant, then a 34-year-old physical security specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on August 5, 2016 she sustained a possible 

cervical fracture due to a motor vehicle accident while in the performance of duty. She explained

that she was approaching a barbed-wire gate and attempted to slam on the brakes, but her vehicle 

skidded through a barbed-wire gate causing her side airbags to deploy. Appellant stopped work

on August 11, 2016. 

An August 17, 2016 magnetic resonance imaging (MRI) scan of appellant’s cervical spine 

indicated no evidence of a fracture, herniated discs, or stenosis, and also indicated normal soft 

tissue findings. A mild straightening of cervical lordosis was noted.

In an August 23, 2016 note, Dr. Hanna Engel-Brower, Board-certified in family medicine, 

reported that appellant was confined to desk work and indicated that she was to undergo physical 

therapy.

In a development letter dated August 25, 2016, OWCP informed appellant that the 

evidence of record was insufficient to establish her traumatic injury claim. Appellant was advised 

of the medical and factual evidence needed. OWCP afforded her 30 days to submit the requested

evidence.

In a September 2, 2016 attending physician’s report (Form CA-20), Dr. Engel-Brower 

diagnosed neck pain which she opined was causally related to appellant’s August 5, 2016 motor 

vehicle accident. She noted that appellant’s cervical spine x-ray revealed reversal of the cervical 

lordosis and body height loss at C6. The cervical spine MRI scan revealed normal findings. 

By decision dated September 30, 2016, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish a firm medical diagnosis which could be 

reasonably attributed to the accepted August 5, 2016 employment incident.

On October 26, 2016 appellant requested an oral hearing before an OWCP hearing 

representative.

In an October 14, 2016 medical note, Dr. Engel-Brower discussed appellant’s physical 

therapy treatment and work restrictions, noting that she had been released to full-duty work on 

September 19, 2016.

A hearing was held on May 10, 2017 and appellant testified in support of her claim. She 

noted that her cervical x-rays showed a mild reversal of the usual cervical lordosis and her MRI 

scan also revealed a mild straightening of the cervical lordosis that was not as prominent. 

Appellant reported that her physician informed her that this was “a kind of whiplash” for which 

she underwent a course of physical therapy. She reported continued symptoms following her 

return to full-duty work which subsequently resulted in low back symptoms due to inflammation 

of her neck. The hearing representative advised her of the medical evidence needed in support of 

her claim and the record was held open for 30 days. 
3

Following the hearing, a form dated August 25, 2016 was received on which appellant 

advised that she had previously undergone a micro discectomy. She also reported current 

symptoms of neck stiffness.

In an undated note received on July 10, 2017, Dr. Engel-Brower reported that appellant 

had been evaluated in her clinic for neck pain on August 8, 2016 following a work related motor 

vehicle accident which had occurred three days prior. She noted a muscle spasm in the cervical 

spine which was due to a whiplash injury. Dr. Engel-Brower noted that appellant had muscle 

spasms and her x-rays revealed evidence of a reversal of cervical lordosis. Appellant was placed 

in a cervical collar to stabilize the cervical spine and restricted from working until a cervical MRI 

scan could be performed. Dr. Engel-Brower noted that appellant’s August 17, 2016 cervical MRI 

scan revealed persistent, but improving, straightening of the cervical spine which was also due to 

muscle spasm.

By decision dated July 24, 2017, OWCP’s hearing representative affirmed the 

September 30, 2016 decision, finding that the evidence of record was insufficient to establish a 

firm medical diagnosis which could be reasonably attributed to the accepted August 5, 2016 

employment incident. 

In an undated narrative statement received on December 26, 2016, appellant argued that

Dr. Engel-Brower’s report previously submitted explained how the motor vehicle accident caused 

her cervical spine muscle spasms and whiplash injury. She noted resubmission of the report and

the cervical spine x-ray and MRI scan studies, as well as submission of two pictures of her vehicle 

which showed the barbed wire gate and where the airbags had deployed. 

By decision dated March 26, 2018, OWCP denied modification of the July 24, 2017 

decision finding that the evidence of record failed to establish a firm medical diagnosis which 

could be reasonably attributed to the accepted August 5, 2016 employment incident.

On June 5, 2018 appellant requested reconsideration of OWCP’s decision. 

In support of her claim, appellant submitted physical therapy notes dated August 25 and 

September 9, 2016 documenting treatment for neck pain. She also submitted an unsigned and 

undated medical note received on June 5, 2018 which was a partial duplicate of Dr. EngelBrower’s previously submitted July 26, 2017 note. The medical note reported appellant’s muscle 

spasm of the cervical spine was due to a whiplash injury that was caused from the airbags 

deploying as a result of the August 5, 2016 motor vehicle accident. Findings pertaining to cervical 

spine x-ray and MRI scan studies were discussed.

Appellant also resubmitted photographs related to the August 5, 2016 motor vehicle 

accident. 

By decision dated June 21, 2018, OWCP denied further merit review of appellant’s claim 

pursuant to 5 U.S.C. § 8128(a). It found that her reconsideration request neither raised substantive 

legal questions, nor included new and relevant pertinent evidence sufficient to warrant further 

merit review of her claim. 
4

LEGAL PRECEDENT

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

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 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.5

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.6 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.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).

8

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

erroneously applied or interpreted a specific point of law, and she did not advance a new and 

relevant legal argument not previously considered.9 Consequently, she is not entitled to 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).

The Board notes that the underlying issue in this case was whether appellant sustained a 

diagnosed medical condition causally related to the accepted August 5, 2016 employment incident. 

That is a medical issue which must be addressed by relevant medical evidence not previously 

 

3 This section provides in pertinent part: the 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).

4 20 C.F.R. § 10.607.

5

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). Chapter 2.1602.4b.

6 20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608.

8 G.Q., Docket No. 18-1697 (issued March 21, 2019).

9 T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008).
5

considered.10 In support of her request for reconsideration appellant submitted physical therapy 

notes. As these notes were not signed or reviewed by a physician, they do not constitute competent 

medical evidence and are thus irrelevant to the critical issue of causal relationship.11 The Board 

has held that evidence which is irrelevant to the claim is insufficient to warrant a merit review.12

Appellant also submitted a partial duplicate of Dr. Engel-Brower’s July 26, 2017 note, 

discussing diagnostic testing, which was previously considered in the prior OWCP merit decisions, 

as well as photographs from the motor vehicle accident already of record. Evidence which repeats 

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

a basis for reopening a case.13 

In this case, appellant failed to submit relevant and pertinent new evidence establishing a 

firm medical diagnosis.14 Thus, appellant is not entitled to a review of the merits of her claim 

based on the third requirement under 20 C.F.R. § 10.606(b)(3).15

Accordingly, 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.16

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).

 

10 D.L., Docket No. 16-0342 (issued July 26, 2016).

11 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law). C.L., Docket No. 17-0354 (issued 

July 10, 2018) (physical therapists are not considered physicians under FECA).

12 J.W., Docket No. 18-0800 (issued November 19, 2018). 

13 D.T., Docket No. 17-1734 (issued January 18, 20180; Richard Yadron, 57 ECAB 207 (2005).

14 P.C., Docket No. 18-1703 (issued March 22, 2019); M.H., Docket No. 13-2051 (issued February 21, 2014).

15 Id.

16 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).
6

ORDER

IT IS HEREBY ORDERED THAT the June 21, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board