United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Plainfield, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 20-1317

Issued: February 24, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 23, 2020 appellant, through counsel, filed a timely appeal from a May 19, 2020 

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

days has elapsed from OWCP’s last merit decision, dated September 5, 2019, 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.

 

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

This case has previously been before the Board.3 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.

OWCP accepted that on October 5, 2009 appellant, then a 34-year-old letter carrier, 

sustained a medial meniscus tear of her left knee due to a fall down stairs while in the performance 

of duty. It assigned OWCP File No. xxxxxx003. Appellant stopped work on October 5, 2009 and 

OWCP paid her wage-loss compensation on the supplemental rolls for disability commencing 

November 20, 2009. On January 12, 2010 Dr. Jeffrey F. Augustin, an attending Board-certified 

orthopedic surgeon, performed OWCP-authorized left knee arthroscopy with lateral meniscectomy 

and excision of plica.4

By decision dated June 17, 2010, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective June 17, 2010 because she ceased to have residuals/disability from

her accepted October 5, 2009 employment injury as of that date. By decision dated November 17, 

2010, it modified its June 17, 2010 termination decision to reflect that only her wage-loss

compensation was terminated, effective June 17, 2010.

On June 21, 2012 appellant filed a traumatic injury claim (Form CA-1) alleging that on 

June 20, 2012 she injured her left knee when she stepped down off a curb while in the performance 

of duty. OWCP assigned OWCP File No. xxxxxx402.5

By decision dated August 9, 2012, OWCP denied appellant’s claim for a June 20, 2012

traumatic injury under OWCP File No. xxxxxx402 because she failed to establish the medical

component of fact of injury.

On October 22, 2012 Dr. Allen Glushakow, an attending Board-certified orthopedic

surgeon, performed left knee surgery, including abrasion arthroplasty, chondroplasty, arthrotomy, 

and partial lateral meniscectomy. He noted that during the surgery he observed an effusion and 

 

3 Docket No. 18-1529 (issued April 19, 2019); Docket No. 17-1319 (issued December 7, 2017); Docket Nos. 14-

1187; 14-1215 (issued February 2, 2015).

4 OWCP paid appellant wage-loss compensation on the periodic rolls commencing March 14, 2010.

5

In April 2013 OWCP administratively combined OWCP File Nos. xxxxxx402 and xxxxxx003, with the latter 

designated as the master file.
3

osteochondral fracture of the medial femoral condyle, as well as a partial tear of the lateral 

meniscus. The surgery was not authorized by OWCP.6

By decision dated February 20, 2013, a representative of OWCP’s Branch of Hearings and

Review modified OWCP’s August 9, 2012 decision to accept the condition of left knee sprain as

having been sustained on June 20, 2012 “with entitlement to medical benefits being limited to the 

claimant’s emergency room visit on June 20, 2012.” OWCP’s hearing representative noted, “The 

district [office’s] denial of the claim for any other left knee condition and for benefits subsequent 

to June 20, 2012 is affirmed.”

By decision dated April 30, 2013, OWCP advised appellant that her claim for a traumatic

injury on June 20, 2012 was formally accepted for a left knee sprain. It indicated that, per the

February 20, 2013 decision of OWCP’s hearing representative, authorization for medical

treatment was limited to treatment at the emergency room on June 20, 2012.

On May 10, 2013 appellant filed claims for compensation (Form CA-7) for the periods

June 21 through October 21, 2012 and October 22, 2012 through March 18, 2013.7 The first

period of compensation was filed under OWCP File No. xxxxxx402 and the latter period under

OWCP File No. xxxxxx003. With respect to the period June 21 through October 21, 2012, OWCP

advised appellant by letter dated May 13, 2013 that she should pursue her appeal rights associated

with the February 20, 2013 decision.

In an informational letter dated June 10, 2013, OWCP advised appellant that her claim for

compensation for the period October 22, 2012 to March 18, 2013 was not payable. It explained 

that, in its November 17, 2010 decision, it had terminated her wage-loss compensation effective 

June 17, 2010.

In a July 17, 2013 letter counsel, on behalf of appellant, requested authorization for her 

October 22, 2012 left knee surgery and compensation for any periods of disability related to her 

accepted work-related left knee condition. He noted, “[Appellant] underwent surgery by

Dr. Glushakow under the above file in October 2012. Clearly, this is new evidence and was not

available on June 17, 2010. Appellant is now disabled as a result of the effects of the surgery.”

8

By decision dated November 14, 2013, OWCP denied appellant’s July 17, 2013

reconsideration request, finding that it was untimely filed with respect to the November 17, 2010

decision and failed to demonstrate clear evidence of error. It indicated that the June 10, 2013 

“decision” for which she was considered to have requested reconsideration was an informational

letter rather than a final decision of OWCP, and therefore she could not request reconsideration of 

 

6 The case record contains an August 24, 2012 magnetic resonance imaging (MRI) scan of appellant’s left knee 

which contains an impression of small joint effusion, moderate-sized popliteal cyst, and no evidence of meniscal tear. 

7 The employing establishment indicated on the claim forms that appellant’s employment had been terminated, 

effective November 27, 2012, due to the expiration of her appointment.

8 Counsel also noted that he wished to appeal June 17, 2010 and June 10, 2013 decisions of OWCP.
4

that decision. OWCP further noted, “Your attorney does not argue that the decision dated

November 17, 2010 was incorrect when it was issued.”

On January 10, 2014 appellant filed a notice of recurrence (Form CA-2a) under OWCP 

File No. xxxxxx402 for disability from work commencing June 21, 2012 due to her work-related

left knee condition. On January 30, 2014 she filed a Form CA-2a under OWCP File No.

xxxxxx003 for a recurrence of disability commencing October 22, 2012 due to her work-related

left knee condition.

On March 5, 2014 appellant, through counsel requested reconsideration. In the attached 

June 25, 2013 report, Dr. Glushakow asserted that her need for repeat left knee surgery on 

October 22, 2012 was due to her June 20, 2012 employment injury rather than an earlier injury. 

He indicated that appellant had fully recovered from the January 12, 2010 surgery and that prior 

operative reports did not note an osteochondral fracture and did not note synovitis. Dr. Glushakow

concluded, “Therefore, the combination of these findings point to the cause of [appellant’s] surgery 

being the incident of June 20, 2012.”

By decision dated March 19, 2014, OWCP denied appellant’s March 5, 2014 request for

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

Appellant appealed to the Board, and in a February 2, 2015 decision,9the Board set aside 

OWCP’s November 14, 2013 and March 19, 2014 decisions, and remanded the case to OWCP for 

further development. The Board found that OWCP improperly determined that counsel’s 

communications on behalf of appellant constituted a request for reconsideration of its

November 17, 2010 decision. OWCP determined that counsel expressly sought compensation for 

appellant’s October 22, 2012 left knee surgery and any periods of disability related to her accepted 

left knee conditions. Consequently, the Board found that OWCP improperly analyzed her case 

and wrongly determined, in its November 14, 2013 and March 19, 2014 decisions, that she filed 

an untimely request for reconsideration and failed to demonstrate clear evidence of error in its 

November 17, 2010 decision. The Board further found that appellant had an outstanding claim 

related to her October 22, 2012 left knee surgery and any periods of disability arising after 

June 21, 2012. The Board remanded the case to OWCP for consideration of that claim and directed 

OWCP to issue an appropriate decision after considering all the relevant documents relating to 

both her accepted October 5, 2009 and June 20, 2012 work-related left knee injuries.

On remand OWCP issued a June 11, 2015 decision denying appellant’s request for

authorization of her October 22, 2012 surgery and her claim for a recurrence of disability

commencing June 21, 2012.

Appellant, through counsel, requested a telephonic hearing before a representative of

OWCP’s Branch of Hearings and Review. Following a preliminary review, by decision dated 

January 8, 2016, OWCP’s hearing representative set aside OWCP’s June 11, 2015 decision, 

finding that the case should be forwarded to an OWCP medical adviser to address Dr. Glushakow’s 

medical opinions regarding the October 22, 2012 surgery and to discuss whether there were 

additional medical conditions causally related to the June 20, 2012 employment injury. OWCP’s 

 

9 Supra note 3.
5

hearing representative indicated that OWCP’s medical adviser should be asked whether referral to 

a second opinion examiner would be appropriate. She noted that, after any additional development 

deemed necessary, OWCP should issue a de novo decision as to whether appellant was disabled 

from work commencing June 21, 2012 and whether the left knee surgery on October 22, 2012 was 

causally related to the June 20, 2012 work event.

On remand OWCP referred appellant on October 13, 2016 for a second opinion 

examination to Dr. Timothy Henderson, a Board-certified orthopedic surgeon. It requested that 

he evaluate whether the October 22, 2012 surgery was necessitated by a work-related condition 

and whether she had work-related disability on or after June 21, 2012. In a November 10, 2016 

report, Dr. Henderson opined that the October 22, 2012 surgery was not secondary to the 

October 5, 2009 employment injury. He noted that appellant appeared to have sustained a new 

injury to her left meniscus, but that this injury would not be a work injury. Dr. Henderson posited 

that she had partial disability related to nonwork-related degenerative changes.

On November 22, 2016 OWCP requested that Dr. Henderson clarify whether it should

update the accepted conditions to include aggravation of osteoarthritis in the left knee. In a

December 2, 2016 report, Dr. Henderson advised that the accepted conditions should not be 

updated to include aggravation of left knee osteoarthritis.

By decision dated December 19, 2016, OWCP found that appellant had not met her burden

of proof to establish a recurrence of disability commencing June 21, 2012 due to a work-related 

condition. It also exercised its discretion and denied authorization for her October 22, 2012 left 

knee surgery.

On March 9, 2017 counsel, on behalf of appellant, requested reconsideration of the

December 19, 2016 decision and argued that Dr. Henderson’s November 10 and December 2, 

2016 reports were not well rationalized. By decision dated April 6, 2017, OWCP denied her

request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8l28(a).

Appellant appealed OWCP’s December 19, 2016 and April 6, 2017 decisions to the Board

and, by decision dated December 7, 2017,10 the Board set aside both decisions. The Board found 

that there was an unresolved conflict in the medical opinion evidence between Dr. Henderson and

Dr. Glushakow regarding whether appellant’s October 22, 2012 surgery was necessitated by a 

work-related condition and whether she had work-related disability on or after June 21, 2012. The 

Board determined that, on remand, appellant and the case record must be referred to an impartial 

medical examiner for examination and opinion on these matters, to be followed by a de novo

decision.

On remand OWCP referred appellant on December 19, 2017 to Dr. Michael Wujciak, a

Board-certified orthopedic surgeon, for an impartial medical examination and opinion regarding

whether her October 22, 2012 surgery was necessitated by a work-related condition and whether

she established work-related disability on or after June 21, 2012.

 

10 Supra note 3.
6

In a February 27, 2018 report, Dr. Wujciak reported the findings of his January 10, 2018

physical examination, noting that appellant demonstrated full range of motion of her left knee upon 

distraction. Appellant exhibited diffuse tenderness upon palpation of her left knee, but her

response was exaggerated. Dr. Wujciak noted that she did not have ligamentous laxity in her left 

knee and observed that her subjective complaints were disproportionately greater than her 

objective findings. He indicated that, after appellant suffered her October 5, 2009 work-related 

left knee injury, she had a good result from her January 12, 2010 surgery. Dr. Wujciak indicated

that, during the October 22, 2012 surgery, Dr. Glushakow found an osteochondral fracture of the 

medial femoral condyle and a tear of the lateral meniscus, but noted that he failed to describe these 

conditions with any detail in his surgery report. He advised that he had reviewed a report of an 

August 24, 2012 MRI scan of appellant’s left knee and indicated that it was out of the ordinary for 

the study to show that the left lateral meniscus had normal signal intensity/morphology given the 

performance of the January 12, 2010 surgery.

11

 Dr. Wujciak asked to review the August 24, 2012

MRI scan in its original hard copy or on CD, and to review any left knee x-rays that were 

performed. He also recommended that the original August 24, 2012 MRI scan be reread by an 

independent third party. Dr. Wujciak asserted that, with the present documentation provided, he 

could not confirm the multiple pathologies observed by Dr. Glushakow during the October 22, 

2012 surgery. He also noted that new x-ray studies were warranted.12

On March 12, 2018 OWCP requested that Dr. Wujciak provide a supplemental report

regarding whether appellant’s October 22, 2012 surgery was necessitated by a work-related

condition and whether she had disability on or after June 21, 2012 due to a work-related condition. 

In a March 13, 2018 report, Dr. Wujciak responded to a question about whether the October 22, 

2012 surgery was necessary due to a work-related condition by noting that, based on the materials 

supplied and reviewed, he was unable to objectively “determine/diagnose the injuries sustained on 

October 22, 2012.” He indicated that it was apparent that no independent “over-read” of the 

August 24, 2012 MRI scan had been performed. Dr. Wujciak advised that Dr. Glushakow’s

operative report and office records were insufficient to be used as determinative documentation in

an independent evaluation. He indicated that his opinion might or might not alter with receipt of 

additional materials, including an independent over-read of the August 24, 2012 MRI scan by a 

Board-certified radiologist, inter-operative photographs of the January 12, 2010 and October 22, 

2012 surgeries, and treatment records produced between June 20 and July 5, 2012.

OWCP sent Dr. Wujciak a number of treatment records dated between June 20 and

July 12, 2012. In a March 15, 2018 report, Dr. Wujciak indicated that he had reviewed the

provided records and noted, “My medical/surgical opinions as expressed in my prior report of

February 27, 2018 and addendum of March 13, 2018 remain otherwise unchanged.” 

By decision dated March 23, 2018, OWCP found that appellant failed to meet her burden

of proof to establish disability from work commencing June 21, 2012 due to a work-related left

knee condition. It also denied her request for authorization of October 22, 2012 left knee surgery 

because she did not establish that it was necessitated by a work-related condition. OWCP found

 

11 Dr. Wujciak indicated “No” in response to a question regarding whether appellant had established total disability 

on or after June 21, 2012 due to a work-related condition. He completed a work capacity evaluation (Form OWCP5c) on February 25, 2018 in which he indicated that she could perform modified duty for four hours per day.
7

that the special weight of the medical opinion evidence with these respect to these matters rested 

with the well-rationalized opinion of Dr. Wujciak, the impartial medical examiner.

Appellant appealed her case to the Board and, in an April 19, 2019 decision,13 the Board

set aside the March 23, 2018 decision. The Board noted that Dr. Wujciak felt that additional 

documentation was necessary before he could render a final opinion regarding whether her claims 

regarding surgery and disability. The Board remanded the case to OWCP and directed it to request 

that Dr. Wujciak provide a clarifying supplemental report, to be followed by the issuance of a de 

novo opinion regarding the surgery and disability matters.

On remand OWCP requested that Dr. Wujciak provide clarification of his opinion on the 

surgery and disability matters. It afforded him 30 days to provide a supplemental report. 

Dr. Wujciak did not respond to OWCP’s request within the afforded period and, on July 9, 2019,

OWCP referred appellant for an impartial medical examination with Dr. Alan M. Crystal, a Boardcertified orthopedic surgeon. OWCP provided Dr. Crystal a current statement of accepted facts 

(SOAF) and requested that he provide an opinion regarding whether her October 22, 2012 surgery 

was necessitated by a work-related condition and whether she had work-related disability on or 

after June 21, 2012.

The case record contains a July 9, 2019 Integrated Federal Employees’ Compensation 

System (iFECS) report with the designation “ME023 -- Appointment Schedule Notification,”

which indicates that an impartial medical examination had been scheduled for August 1, 2019. A

document entitled, “Bypass History Report for Scheduled Appointment,” contains bypass notes 

indicating why each of the Board-certified orthopedic surgeons contacted by OWCP was bypassed 

for selection as an impartial medical specialist. The report notes that OWCP telephoned

Dr. Wujciak on July 9, 2019 at 11:28 a.m. and it contains the bypass note, “[Claimant] seen [sic] 

this [physician] in the past.” It also shows that OWCP telephoned Dr. Robert Dennis on that date 

at 11:28 a.m. and 11:29 a.m. and, for both calls, it contains the bypass note, “The [physician] is 

still in court.” On the same date, OWCP telephoned Dr. Leon Sultan at 11:35 a.m. and the bypass 

note indicates, “I spoke with the manager and I found that the [physician] do [sic] not want to do 

direct deposit and that is why [h]is bill is not paid.” The report also contains the notation, “This 

report serves as certification that the Medical Management Application in [iFECS] was used to 

schedule this appointment.” In a July 15, 2019 letter, counsel requested that OWCP provide him 

with the SOAF provided to Dr. Crystal and with the “selection methodology used to pick 

[Dr. Crystal] and the bypass history.” On July17, 2019 OWCP sent counsel the requested 

documents.

In an August 1, 2019 report, Dr. Crystal provided a discussion of the medical records 

concerning appellant’s treatment since 2009 and incorporated into his report the SOAF provided 

by OWCP. He reported the findings of his physical examination, noting that she had normal 5/5 

strength in her lower extremities and had synovitis in her left knee with crepitus upon range of 

motion. Dr. Crystal diagnosed degenerative osteoarthritis of appellant’s left knee and opined that 

her October 22, 2012 left knee surgery was not necessitated by an employment-related condition. 

He noted that an August 24, 2012 MRI scan of the left knee showed small joint effusion, moderate 

 

13 Supra note 3.
8

sized popliteal cyst, no evidence of meniscal tear, normal marrow signal in the medial 

compartment, and normal marrow signal in normal in the lateral meniscus. Dr. Crystal maintained 

that the August 24, 2012 MRI scan did not show objective evidence of a left knee injury from 

stepping off a curb and indicated that appellant’s October 22, 2012 surgery report showed an 

osteochondral fracture of the medial femoral condyle, a partial tear of the lateral meniscus, and 

chondromalacia of the patella. He noted that the operative findings were consistent with 

progressive degenerative arthritis and opined that that the August 24, 2012 MRI scan results 

negated a finding that the osteochondral fracture of the medial femoral condyle was traumatic. 

Dr. Crystal indicated that, although the operative report noted a torn lateral meniscus, it did not 

describe the tear in any detail. He explained that meniscus degeneration with fraying and tearing 

was a component of knee arthritis and that, if appellant had a traumatic lateral meniscus tear, it 

would have been seen on the MRI scan. Dr. Crystal noted that, even if appellant had a minute 

lateral meniscus tear, it would have been asymptomatic and would not have caused disability. He 

opined that she did not have employment-related disability on or after June 21, 2012 and indicated 

that her inability to perform her regular work was not due to an employment-related condition. 

Appellant was capable of performing sedentary work on a full-time basis. 

By decision September 5, 2019, OWCP denied appellant’s claim for a recurrence of 

disability from work commencing June 21, 2012 due to a work-related left knee condition and 

denied her request for authorization of the October 22, 2012 left knee surgery because the 

procedure was not necessitated by a work-related condition. It found that the special weight of the 

medical opinion evidence with respect to these issues rested with the well-rationalized opinion of

Dr. Crystal.

On February 19, 2020 appellant, through counsel, requested reconsideration of the 

September 5, 2019 decision.14 In a February 19, 2020 statement, counsel argued that Dr. Crystal 

did not seem to understand that, under OWCP File No. xxxxxx003, OWCP had accepted her claim 

for medial meniscus tear of the left knee and authorized left knee surgery which was performed on 

January 12, 2010. He maintained that Dr. Crystal questioned Dr. Glushakow’s interpretation of 

an August 24, 2012 MRI scan which documented a lateral meniscus partial tear and patellar 

chondromalacia of appellant’s left knee. Counsel asserted that Dr. Glushakow also documented 

an osteochondral fracture of the medial femoral condyle and traumatic chondromalacia of the left 

knee and that Dr. Henderson found a lateral meniscus tear and aggravation of preexisting arthritis

of the left knee. He argued that, even if the January 12, 2010 surgery was unnecessary (as had 

been indicated by Dr. Crystal), it was performed due to appellant’s employment-related injury and 

was part of the treatment under her workers’ compensation case. Counsel noted, “As a result, 

OWCP must accept the surgery result.” He indicated that she had undergone two surgeries and 

clearly had severe problems in her left knee because of her two employment-related injuries. 

Counsel asserted that Dr. Crystal’s report was not properly rationalized and that he should not have 

gone beyond the findings of the SOAF. He also alleged that OWCP’s selection of Dr. Crystal as 

an impartial medical examiner was not proper and advised that reference should be made to another 

February 19, 2020 statement he produced.

 

14 Appellant resubmitted copies of Dr. Crystal’s August 1, 2019 report.
9

In another February 19, 2020 statement, counsel requested that OWCP provide a statement 

of services and proof of payment for the August 1, 2019 impartial medical examination conducted 

by Dr. Crystal. He indicated that he had received an iFECS report showing the following: that

Dr. Wujciak was bypassed because he previously served as an impartial medical examiner; that

Dr. Robert Dennis was bypassed because he was in court on July 9, 2019 (with telephone 

conversations occurring at 11:28 a.m. and again at 11:29 a.m. on that date); and that Dr. Sultan 

was bypassed for “some reason regarding direct deposit.” Counsel requested a complete and total 

explanation regarding the iFECS process. He maintained that it seemed every physician on the 

list was a “regular for OWCP,” rather than a “referee-type physician,” and alleged that the

physicians had been used for second opinions and had performed many examinations for OWCP 

in the past. Counsel requested an explanation as to why Dr. Dennis was bypassed and why his 

office was called on two occasions one minute apart, and noted that he wished to receive better 

explanations as to why the other physicians were bypassed. He indicated that he understood that

Dr. Wujciak was bypassed because he previously served as an impartial medical examiner. 

Counsel noted, however, that appellant lived in the area of Irvington, New Jersey, and asserted 

that there were many orthopedists in her area that could have been considered for an impartial 

medical examiner. 

By decision dated May 19, 2020, OWCP denied appellant’s request for reconsideration of 

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

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 compensation at any time on his or her own motion or on application.15 To require 

OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence 

or an argument 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.16

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

OWCP’s decision for which review is sought.17 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.18 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 

 

15 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued 

October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

16 20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

17 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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 iFECS. Id. at Chapter 2.1602.4b.

18 Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).
10

reopening the case for review on the merits.19 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.20 

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).

On February 19, 2020 appellant filed a timely request for reconsideration from a

September 5, 2019 decision.

21

 The Board finds that she did not establish that OWCP erroneously 

applied or interpreted a specific point of law, nor did she advance a relevant legal argument not 

previously considered by OWCP. In a February 19, 2020 statement, counsel argued that

Dr. Crystal was improperly selected as an impartial medical examiner and maintained that

therefore his August 1, 2019 report could not serve as the basis for denying appellant’s claim that 

her October 22, 2012 left knee surgery should be authorized as necessitated by a work-related 

condition and her claim that she should receive wage-loss compensation for work-related disability 

commencing June 21, 2012. However, he did not provide support for the argument that

Dr. Crystal was improperly selected as an impartial medical examiner. Counsel merely detailed 

the contents of documents already in the case record which contained information regarding why 

other physicians were bypassed before the selection of Dr. Crystal. He did not cite OWCP’s 

procedures/regulations or Board precedent to support his assertion that OWCP improperly selected

Dr. Crystal. In another February 19, 2020 report, counsel asserted that the opinions contained in

Dr. Crystal’s August 1, 2019 report were insufficiently well rationalized to serve as the basis for 

OWCP’s denial of appellant’s surgery and disability claims. He alleged that Dr. Crystal had not 

accepted the factual underpinnings of the SOAF because of the manner in which he interpreted the 

findings of an August 1, 2019 MRI scan of appellant’s left knee. However, there is no indication 

that Dr. Crystal had not acknowledged the facts contained in the SOAF, including OWCP’s 

acceptance that appellant sustained a medial meniscus tear of the left knee on October 5, 2019 and 

that it authorized January 12, 2010 left knee surgery. He only noted that the August 1, 2019 MRI 

scan did not show a lateral meniscus tear of the left knee, a condition which has not been accepted 

as employment related. For these reasons, the Board finds that appellant is not entitled to a review 

of the merits based on either the first or second requirement under 20 C.F.R. § 10.606(b)(3). 

On reconsideration, appellant resubmitted copies of Dr. Crystal’s August 1, 2019 report 

which were already in the case record. The submission of this evidence does not warrant a review 

of appellant’s claim on the merits because Board has held that the submission of evidence which 

 

19 Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

20 N.L., Docket No. 18-1575 (issued April 3, 2019).

21 See J.F., Docket No. 16-1233 (issued November 23, 2016).
11

repeats or duplicates evidence already in the case record does not constitute a basis for reopening a 

case.22 

Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R. 

§ 10.606(b)(3). The Board accordingly finds that she 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 May 19, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 24, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

22 See supra note 20.