United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Long Beach, CA, Employer

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Docket No. 19-0535

Issued: July 25, 2019

Appearances: Case Submitted on the Record

Sally F. LaMacchia, 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 January 10, 2019 appellant, through counsel, filed a timely appeal from an October 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 October 26, 2017, to the filing 

of this appeal, pursuant to the Federal Employees’ Compensation Act (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

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

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts 

are as follows.

On May 10, 1988 appellant, then a 49-year-old staff nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on May 8, 1988 she suffered low back pain while turning a patient in 

bed. She stopped work and with the exception of one day in October 1989, she has not worked 

since that time. OWCP initially accepted the claim for low back strain. On June 30, 1989 it 

terminated appellant’s wage-loss compensation and medical benefits as she was no longer disabled 

due to the accepted low back strain.

Following a March 26, 1990 reconsideration request, OWCP referred appellant to

Dr. David Geddes, a Board-certified psychiatrist, for a second opinion evaluation. Based on

Dr. Geddes’ July 20, 1990 report, on August 23, 1990 it accepted psychiatric factors affecting 

appellant’s physical condition, with dysthymia. Appellant was placed on the periodic 

compensation rolls effective August 26, 1990.

OWCP continued to develop the claim and, based on a July 3, 2008 second opinion 

evaluation performed by Dr. E. Richard Dorsey, a Board-certified psychiatrist, on April 3, 2009 it

reduced appellant’s compensation based on her ability to earn wages as a medical assistant. 

Appellant requested reconsideration and, by decisions dated July 15, 2009 and September 2, 2010, 

OWCP denied modification of its April 3, 2009 decision. She filed an appeal with the Board and,

by decision dated October 7, 2011, the Board reversed these decisions, finding that OWCP had 

not established that appellant’s wage-earning capacity was represented by the constructed position 

of medical assistant.3

On April 26, 2013 OWCP referred appellant to Dr. Steven M. Ma, a Board-certified 

orthopedic surgeon, and Dr. Ana M. Andia, a Board-certified psychiatrist for second opinion 

evaluations.

In a May 15, 2013 report, Dr. Ma determined that appellant had no objective residuals from 

her 1988 employment injury, and that her physical limitations were due to multiple nonworkrelated conditions. He opined that appellant could be gainfully employed at her usual employment 

duties.

 

2 Docket No. 92-1678 (issued June 17, 1993), Docket No. 11-0078 (issued October 7, 2011) and Docket No. 16-

1033 (issued June 22, 2017).

3 Docket No. 11-0078, id.
3

In a May 23, 2013 report, Dr. Andia indicated that, while appellant’s initial onset of 

depression appeared to be due to the low back injury, her current depressive symptoms had not 

been aggravated by her low back pain, but were caused by multiple stressors that she had 

encountered since her back injury. She listed a number of stressors and opined that appellant had 

a dysthymic disorder, which was currently caused by multiple nonwork-related aggravating 

stressors, and that she also had nonadaptive personality traits. Dr. Andia advised that appellant 

was not likely to improve, and could not return to work as a nurse due to her age and that her

personality disorders were a result of nature and nurture and not related to employment factors.

By decision dated October 8, 2013, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective October 20, 2013. It determined that the weight of the medical 

evidence, represented by the opinions of Dr. Ma and Dr. Andia, established that she no longer had 

residuals or disability due to her accepted employment-related conditions. By decision dated 

September 10, 2014, a hearing representative with OWCP’s Branch of Hearings and Review 

affirmed the October 8, 2013 decision.4

Following an October 1, 2014 reconsideration request, by decision dated February 13, 

2015, OWCP denied modification of its prior decision. Appellant, through counsel, again 

requested reconsideration on November 26, 2015. By decision dated February 24, 2016, OWCP

again denied modification.

Appellant appealed to the Board on April 20, 2016. By decision dated June 22, 2017, the 

Board found that OWCP met its burden of proof to terminate appellant’s wage-loss compensation 

and medical benefits effective October 20, 2013 and that appellant had not established continuing 

residuals or disability on or after that date.

5

Subsequent to the Board’s June 22, 2017 decision, on July 28, 2017 appellant, through 

counsel, requested reconsideration. She asserted that a conflict in medical opinion had been 

created between appellant’s attending psychiatrist and second opinion psychiatrist Dr. Andia, and 

maintained that appellant should be referred for an independent medical evaluation.

By decision dated October 26, 2017, OWCP denied modification of the Board’s June 22, 

2017 decision.

On July 30, 2018 appellant, through counsel, again requested reconsideration. She asserted 

that OWCP committed reversible error when it terminated benefits in 2013 based on a 2009 

medical opinion that was appropriated by Dr. Andia in 2013.

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

finding that the arguments raised were cumulative and repetitive and she did not submit new and 

relevant evidence.

 

4 Appellant had timely requested a hearing on October 31, 2013. A hearing was held on July 10, 2014. 

5 Docket No. 16-1033, supra note 2.
4

LEGAL PRECEDENT

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

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 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.8

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.9 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.10

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). 

Counsel’s assertions on reconsideration regarding the reliability of Dr. Andia’s opinion are 

duplicative of arguments made in the past, to both OWCP and the Board. 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.11 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). 

 

6

 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.607.

8

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

9 20 C.F.R. § 10.606(b)(3); see J.B., Docket No. 18-1531 (issued April 11, 2019). 

10 Id. at § 10.608.

11 J.B., supra note 9.
5

Furthermore, appellant submitted no new evidence in support of her request for 

reconsideration.12 Thus, she is also not entitled to a review of the merits of her claim based on the 

third above-noted requirement under section 10.606(b)(3).13

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

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: July 25, 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

 

12 Id.

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