United States Department of Labor

Employees’ Compensation Appeals Board

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J.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

LONG BEACH VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Long Beach, CA, Employer

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Docket No. 18-1531

Issued: April 11, 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 August 8, 2018 appellant filed a timely appeal from a February 23, 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 April 24, 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 the 

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

FACTUAL HISTORY

On March 24, 2000 appellant, then a 51-year-old material handler, filed an occupational 

disease claim (Form CA-2) alleging that, on January 3, 2000, he first became aware of medical 

conditions and realized their relationship to his federal employment. He explained that his injury 

occurred as a result of repetitive duties including lifting bond paper, pushing and pulling a cart, 

bending, walking, and delivering paper from the warehouse to reproduction. Appellant retired on 

April 30, 2001.

OWCP initially accepted the claim for thoracic strain, lumbar strain, right hip strain, right 

knee strain, right shoulder strain, and right wrist strain. It subsequently expanded acceptance of 

the claim to include right knee osteoarthritis and a tear of the medial meniscus of the right knee. 

Appellant underwent right knee arthroscopy/meniscectomy on November 21, 2000. He

underwent right shoulder arthroscopy with rotator cuff repair on February 25, 2010. 

In a June 11, 2016 letter, appellant requested that his accepted conditions be expanded to 

include additional lumbar conditions including lumbar degenerative disc disease and a chronic left 

side radiculopathy. Medical evidence was submitted. 

In a development letter dated July 14, 2016, OWCP noted that appellant’s back surgery in 

1983 and a work-related fall in December 1999 were unrelated to the current case. It advised that 

the evidence submitted was insufficient to expand the case for additional conditions and informed 

him of the type of evidence necessary to establish his claim. OWCP afforded appellant 30 days to 

submit the necessary evidence. Additional medical evidence was received.

By decision dated December 6, 2016, OWCP denied appellant’s request to expand the 

acceptance of his claim to include additional lumbar conditions including left-side radiculopathy. 

It found that the medical evidence submitted failed to explain how the more serious lumbar 

conditions had been caused or aggravated by the accepted employment factors. 

On December 28, 2016 appellant requested for reconsideration and submitted medical 

reports and authorization requests from Dr. Duc Thai Ngo, a Board-certified physiatrist. In his 

August 8, 2016 report, Dr. Ngo noted that appellant’s position in the warehouse involved very 

heavy labor, which included the loading, unloading, moving, and delivery of very heavy furniture 

and appliances weighing between 200 to 800 plus pounds. Appellant alleged that he was required 

to do the same heavy work even on light duty. Dr. Ngo reported that appellant’s preexisting back 

conditions and injuries had resolved. He opined that appellant’s alleged heavy work in the 

warehouse for 13 years (at the time of the original claim of January 3, 2000) aggravated his 

preexisting lumbar disc degeneration and accelerated the lumbar degeneration process which 

resulted in the spinal stenosis and consequential radiculopathy. Dr. Ngo further opined that, more 

likely than not, minus the heavy warehouse work from 1987 to 2000, appellant would not have 

been symptomatic due to the lumbar radiculopathy in 2000. 
3

On February 3, 2017 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), to Dr. Steven Ma, a Board-certified orthopedic surgeon, for a second opinion evaluation 

to determine whether the acceptance of the claim should be expanded to include lumbar 

radiculopathy and lumbar degenerative disc degeneration. It asked Dr. Ma to clarify whether 

appellant’s current lumbar conditions were causally related to the work duties accepted in the

January 30, 2000 work injury.

In a March 27, 2017 report, Dr. Ma reviewed the medical evidence of record, the SOAF,

and noted examination findings. He reported that appellant reported an employment injury to his 

back in 1984 which resulted in surgery, while the SOAF indicated that this was a nonindustrial 

condition and not work related. Dr. Ma noted that he first started work as a janitor and was 

transferred to the linen department because of residuals to his back from his nonindustrial injury 

in 1984, which was resolved by back surgery in 1984. He opined that appellant’s lumbar 

radiculopathy and lumbar degenerative disc degeneration were not causally related to the factors 

of employment described in the SOAF. Rather, all the findings on diagnostic testing showed that 

lumbar radiculopathy and lumbar degenerative disc degeneration were directly due to appellant’s 

preexisting, nonindustrial injury, which were resolved by back surgery in 1984. Dr. Ma noted that 

such degenerative conditions were not claimed until recently and, given the fact that he had not 

worked for the last 16 years, it would not make medical sense that it was caused by his 

employment. He concluded that appellant’s current lumbar degenerative disc disease and 

radiculopathy were due to his preexisting injury and surgery, which was much more traumatic to 

his back. Dr. Ma explained that appellant had residuals from the preexisting back injury and 1984 

back surgery as he could not return to work as a janitor and began working in the linen area after 

his back surgery. 

By decision dated April 24, 2017, OWCP denied modification of its December 6, 2016 

decision. It determined that Dr. Ngo’s August 8, 2016 report was not well rationalized or based 

on an accurate factual history, including the particular repetitive work factors accepted in the claim. 

OWCP afforded determinate weight to the second opinion report of Dr. Ma, who opined that 

appellant’s lumbar degenerative disc disease and radiculopathy were not causally related to the 

January 30, 2000 employment injury. 

On November 27, 2017 appellant requested reconsideration. In a November 20, 2017 

letter, he alleged that he had worked for many years doing very hard work in the warehouse without 

back problems until January 2000. Appellant noted that he was happy that Dr. Ma had mentioned 

the history of his surgery, because if he had problems with his back, then he would not have been 

hired to work in the warehouse. He also voiced several concerns, which included an error with his 

CA-7 form, claim for compensation. Appellant alleged that his injury occurred on the job and that 

his conditions were due to what happened on January 3, 2000. 

OWCP subsequently received a March 22, 2016 procedure note pertaining to a lumbar 

epidural steroid injection and a June 14, 2017 MRI scan report of the right knee.

Multiple medical progress reports and work status reports from Dr. Ngo from 

November 15, 2016 through February 7, 2018 were also received. Dr. Ngo provided information 

on appellant’s examination findings, treatment plans, and work status. He continued to diagnose 

thoracic spine strain, lumbar muscle strain, derangement of medial meniscus of right knee, and 
4

osteoarthritis of right knee, right shoulder strain, and impingement syndrome of right shoulder. 

Dr. Ngo also provided permanent modified work/activity restrictions. No further opinion 

regarding the cause of appellant’s diagnosed conditions was provided. 

By decision dated February 23, 2018, OWCP denied appellant’s request for 

reconsideration, finding that he neither raised substantive legal questions nor submitted relevant 

and pertinent new evidence. 

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

Appellant’s timely 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 by OWCP. The underlying issue on appeal involved whether appellant’s 

degenerative lumbar disc disease and left radiculopathy were caused or aggravated by his accepted 

January 3, 2000 employment injury. This is a medical issue which must be determined by 

 

3 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).

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.
5

rationalized medical evidence.8 Appellant’s own opinion was duplicative of arguments he has 

made in the past, and does not constitute medical evidence. 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.9 Consequently, appellant was not entitled 

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

§ 10.606(b)(3).

Furthermore, appellant failed to submit relevant and pertinent new evidence in support of 

his request for reconsideration.

10

 While he submitted new medical evidence, none of it provided 

a medical opinion on causal relationship. The June 14, 2017 MRI scan report of the right knee 

and a March 22, 2016 procedure note of a lumbar epidural steroid injection are not relevant and 

pertinent to the issue of a claimed causal relationship of appellant’s lumbar spine conditions.

Likewise, Dr. Ngo’s progress reports and work status reports failed to provide an opinion as to 

whether the January 3, 2000 employment injury caused, aggravated, or contributed to the 

diagnosed lumbar disc degeneration and lumbosacral radiculopathy. The Board has held that the 

submission of evidence which does not address the particular issue involved does not constitute a 

basis for reopening a case.

11

 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).12

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. 

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).

 

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

9 See L.R., Docket No. 18-0400 (issued August 24, 2018); Candace A. Karkoff, 56 ECAB 622 (2005).

10 M.C., Docket No. 14-0021 (issued March 11, 2014); M.H., Docket No. 13-2051 (issued February 21, 2014).

11 See N.B., Docket No. 17-0927 (issued April 18, 2018); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

12 H.H., Docket No. 18-1660 (issued March 14, 2019). 
6

ORDER

IT IS HEREBY ORDERED THAT the February 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 11, 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