United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.O., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Wilkes-Barre, PA, Employer

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Docket No. 18-0611

Issued: August 3, 2018

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 January 30, 2018 appellant filed a timely appeal from an October 16, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 The last merit decision in 

this case was a September 7, 2016 Board decision.2 As there was no merit decision issued by 

OWCP within 180 days of the filing of this appeal, the Board lacks jurisdiction to review the merits 

of his claim pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3.

 

1 The Board notes that appellant submitted additional evidence after OWCP rendered its October 16, 2017 decision.

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

2 The decision of the Board became final after 30 days of issuance, and is not subject to further review. 20 C.F.R. 

§ 501.6(d).

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

FACTUAL HISTORY

The case has previously been before the Board.4 The facts of the case as presented in the 

Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On July 26, 2010 appellant, then a 57-year-old general engineer, filed an occupational 

disease claim (Form CA-2) alleging that he sustained an aortic aneurysm due to chronically high 

blood pressure caused by stress at work. He did not stop work.

In a report dated August 17, 2010, Dr. David A. Dalessandro, a Board-certified internist, 

diagnosed a thoracic aortic aneurysm possibly caused by latent hypertension. He related that work 

stress may have increased appellant’s risk for developing an aortic aneurysm. 

By decision dated January 20, 2011, OWCP denied appellant’s claim, finding that he had 

not established a medical condition due to a compensable work factor. 

On February 18, 2011 Dr. Dalessandro opined that exposure to stress “could have caused 

fluctuations in [appellant’s] blood pressure resulting in a more rapid expansion of his aneurysm.”

5

 

The Equal Employment Opportunity Commission (EEOC), on June 13, 2011, issued an 

order finding that the employing establishment discriminated against appellant due to his age and 

created a hostile work environment from October 2008 to April 2009 in retaliation for his EEOC

activity. 

An OWCP hearing representative, by decision dated July 20, 2011, set aside the 

January 20, 2011 decision after finding that OWCP failed to determine the compensability of the 

work factors identified in appellant’s EEOC complaint as causing his condition. 

By decision dated November 18, 2011, OWCP again denied appellant’s stress-related 

occupational disease claim. It found that he had established age discrimination, harassment, and 

reprisal based on the June 13, 2011 EEOC order as compensable work factors. OWCP determined, 

however, that the medical evidence of record was insufficient to show that appellant sustained a 

diagnosed condition due to the accepted employment factors.

Appellant requested a telephone hearing before an OWCP hearing representative. By

decision dated January 31, 2012, an OWCP hearing representative set aside the November 8, 2011 

decision. She found that OWCP did not sufficiently identify the compensable work factors. The 

hearing representative further determined that the medical evidence from Dr. Dalessandro was 

 

4 Docket No. 16-0391 (issued September 7, 2016).

5 On March 2, 2012 Dr. Dalessandro opined that stress and a possible hostile work environment may negatively 

impact appellant’s blood pressure and thus his cardiac condition and thoracic aortic aneurysm. 
3

sufficient to warrant further development and instructed OWCP to refer appellant for a second 

opinion examination. 

Dr. Basil M. Rudusky, a Board-certified internist, conducted a second opinion examination 

on August 2, 2012. He opined that work stress did not cause appellant’s aortic aneurysm and 

found no relationship between his employment and the diagnosed condition of hypertension, 

hyperlipidemia, and arteriosclerotic cardiovascular disease.

Based on Dr. Rudusky’s opinion, by decision dated December 19, 2012, OWCP denied 

appellant’s claim after finding that the weight of the medical evidence failed to establish that he 

sustained an aortic aneurysm due to the compensable employment factors. 

Appellant again requested a telephone hearing before OWCP’s hearing representative. By 

decision dated July 23, 2013, the hearing representative set aside the December 19, 2012 after 

finding that a conflict existed between Dr. Dalessandro and Dr. Rudusky regarding the cause of 

his aortic aneurysm and its relationship to his employment.

OWCP referred appellant to Dr. Manoj Khandelwal, a Board-certified internist, for an 

impartial medical examination. In a report dated November 22, 2013, Dr. Khandelwal indicated 

that appellant had a history of hypertension, hyperlipidemia, and cigar smoking. He observed that 

appellant’s thoracic aortic aneurysm was found incidentally during a chest x-ray, and that the 

condition usually occurred in males with hypertension between 60 and 70, rarely caused issues, 

and occurred more frequently in those who were obese, sedentary, or African Americans. 

Dr. Khandelwal opined that there was no definite evidence linking stress to hypertension and that 

the data on the subject was not conclusive or credible. He concluded that work factors did not 

cause or aggravate appellant’s hypertension or the development of his aortic aneurysm. 

By decision dated September 19, 2014, OWCP denied appellant’s claim, finding that

Dr. Khandelwal’s opinion represented the special weight of the evidence and established that he 

did not sustain a medical condition causally related to compensable work factors.6 

Appellant again requested a telephone hearing before an OWCP hearing representative. 

By decision dated June 25, 2015, the hearing representative affirmed the September 19, 2014 

decision, finding that Dr. Khandelwal’s opinion was rationalized and entitled to the special weight 

of the evidence. 

Appellant appealed to the Board. By decision dated September 7, 2016, the Board affirmed 

the June 25, 2015 decision.7 The Board found that the opinion of Dr. Khandelwal represented the 

weight of the evidence as it was detailed, well rationalized, and based on a proper factual 

background. The Board determined that OWCP provided him with an accurate statement of 

accepted facts and work history. The Board noted that Dr. Khandelwal discussed all the risk 

factors for a thoracic aneurysm and identified those exhibited by appellant, found that the medical 

 

6 OWCP issued decisions on August 25 and 26, 2014 addressed to appellant, but referencing in part another 

appellant. It issued an amended decision on September 19, 2014.

7 See supra note 4.
4

literature linking stress to a thoracic aortic aneurysm was inconclusive and lacked credibility, and 

concluded that his condition was unrelated to work stress.

In a progress report dated June 19, 2017, Dr. Dalessandro discussed appellant’s history of 

hypertension, dyslipidemia, a stable thoracic aortic aneurysm, and moderate aortic insufficiency. 

He related: “According to [appellant], in the past [he] has been exposed to a very stressful and 

sometimes hostile work environment. It has been well documented that emotional stress is 

associated with [an] increased risk of cardiovascular disease when compared to other risk factors 

such as smoking, hypertension, and/or diabetes mellitus.” Dr. Dalessandro concluded that it was 

“certainly possible that [appellant’s] stressful work environment could have contributed to some 

undiagnosed hypertension in the past which could then have contributed to [his] development of 

his thoracic aortic aneurysm.” He enclosed a page of references to medical articles. 

On July 18, 2017 appellant requested reconsideration. He maintained that Dr. Khandelwal 

failed to properly consider the medical literature supporting causal relationship between stress and 

the development of thoracic aortic aneurysms. Appellant noted that Dr. Dalessandro found that 

stress was associated more than other risk factors with the occurrence of cardiovascular disease, 

in contrast to the finding of Dr. Khandelwal, and referenced medical literature in support of his 

finding. He maintained that the proper issue was whether work factors accelerated or aggravated 

his aortic aneurysm, noting that the medical evidence established that his aneurysm grew in size 

at the time he was exposed to a hostile work environment. Appellant indicated that

Dr. Dalessandro recommended that appellant take time off work due to the negative effect of stress 

on his aneurysm, and that the request was approved by the employing establishment under the 

Family and Medical Leave Act (FMLA).

Appellant submitted a December 16, 2016 request for 12 weeks of leave under the FMLA 

due to his thoracic aortic aneurysms. On December 16, 2016 Dr. Dalessandro completed a 

certification of health care provider for employee’s serious health condition FMLA form. He

found that work stress could worsen appellant’s blood pressure affecting appellant thoracic aortic 

aneurysm and that he required medical leave to control his blood pressure.

By decision dated October 16, 2017, OWCP denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). It found that he had not raised a relevant legal argument or submitted 

new and relevant evidence sufficient to warrant reopening his case for further merit review. 

OWCP noted that Dr. Dalessandro’s June 19, 2017 report was similar to prior reports of record.

On appeal appellant asserts that the report of Dr. Dalessandro constitutes relevant and 

probative new evidence and questions why OWCP failed to review the merits of his case. He 

contends that the impartial medical examiner failed to review the medical literature or the 

established compensable work factors. Appellant maintains that the issue should be whether stress 

accelerated or aggravated his aneurysm rather than the etiology of the aneurysm. He notes that 

the employing establishment approved his FMLA request to avoid work stress due to his medical 

condition. 
5

LEGAL PRECEDENT

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

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.8

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (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

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP decision for which review is sought.10 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.11 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.12

ANALYSIS

The most recent decision on the merits of appellant’s claim was the Board’s September 7, 

2016 decision. OWCP received his request for reconsideration on July 18, 2017. Appellant’s 

request for reconsideration was timely filed because it was received within one year of the last 

merit decision issued September 7, 2016.13

The issue presented on appeal is whether appellant’s July 18, 2017 request for 

reconsideration met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to 

reopen the case for further review of the merits of the claim. 

The Board finds that appellant 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. 

On reconsideration, appellant argued that the independent medical examiner,

Dr. Khandelwal failed to properly consider the medical literature finding a connection between 

stress and thoracic aortic aneurysms. He additionally contended that OWCP failed to address the 

 

8 5 U.S.C. § 8128(a).

9 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

10 Id. at § 10.607(a).

11 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

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

13 Although OWCP’s last merit decision was dated June 25, 2015, the one-year period for filing a timely request 

for reconsideration accompanies any subsequent merit decision, including any merit decision issued by the Board. 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).
6

relevant issue of whether work factors aggravated or accelerated his aortic aneurysm and instead 

considered whether employment factors directly caused the condition. The Board, however, 

previously addressed these arguments in its September 7, 2016 decision. Findings made in a prior 

Board decision are res judicata absent any further review by OWCP.14

Appellant further contended that Dr. Dalessandro, in his June 19, 2017 report, opined that 

stress contributed to cardiovascular disease over other risk factors and supported his finding with 

references to medical literature. He also asserted that Dr. Dalessandro found that he should take 

time off from work due to the adverse impact of stress on his thoracic aortic aneurysm and that the 

employing establishment approved the request for leave. The underlying issue, however, is 

whether the medical evidence is sufficient to establish that appellant sustained high blood pressure 

and an aortic aneurysm causally related to the accepted work factors. Appellant’s lay opinion 

regarding his condition is not relevant to the medical issue in this case, which can only be resolved 

through the submission of probative medical evidence from a physician.15 He, therefore, is not 

entitled to review of the merits of his claim based on the first and second above-noted requirements 

of section 10.606(b)(3).

Appellant further failed to submit any relevant and pertinent new evidence with his request 

for reconsideration. In a December 16, 2016 FMLA request form, Dr. Dalessandro advised that 

appellant should be off work due to the effect of work stress on his high blood pressure and its 

negative impact on his aortic aneurysm. He did not, however, address the relevant issue of whether 

appellant experienced high blood pressure worsening his aortic aneurysm as a result of 

compensable employment factors. Evidence that does not address the particular issue involved 

does not warrant reopening a case for merit review.16

In a June 19, 2017 report, Dr. Dalessandro advised that medical literature supported that 

stress increased the risk of cardiovascular disease as opposed to risk factors such as hypertension, 

diabetes mellitus, and smoking. He indicated that appellant related that he was exposed to stress 

and a hostile environment at work and opined that it was possible that work stress could have 

contributed to hypertension and thus to the development of the thoracic aortic aneurysm. OWCP, 

however, previously reviewed reports from Dr. Dalessandro finding that stress may have worsened 

appellant’s high blood pressure and thoracic aortic aneurysm. The Board has held that evidence 

which is cumulative of material already in the case record is insufficient to warrant reopening a 

claim for merit review.17 Thus, appellant has not submitted relevant and pertinent new evidence 

not previously considered by OWCP.

On appeal appellant maintains that the newly submitted report from Dr. Dalessandro 

constitutes new and relevant medical evidence, that Dr. Khandelwal failed to properly review the 

medical literature and compensable work factors, and that the issue was whether stress aggravated 

or accelerated appellant’s aneurysm. As discussed, however, these contentions have either already 

 

14 See H.G., Docket No. 16-1191 (issued November 25, 2016); R.T., Docket No. 16-0543 (issued May 20, 2013).

15 See C.N., Docket No. 17-1475 (issued May 23, 2018).

16 J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

17 See L.W., Docket No. 17-1171 (issued May 18, 2018).
7

been addressed by the Board and are thus res judicata absent further review by OWCP or are not 

pertinent to the underlying medical issue.18

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 evidence not previously considered. 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). 

ORDER

IT IS HEREBY ORDERED THAT the October 16, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 3, 2018

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

 

18 See supra notes 13 and 14.