United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

NATIONAL GUARD, Johnston, IA, Employer

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Docket No. 18-1022

Issued: October 24, 2018

Appearances: Case Submitted on the Record

Benjamin Hayek, Esq., for the appellant1

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 April 19, 2018 appellant, through counsel, filed a timely appeal from a January 9, 2018 

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

days has elapsed from the last merit decision, dated May 8, 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 to review the merits of the 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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On January 23, 2017 appellant, then a 55-year-old supervisory information technology 

specialist, filed a traumatic injury claim (Form CA-1) alleging that on January 10, 2017 he slipped 

on ice and fell down three stairs walking out of the front of his office building.3 He related that at 

the time of his fall he was wearing a back brace because he was recovering from two previous 

back surgeries. Appellant stopped work on January 11, 2017 and did not return. The employing 

establishment did not controvert the claim and completed and signed an authorization for 

examination and/or treatment (Form CA-16) on January 18, 2017.

In the attending physician’s portion of the January 18, 2017 authorization for examination 

and/or treatment (Form CA-16), Dr. David Hatfield, a Board-certified orthopedic surgeon, 

provided a history of appellant falling on ice at work on January 10, 2017. He found muscle 

soreness and spasm after the fall and advised that x-rays revealed abnormal findings. Dr. Hatfield 

also noted that appellant had undergone back surgery on April 26 and November 22 and 29, 2016. 

He checked a box marked “yes” that the condition was caused or aggravated by employment and 

found that appellant was totally disabled.

Dr. Hatfield, in a January 18, 2017 report, noted that appellant related that he was doing 

well following a November 2016 anterior posterior decompression and fusion at L5-S1 until he 

fell down approximately four stairs leaving work on January 10, 2017. He noted that x-rays did 

not show loosening or changes in the hardware. Dr. Hatfield opined that appellant might have 

“some disruption in healing” and listed work restrictions.

On January 19, 2017 Dr. Hatfield indicated that appellant should work part time for an 

additional four weeks due to his January 10, 2017 fall. He submitted form reports on February 14 

and 27, 2017 providing work restrictions. In a February 28, 2017 attending physician’s report, 

(Form CA-20), Dr. Hatfield diagnosed low back pain after lumbar surgery and checked a box 

marked “yes” that the condition was caused or aggravated by the described employment activity 

of appellant falling on ice on January 10, 2017. He provided as a rationale that appellant’s back 

pain increased instead of improving.4 In a February 28, 2017 chart note, Dr. Hatfield advised that 

appellant’s “back certainly got aggravated with this fall at work and we need to continue to allow 

time to heal.”

5

 

By decision dated May 8, 2017, OWCP denied appellant’s traumatic injury claim. It found 

that he had not submitted medical evidence sufficient to establish that he sustained a diagnosed 

 

3 Appellant submitted a statement from a witness who saw him fall. 

4 Dr. Hatfield provided similar findings in an April 5, 2017 CA-20 form. 

5 On April 3, 2017 Dr. Hatfield noted that appellant’s condition was improving though he had a “setback with his 

fall including the right thigh and groin symptoms.” 
3

condition as a result of the accepted work incident. OWCP determined that Dr. Hatfield diagnosed 

pain rather than a specific medical condition caused or aggravated by the accepted January 10, 

2017 employment incident.

On May 24, 2017 Dr. Hatfield advised that appellant underwent an anterior and posterior 

decompression and fusion at L5-S1 in November 2016. He noted that the circumstances of the 

January 10, 2017 fall were not in doubt and related, “As [appellant] was progressing well until the 

fall as described, would have not yet had a solid fusion, and had a distinct setback following the 

fall, I would relate his delay in healing and slowed progress to the fall as described.” 

In a July 19, 2017 report, Dr. Hatfield related that appellant had a previous back surgery in 

November 2016 and fell on ice on January 10, 2017. He ordered a bone growth stimulator after 

the fall due to the “potential disruption in fusion mass.” Dr. Hatfield related, “Given [appellant’s]

fall and potential delay in healing as above return to work was delayed in order to maximize 

healing.” 

Dr. Hatfield, on September 6, 2017, again discussed appellant’s history of back surgery 

and his January 10, 2017 fall on ice leaving work, noting that he spoke with him on the telephone 

the day of his injury. He evaluated appellant on January 18, 2017 for possible disruption of the 

hardware and fusion due to the fall. Dr. Hatfield advised:

“No gross radiographic changes were appreciated on imaging at that time. 

However, [appellant’s] instrumented lumbar fusion was distinctly aggravated.... 

Note original diagnosis of lumbar fusion was not altered by the fall. However, the 

fall did directly result in a marked setback and aggravation in his findings and 

progress. Thus, in an attempt to lessen the impact of such fall, a bone growth 

stimulator was ordered. Further, recovery period was extended with [a] lengthened 

time from of bracing and delayed return to work activities.” 

Dr. Hatfield questioned the denial of appellant’s claim given the “magnitude of his surgery 

and the magnitude of his fall....”

Appellant, on October 24, 2017, requested reconsideration. He related that he had worked 

with his supervisor and his physician to have his claim approved. 

By decision dated January 9, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim pursuant to section 8128(a). It found that he had not raised a relevant 

legal argument nor showed that OWCP erroneously applied or interpreted a specific point of law.

Further, OWCP found that the evidence submitted “is cumulative and substantially similar to 

evidence already contained in the case record.” It explained that Dr. Hatfield’s reports did not 

contain a diagnosis of a medical condition causally related to the employment incident. 

On appeal, appellant contends that it is undisputed that he had spinal surgeries on 

November 22 and 29, 2016 and that his recovery from the surgery was aggravated by his 

January 10, 2017 fall. He questions why OWCP has not accepted the medical evidence from

Dr. Hatfield, noting that OWCP appears to require a claimant to have a new diagnosis rather than 

showing an exacerbation of a preexisting condition.
4

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.6

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.7

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

of OWCP’s decision for which review is sought.8 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.9 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.10

ANALYSIS

The Board finds that appellant has not established that OWCP erroneously applied or 

interpreted a specific point of law or raised a relevant legal argument not previously considered. 

Appellant did, however, submit pertinent new and relevant evidence not previously considered. 

The Board thus finds that OWCP improperly denied his request for reconsideration of the merits 

of his claim. 

In support of his request for reconsideration, appellant submitted new medical reports from

Dr. Hatfield. On May 24, 2017 Dr. Hatfield advised that appellant had a delay in healing due to 

his January 10, 2017 fall, noting that he had undergone a lumbar fusion in November 2016. In a 

report dated July 19, 2017, he again noted that the fall had potentially delayed appellant’s healing 

and advised that he ordered a bone growth stimulator to avoid a possible fusion mass disruption. 

On September 6, 2017 Dr. Hatfield related that appellant had sustained an aggravation of his 

lumbar fusion due to his fall which delayed his recovery and resumption of employment. He

provided a diagnosis of an aggravation of a healing lumbar fusion causally related to the accepted 

 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

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). Id. at Chapter 2.1602.4b.

9

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

10 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
5

January 10, 2017 employment incident.11 Prior to the submission of the September 6, 2017 report, 

appellant had not submitted medical evidence providing a definite diagnosis. Dr. Hatfield’s report 

directly addressed the basis upon which OWCP denied appellant’s claim as it provided a diagnosed 

condition and discussed its relationship to the employment injury.12

The Board thus finds that OWCP improperly refused to reopen appellant’s case for further 

review of the merits, as the evidence he submitted in support of his reconsideration request is 

relevant and pertinent new evidence not previously considered.13 Reopening a claim for merit 

review does not require a claimant to submit all evidence that may be necessary to discharge his 

burden of proof.14 If OWCP should determine that the new evidence submitted lacks probative 

value, it may deny modification of the prior decision, but only after the case has been reviewed on 

the merits.15

As appellant has submitted pertinent new and relevant evidence not previously considered 

by OWCP, he is entitled to a review of the merits of his claim under section 10.606(b)(3) of 

OWCP’s regulations.16 The case will be remanded to OWCP to conduct an appropriate merit 

review of the claim. Following this and such other development as deemed necessary, it shall 

issue an appropriate merit decision on the claim.17

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

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

 

11 The July 19 and September 6, 2017 reports from Dr. Hatfield indicated that they were “[c]omposed by the 

[physician], signed by his secretary to expedite mailing.” The reports are not signed. See Y.S., Docket No. 16-0882 

(issued August 19, 2016) in which the Board found that reports printed on a physician’s letterhead and which contained 

a signature line with his printed name were sufficient to constitute competent medical evidence. 

12 See M.C., Docket No. 17-1983 (issued August 17, 2018).

13 Id. at § 10.606(b)(3); see also G.G., Docket No. 17-1666 (issued August 21, 2018).

14 See S.H., Docket No. 17-1101 (issued August 3, 2017); Helen E. Tschantz, 39 ECAB 1382 (1988). 

15 See Dennis J. Lasanen, 41 ECAB 933 (1990).

16 See L.K., Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued July 6, 2016).

17 Although the Board does not have jurisdiction over the merits of appellant’s claim, it should be noted that 

appellant submitted a Form CA-16 executed by the employing establishment on January 18, 2017. Where an 

employing establishment properly executes a Form CA-16 authorizing medical treatment related to a claim for a work 

injury, the form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of 

the examination/treatment regardless of the action taken on the claim. See N.B., Docket No. 17-0927 (issued April 18, 

2018); Tracy P.Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is 

limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).
6

ORDER

IT IS HEREBY ORDERED THAT the January 9, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: October 24, 2018

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