United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Ann Arbor, MI, Employer

__________________________________________

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Docket No. 18-1711

Issued: May 28, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 11, 2018 appellant, through counsel, filed a timely appeal from an 

August 23, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from the last merit decision dated November 29, 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 her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY

On October 22, 2009 appellant, then a 53-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on October 14, 2009 she sprained her back when moving a patient from 

a wheel chair to the bed while in the performance of duty. She stopped work on October 14, 2009

and returned on October 20, 2009, with restrictions of no lifting patients, no lifting more than 20 

pounds, and no pushing. Appellant again stopped work on October 26, 2009. On November 3, 

2009 the employing establishment terminated her employment. By decision dated November 17, 

2009, OWCP accepted the claim for sacroiliitis on the right. It paid appellant wage-loss 

compensation on the supplemental rolls as of November 4, 2009 and on the periodic rolls as of

January 17, 2010. On February 16, 2010 OWCP expanded acceptance of the claim to include right 

L5 lumbosacral radiculitis, and on April 28, 2010 it further expanded the acceptance of the claim 

to include facet syndrome.

In a report dated March 26, 2015, Dr. Angel J. Rigueras, Board-certified in physical 

medicine and rehabilitation, examined appellant and diagnosed arthropathy of the lumbar facet 

joint, facet joint pain, low back pain, sacroiliac joint pain, back pain with radiculopathy, left lateral 

femoral cutaneous neuropathy, and chronic pain syndrome. He opined that she would be disabled 

from work for the next four months due to her chronic pain and physical restrictions. 

By letter dated July 22, 2015, OWCP referred appellant to Dr. Emmanuel Obianwu, a 

Board-certified orthopedic surgeon, for a second opinion examination to determine the status of 

her accepted employment conditions, work tolerance limitations, and current treatment 

recommendations.

In a report dated September 16, 2015, Dr. Obianwu noted appellant’s history of injury, 

treatment, and his examination findings. He diagnosed degenerative lumbar disc disease, diffuse 

disc bulge at L4-5 and obesity. Dr. Obianwu noted that while sacroiliitis was an accepted 

condition, his examination did not support it. He also noted that at the time of the incident 

appellant weighed close to 300 pounds and he doubted that the October 9, 2009 incident at work 

precipitated any significant pathology in the lower back. Dr. Obianwu explained that she had 

nonwork-related conditions that contributed to her persistent back pain, however, her facet 

syndrome lingered and contributed to some disability in her lower back. He opined that appellant

was not capable of performing her regular duties and that her disability was attributable to

persistence of facet syndrome. Dr. Obianwu recommended weight loss to alleviate her symptoms. 

He completed a work capacity evaluation (Form OWCP 5c) in which he related that appellant 

could work eight hours a day with a 40-pound pushing, pulling restriction, and a 25-pound lifting 

restriction. 

OWCP forwarded a copy of Dr. Obianwu’s report to appellant’s treating physician, Dr. Ed

Atty, Board-certified in pain medicine, physical medicine, and rehabilitation, on October 9, 2015 

for review and comment. 
3

In a November 4, 2015, response, Dr. Atty opined that appellant’s symptoms were not

solely related to obesity or age and that her condition was related to her employment injury. He

indicated that she had facet syndrome and multifactorial lower back pain due to sacroiliac joint 

pain syndrome, lumbar facet joint pain syndrome, right L5 radiculopathy, and chronic pain 

syndrome due to the work injury. Dr. Atty completed a Form OWCP-5c indicating that appellant 

was totally disabled and would not be able to return to work in her lifetime. 

On February 1, 2016 OWCP referred appellant along with a statement of accepted facts 

(SOAF) and the medical record to Dr. Stanley Lee, a Board-certified orthopedic surgeon, for an 

impartial medical evaluation to resolve the conflict in opinion between Dr. Atty, the treating 

physician, and Dr. Obianwu, the second opinion physician, regarding the degree of disability and 

the physical limitations imposed by any residuals from the accepted injury. 

In a report dated March 3, 2016, Dr. Lee noted appellant’s history of injury and treatment 

and provided examination findings. He opined that she had fully recovered from the injuries 

sustained in the work-related incident and that there was no need for any further diagnostic testing, 

treatment, or medical restrictions related to employment injury. 

In a letter dated July 12, 2016, OWCP requested clarification from Dr. Lee regarding 

appellant’s accepted conditions.

In an August 16, 2016 supplemental report, Dr. Lee repeated his review of diagnostic tests 

and opined that appellant’s diagnoses of sacroiliitis and facet syndrome were based upon 

subjective complaints, not objective findings, and that she did not have any loss of function that 

would require a restriction of her activities. He opined that she could return to unrestricted work.

On November 30, 2016 OWCP determined that a conflict of medical opinion existed 

between Dr. Atty, the treating physician, and Dr. Lee, the impartial medical examiner, regarding

whether appellant continued to suffer from residuals of the accepted condition of facet syndrome. 

It referred her to Dr. Clifford Buchman, a Board-certified orthopedic surgeon, to resolve the 

conflict.

In a January 6, 2017 report, Dr. Buchman noted that he reviewed the SOAF, the medical 

evidence, and examined appellant. He determined that there were no objective findings to support 

residuals of sacroiliitis, right L5 radiculopathy, or facet syndrome. Dr. Buchman opined that the 

sprain/strain of the lumbar spine had resolved, there was no evidence of sacroiliitis or facet 

syndrome at this time, and appellant had exogenous obesity. He explained that, at some point, 

appellant had a sprain of the lumbar spine, however, there was no evidence of radiculopathy and 

the diagnostic findings did not correlate with the clinical examinations. Dr. Buchman opined that 

her obesity was not work-related and that she was otherwise capable of working as a staff nurse 

without restriction. 

On March 16, 2017 OWCP advised appellant that it proposed to terminate her wage-loss 

compensation and medical benefits because she no longer had residuals of her October 14, 2009 

employment injury. It relied upon the report of the referee physician, Dr. Buchman, who 

concluded that the residuals related to her accepted work-related medical conditions had ceased 

and that she was no longer disabled from work as a result of the accepted injury or illness. OWCP
4

afforded appellant 30 days to submit additional evidence and argument if she disagreed with the 

proposed termination.

In a letter dated April 6, 2017, Dr. Atty explained that he was providing a “rebuttal letter”

expressing his disagreement with the opinions of Dr. Obianwu, the second opinion physician, and 

the impartial medical examiners, Dr. Lee and Dr. Buchman. He opined that appellant would never 

recover to the point that she would be productive or suitable for employment. Dr. Atty discussed 

the medical record, her diagnostic testing and that her lower back pain was a chronic condition 

which was managed by a comprehensive program. 

On May 1, 2017 OWCP terminated appellant’s wage-loss compensation and medical 

benefits, effective that same date, finding that she no longer had residuals or disability causally 

related to the employment injury of October 14, 2009.

Appellant subsequently requested a telephonic hearing, held on October 2, 2017. 

By decision dated November 29, 2017, OWCP’s hearing representative affirmed the 

May 1, 2017 decision. She found that the report of Dr. Buchanan was sufficient to carry the weight

of the medical evidence and affirmed the termination.

On March 19, 2018 appellant, through counsel, requested reconsideration. Counsel

submitted additional evidence to include a new report from Dr. Atty. 

In a January 2, 2018 report, Dr. Atty noted that he saw appellant for follow up of her 

chronic lower back pain related to her work injury. He related that she indicated that OWCP found 

that her lower back pain was only due to muscle strain from her work injury which should have 

healed. Dr. Atty referred to his May 1, 2017 letter and distinguished his diagnoses related to 

appellant’s employment injury.3 He advised that he documented her objective findings and history 

on examination, as well as her diagnostic studies, such as the magnetic resonance imaging (MRI) 

scan of the lumbar spine and electromyography scan findings, response to fluoroscopic-guided 

interventional spine injections, and that she required further continuous treatment for lower back 

pain that was chronic in nature. 

OWCP also received a December 8, 2009 MRI scan of the lumbar spine without contrast, 

read by Dr. Gaurang Shah, a Board-certified internist. 

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

of the merits of her claim under 5 U.S.C. § 8128(a), finding that she did not submit new and 

relevant evidence or legal argument sufficient to warrant reopening the merits of her claim. It

found that the evidence was cumulative and substantially similar to evidence or documentation 

previously considered. OWCP explained that the new report from Dr. Atty dated January 2, 2018, 

was insufficient because he offered no new opinion and only referred to his previously considered 

report.

 

3 While Dr. Atty referred to a letter dated May 1, 2017, this appears to be a typographical error as his prior report 

was dated April 6, 2017.
5

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: (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.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

ANALYSIS

The Board finds that OWCP properly denied appellant’s timely request for reconsideration 

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

The Board notes that the underlying issue in this case is whether appellant had continuing 

residuals or disability after May 1, 2017 due to the accepted October 14, 2009 employment injury.

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

previously considered.9 Counsel’s March 19, 2018 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. Thus, appellant is not entitled to a review of 

the merits of her case based on the first and second above-noted requirements under section 

10.606(b)(3).

A claimant may be entitled to a merit review by submitting relevant and pertinent new 

evidence, but the Board finds that appellant did not submit any such evidence in this case.10 In 

 

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). 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. Chapter 2.1602.4b.

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608.

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

10 Supra note 7; see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-1569 (issued 

December 9, 2008).
6

support of her reconsideration request, counsel submitted a new report from Dr. Atty dated 

January 2, 2018. While this report was not previously considered by OWCP, the Board finds that 

it is substantially similar and duplicative of evidence previously considered and reviewed by 

OWCP. Dr. Atty merely referred to his prior report dated April 6, 2017, which was addressed in 

the May 1, 2017 decision. The Board has held that evidence or argument that repeats or duplicates 

evidence previously of record has no evidentiary value and does not constitute a basis for 

reopening a case.11

OWCP also received a December 8, 2009 MRI scan of the lumbar spine, read by Dr. Shah. 

However, this report does not offer any opinion regarding whether appellant had continuing 

residuals or disability after May 1, 2017, due to the accepted October 14, 2009 employment injury. 

The Board has held that the submission of evidence or argument which does not address the 

particular issue involved does not constitute a basis for reopening a case.12

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review.

On appeal, counsel argues that the August 23, 2018 nonmerit decision was contrary to fact 

and law. For the reasons stated above, 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).

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). 

 

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

12 See N.B., Docket No. 17-0927 (issued April 18, 2018); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
7

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: May 28, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board