United States Department of Labor

Employees’ Compensation Appeals Board

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M.C., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

CORRECTIONAL INSTITUTE, Berlin, NH, 

Employer

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Docket No. 18-0841

Issued: September 13, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 13, 2018 appellant filed a timely appeal from a September 18, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated November 16, 2016, 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 to review the merits of this case.

3

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20 

C.F.R. § 501.5(b). By order dated February 22, 2019, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying 

Request for Oral Argument, Docket No. 18-1556 (issued February 22, 2019).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the September 18, 2017 decision, OWCP received additional evidence. Appellant 

also submitted new evidence accompanying his request for appeal to the Board. 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 May 23, 2017 appellant, then a 47-year-old senior officer specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on that day he injured his left knee when he got up from a 

chair while in the performance of duty. On the reverse side of the claim form the employing

establishment indicated that appellant stopped work on the date of injury.

OWCP subsequently received medical evidence, including attending physician’s reports 

(Form CA-20) dated June 13 and 27, 2017 by Dr. Robert M. Shalvoy, an attending Board-certified 

orthopedic surgeon. Dr. Shalvoy noted that appellant sustained a left knee injury on May 23, 2017. 

He diagnosed acute lateral meniscus tear of the left knee, initial encounter, and checked a box 

marked “yes” indicating that the diagnosed condition was caused or aggravated by the described 

employment activity. Dr. Shalvoy indicated that appellant was totally disabled for the period 

June 6 to September 1, 2017. He advised that appellant could not work, pending a magnetic 

resonance imaging (MRI) scan to rule out a lateral meniscus tear.

In a development letter dated June 28, 2017, OWCP informed appellant that, when his 

claim was received, it appeared to be for a minor injury that resulted in no lost time from work 

and, based on these criteria and because the employing establishment did not controvert

continuation of pay or challenge the case, payment of a limited amount of medical expenses was 

administratively approved. It reopened the claim for formal consideration of the merits because 

he had not returned to work in a full-time capacity. OWCP requested that appellant submit a 

narrative medical report from his physician, which contained a detailed description of findings and 

diagnoses, explaining how the reported work incident caused or aggravated his medical condition. 

It also provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

OWCP received a progress note dated June 6, 2017 by Jessica Morse, a certified physician 

assistant, who diagnosed acute lateral meniscus tear of the left knee, initial encounter.

OWCP also received a letter dated July 6, 2017 by Dr. Shalvoy who opined that appellant’s 

left knee injury, along with his history and examination, was concerning for an acute lateral 

meniscus tear. Dr. Shalvoy further opined that this condition was a result of his May 23, 2017 

work-related injury.

On July 24, 2017 appellant responded to OWCP’s development questionnaire. He 

essentially reiterated the factual history of injury he provided on the May 23, 2017 CA-1 form. 

Appellant responded “not applicable” when asked to provide witness statements. He maintained 

that the medical evidence already submitted established that he had a torn meniscus of the left knee 

and that he was waiting for a left knee MRI scan. Appellant indicated that he had not sustained 

any other injury on or off duty between the date of injury and the date he first reported his injury 

to a physician. He again responded “not applicable” when asked to describe his condition between 

the date of injury and the date he received medical attention and the nature and frequency of any 

home treatment. Appellant related that he did not have any similar disability or symptoms before 

the claimed injury.
3

By decision dated August 3, 2017, OWCP accepted that the May 23, 2017 employment 

incident occurred as alleged, that a medical condition had been diagnosed, and that the employment

incident was within the performance of duty. However, it denied appellant’s traumatic injury 

claim because the medical evidence of record was insufficient to establish that his medical

condition was causally related to the accepted employment incident.

On August 21, 2017 appellant requested reconsideration. He also submitted an employing

establishment health unit report dated May 23, 2017 containing an illegible signature, which 

provided an assessment of weakness, weight-bearing left leg that was unable to ambulate without 

a cane.

Appellant further submitted an additional Form CA-20 report dated August 15, 2017 from

Dr. Shalvoy who reiterated his diagnosis of acute lateral meniscus tear of the left knee, initial 

encounter, and again checked a box marked “yes” indicating that this condition was caused or 

aggravated by the May 23, 2017 employment activity. Dr. Shalvoy noted that appellant was totally 

disabled from July 24 to September 26, 2017. He restated the need for a left knee MRI scan to 

rule out a lateral meniscus tear.

Appellant resubmitted Ms. Morse’s June 6, 2017 report and Dr. Shalvoy’s July 6, 2017 

letter.

OWCP, by decision dated September 18, 2017, denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a), finding that the evidence 

submitted was irrelevant, duplicative, and repetitious.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. It may review an award for or against payment 

of compensation at any time based on its own motion or on application.4

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence which: (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.5 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.6 If the 

request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will 

deny the request for reconsideration without reopening the case for review on the merits.7

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-

1569 (issued December 9, 2008).

6

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

7

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

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).8

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

erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal 

argument not previously considered by OWCP.9 Consequently, he is not entitled to a review of 

the merits of his claim based on the first and second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3).10

The underlying issue in this case is whether appellant sustained a left knee injury causally

related to the accepted May 23, 2017 employment incident. That is a medical issue which must 

be addressed by relevant medical evidence not previously considered.11 On reconsideration 

appellant submitted Dr. Shalvoy’s new August 15, 2017 Form CA-20 report in which he continued 

to diagnose an acute lateral meniscus tear of the left knee, initial encounter, and check a box 

marked “yes” indicating that this condition was caused or aggravated by the May 23, 2017 

employment incident. Dr. Shalvoy also continued to address appellant’s total disability from work 

and need to undergo a left knee MRI scan to rule out a lateral meniscus tear. The Board finds that

Dr. Shalvoy’s report although new, is cumulative and substantially similar to his previously

submitted reports. 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.12

Appellant also submitted a May 23, 2017 employing establishment health unit report which 

included an illegible signature, providing an assessment of weakness, weight-bearing left leg that 

was unable to ambulate without a cane. Since this report contains an illegible signature, the Board 

finds that it is of no probative value as it is not established that the author is a physician.13

Appellant resubmitted Ms. Morse’s June 6, 2017 report and Dr. Shalvoy’s July 6, 2017 

report. As noted above, evidence that repeats or duplicates evidence already in the case record 

does not constitute a basis for reopening a case.14 Because appellant’s request for reconsideration 

 

8 See R.S., Docket No. 19-0312 (issued June 18, 2019); G.Q., Docket No. 18-1697 (issued March 21, 2019).

9 See R.S., id.; T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued 

December 9, 2008).

10 Id.

11 See A.M., Docket No. 18-1033 (issued January 8, 2019); see also Bobbie F. Cowart, 55 ECAB 746 (2004).

12 See A.G., Docket No. 19-0113 (issued July 12, 2019); L.R., Docket No. 18-0400 (issued August 24, 2018).

13 See S.G., Docket No. 18-1076 (issued April 11, 2019); D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 

572, 575 (1988).

14 Supra note 12.
5

did not include relevant and pertinent new evidence not previously considered he is not entitled to 

a review of the merits based on the third requirement under section 10.606(b)(3).15

The Board accordingly finds that, as 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

On appeal appellant contends that the employing establishment failed to submit the 

required medical records to OWCP, and that OWCP never requested his complete medical record 

from his orthopedic physician, which would have established a work-related medical diagnosis.

However, as previously noted, the Board lacks jurisdiction over the merits of the case and appellant 

has not met any of the necessary regulatory requirements to warrant further 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).

 

15 20 C.F.R. § 10.606(b)(3)(iii); see D.P., Docket No. 17-0290 (issued May 14, 2018).

16 See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017); 

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)(2), OWCP will deny the application 

for reconsideration without reopening the case for a review on the merits).
6

ORDER

IT IS HEREBY ORDERED THAT the September 18, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 13, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board