United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, St. Louis, MO, Employer

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Docket No. 18-1020

Issued: November 1, 2018

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy 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 February 28, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from OWCP’s last merit decision, dated December 1, 2016, 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 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 December 4, 2011 appellant, then a 39-year-old screener, filed a traumatic injury claim 

(Form CA-1) alleging that, on December 4, 2011, he sustained injury while at work when pulling 

a heavy bag from an x-ray machine. He stopped work on the date of injury and returned to work 

the next day.

OWCP initially accepted appellant’s claim for thoracic and cervical sprains. 

On February 10, 2012 appellant underwent OWCP-authorized surgery, including anterior 

arthrodesis and removal of disc osteophyte complex with hardware placement device at C4-5.3

OWCP later expanded the acceptance of appellant’s claim to include conditions of cervical 

herniated disc at C4-5, cervical myelopathy, dysphagia, complete left rotator cuff rupture, deep 

vein thrombosis of the left leg, and pulmonary embolism. 

Appellant stopped work on February 10, 2012 and received disability compensation on the

daily rolls beginning February 11, 2012. He received disability compensation on the periodic rolls 

beginning October 21, 2012. 

In a November 19, 2012 report, Dr. Lizette Alvarez, an attending Board-certified physical 

medicine and rehabilitation physician, noted that appellant reported that he had been experiencing 

bladder urgency since his February 10, 2012 surgery, but was too embarrassed to tell anyone. She

recommended that appellant visit a urologist to evaluate whether he had a neurogenic bladder and 

noted that she suspected his bladder problems were a result of the cervical myelopathy.

On January 9, 2013 OWCP referred appellant for a second opinion examination to

Dr. Robert Sciortino, a Board-certified orthopedic surgeon. It requested that Dr. Sciortino evaluate 

the current nature of appellant’s cervical condition and determine whether any additional 

conditions were associated with the injury. 

In a January 25, 2013 report, Dr. Sciortino noted that appellant reported that he had 

developed bladder and sexual dysfunction symptoms. Regarding any additional diagnoses, he

reported that appellant’s large herniated C4-5 disc created significant cord compression which 

caused weakness in the entire left side of his body, as well as in his right upper extremity. This 

condition produced some urinary difficulties and sexual dysfunction, which Dr. Sciortino opined 

that were entirely related to the December 4, 2011 work injury.

 

3 On July 6, 2012 appellant fell off a swimming platform at a lake when his left knee buckled. He fell onto his right 

side, hitting a jet ski, and then landed face first in the water. 
3

In a March 4, 2013 report, Dr. Luis Anglo, an attending Board-certified urologist, noted 

that appellant reported that over the past seven plus months he had noticed more urgency to urinate 

and occasional urge incontinence. He advised that appellant also reported complaints of sexual 

dysfunction since his cervical accident. Dr. Anglo diagnosed urge incontinence and impotence of 

organic origin. 

On March 27, 2013 Dr. Anglo performed an unapproved cystoscopy, documenting that

appellant’s bladder/urethra was normal. In several reports from mid-2013, Dr. Alvarez continued 

to note that appellant had possible erectile dysfunction.

On July 19, 2013 appellant underwent cervical surgery, including C4-5 hardware removal, 

anterior fusion, and discectomies with hardware placement from C5-7. On August 15, 2013 he 

underwent left shoulder labral repair, subacromial decompression, and distal clavicle resection. 

In a December 9, 2013 report, Dr. Anglo noted that he first saw appellant on March 4, 2013

for multiple urinary complaints and most notably urge incontinence. He indicated that a post void 

residual check was performed as a spinal injury or surgery could predispose a person to urinary 

difficulty secondary to retention from loss of motor function or bladder hyperactivity. Dr. Anglo

indicated that appellant reported that his symptoms seemed to occur with his injury and certainly

were worse after surgical intervention. He noted that appellant also related difficulties attaining

and maintaining erections after his injury/surgery, which appellant indicated that certainly could 

be neurogenic in origin. Dr. Anglo indicated that, although he could not conclusively say that 

appellant’s troubles with his voiding and erectile dysfunction were not exactly related, it did seem 

“from a history and timing standpoint that it certainly was contributory in light of him not reporting

problems previously.”

In a December 11, 2013 report, Dr. Todd J. Stewart, an attending Board-certified 

neurosurgeon, indicated that appellant essentially had a spinal cord injury from the initial 

compression and he opined that appellant’s problems with urinary urgency and erectile 

dysfunction were related to this cervical cord compression.

On March 3, 2014 OWCP referred appellant’s case to Dr. Daniel Zimmerman, a Boardcertified internist, to serve as an OWCP medical adviser. It requested that Dr. Zimmerman address 

the potential consequential conditions of erectile dysfunction and urge incontinence. 

In a March 5, 2014 report, Dr. Zimmerman indicated that urge incontinence and erectile 

dysfunction could be the consequence of the cervical spine accepted conditions, behavioral health 

issues in terms of his marital breakup in April 2013 (in reference to his erectile dysfunction), and/or 

the use of medications. He noted that the post void residual check amount reported by Dr. Anglo 

did not suggest a neurogenic bladder, as claimed to be the diagnosis by Dr. Alvarez. 

Dr. Zimmerman indicated that urge incontinence was subjective and that there was nothing in the 

urologic records indicating that appellant had actual urinary incontinence, such as wet under 

clothing or using pads for dribbling. He opined that, for much the same reasons, erectile 

dysfunction could not be accepted as a consequential diagnosis. Dr. Zimmerman recommended 

pursuing urologic work up to further consider the symptoms in terms of consequential conditions.
4

In an April 16, 2014 discharge report, Dr. Stewart opined that appellant’s bladder issues 

were directly and causally related to his cervical spinal cord compression. 

In an August 4, 2014 letter, appellant’s former counsel requested expansion of the 

acceptance of the claim for urinary incontinence and erectile dysfunction due to the employmentrelated compression on his cervical cord, based on Dr. Stewart’s reports. 

In a September 3, 2014 report, Dr. Michael Chehval, an attending Board-certified 

urologist, noted that appellant was being evaluated for erectile dysfunction, noting that he had a 

cervical neck injury one and a half years ago, with subsequent urinary urgency and urge leakage 

and poor erections.

On October 10, 2014 OWCP referred appellant for a second opinion examination with

Dr. Carlos Deleste, a Board-certified urologist. It requested that Dr. Deleste evaluate whether

appellant had employment-related urinary or erectile dysfunction conditions. 

In an October 23, 2014 report, Dr. Deleste detailed appellant’s factual history, noting that 

appellant reported urgency in urination as moderate and urinary incontinence as minimal, with no 

dysuria, hematuria, leakage, or pad usage. Appellant reported that erectile dysfunction was an 

issue a few weeks post injury. Dr. Deleste reported that the results of urinalysis were negative. 

He summarized appellant’s findings as limited turning of motion of his neck, a left varicocele and 

walking with a slight drop foot, claims of numbness of his thighs anteriorly, absent 

bulbocavernosus, claimed depression, urgency incontinence without frequency, dysuria times 

three, and nocturia one time. Dr. Deleste indicated that there was “a conflict for cervical trauma 

causing urine urgency incontinence without frequency” because usually there was associated 

frequency. He advised that the absent bulbocavernosus reflex was caused by lower spinal cord 

injury in the lumbosacral region, and noted that the anal sphinctertone was normal. Dr. Deleste 

opined that the occurrence of erectile dysfunction and urgency incontinence could not be 

substantiated by cervical trauma alone and noted depression was a contributing factor. He 

determined that appellant did not require any work restrictions. 

By decision dated January 8, 2016, OWCP denied expansion of the acceptance of 

appellant’s claim for the conditions of urinary incontinence and erectile dysfunction, finding that 

the weight of the medical opinion evidence rested with the second opinion urologist, Dr. Deleste, 

who found that these conditions were not causally related or consequential to the December 4,

2011 employment injury.

On January 10, 2016 appellant, through his former counsel, requested a hearing with a 

representative of OWCP’s Branch of Hearings and Review. During the hearing held on 

September 16, 2016, appellant testified that his urinary incontinence and erectile dysfunction 

began after his December 4, 2011 employment injury.

By decision dated December 1, 2016, OWCP’s hearing representative affirmed OWCP’s 

January 8, 2016 decision. The hearing representative determined that the weight of the medical 

opinion evidence with respect to appellant’s claim expansion continued to rest with the opinion of

Dr. Deleste. 
5

On November 30, 2017 appellant’s present counsel requested reconsideration of the 

December 1, 2016 on behalf of appellant. In a November 30, 2017 memorandum, he argued that 

the medical evidence of record established appellant’s claim for expansion of the accepted 

conditions to include urinary incontinence and erectile dysfunction. Counsel discussed various 

medical reports which he believed supported appellant’s claim, including Dr. Sciortino’s 

January 25, 2013 report, Dr. Anglo’s December 9, 2013 report, and Dr. Stewart’s December 11, 

2013 report. He also argued that Dr. Deleste’s October 23, 2014 report was insufficient to 

constitute the weight of the medical opinion evidence with respect to appellant’s request for the 

expansion of the acceptance of his claim to include additional conditions. Counsel cited Board 

precedent which he believed showed that appellant’s case should have been further developed with 

respect to the urinary incontinence and erectile dysfunction conditions.

Appellant submitted a November 28, 2016 report from Dr. Stewart who detailed 

appellant’s continuing complaints of upper and lower extremity symptoms, as well as urinary 

incontinence and erectile dysfunction. Dr. Stewart indicated that appellant was able to perform 

limited-duty work with restrictions on lifting duties and noted, “[Appellant] has significant 

weakness in his distal left foot and is myelopathic with balance problems, urinary incontinence 

and erectile dysfunction related to his initial cord compression and injury to his cord.”

By decision dated February 28, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence 

and argument submitted by him was repetitious or irrelevant.

LEGAL PRECEDENT

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

to review an award for or against compensation. OWCP may review an award for or against 

payment of compensation at any time based on its own motion or on application.4 

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence 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.5 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.6 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.7

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

6

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

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
6

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 For OWCP decisions issued on or after 

August 29, 2011, the date of the application for reconsideration is the “received date” as recorded 

in the Integrated Federal Employees’ Compensation System (iFECS).9 

The Board has held that the submission of evidence or argument which repeats or duplicates 

evidence or argument already in the case record10 and the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case.11

ANALYSIS

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).

The Board must consider whether appellant’s timely 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 his request for reconsideration did not 

show that OWCP erroneously applied or interpreted a specific point of law, advance a new and 

relevant legal argument not previously considered by OWCP, or constitute relevant and pertinent 

new evidence not previously considered by OWCP.

12

 

In support of his request for reconsideration, appellant submitted a November 30, 2017 

memorandum in which counsel argued that the medical evidence of record established his claim 

for expansion of the accepted conditions to include urinary incontinence and erectile dysfunction. 

The Board notes that OWCP has already considered and rejected this argument. Counsel discussed 

various medical reports from attending physicians which he believed supported appellant’s claim, 

including Dr. Sciortino’s January 25, 2013 report, Dr. Anglo’s December 9, 2013 report, and

Dr. Stewart’s December 11, 2013 report. He also argued that Dr. Deleste’s October 23, 2014 

report was insufficient to constitute the weight of the medical opinion evidence with respect to 

appellant’s expansion claims. However, OWCP has already considered these reports, finding that 

the attending physician reports were insufficient to establish appellant’s expansion claim and that

Dr. Deleste’s report constituted the weight of the medical opinion evidence. Counsel further 

argued that, at the very least, appellant’s case should have been further developed with respect to 

the claimed urinary incontinence and erectile dysfunction conditions. This argument has already 

been considered and rejected by OWCP in that it has been determined that the weight of the 

medical evidence continues to rest with Dr. Deleste’s opinion with no need for further 

development. Because counsel’s argument repeats or duplicates argument in the case record, the 

 

8

Id. at § 10.607(a).

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

also C.B., Docket No. 13-1732 (issued January 28, 2014). 

10 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

11 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

12 See supra note 5.
7

Board finds that appellant’s submission of this argument does not require reopening his claim for 

review on the merits.13

The Board notes that the underlying issue of this case, i.e., whether rationalized medical 

evidence establishes appellant’s claimed additional conditions as causally related to his 

December 4, 2011 employment injury, is a medical issue which must be addressed by relevant 

medical evidence.14 

Appellant submitted a November 28, 2016 report of Dr. Stewart in which he described 

appellant’s current symptoms/condition and indicated that he could return to limited-duty work. 

Dr. Stewart noted that appellant had urinary incontinence and erectile dysfunction “related to his 

initial cord compression and injury to his cord.” The Board finds, however, that this report is 

similar to previously considered reports of Dr. Stewart, including those dated December 11, 2013 

and April 16, 2014, in which Dr. Stewart found that appellant had employment-related urinary 

incontinence and erectile dysfunction, but did not provide any explanation for such an opinion. 

Therefore, the submission of the Dr. Stewart’s November 28, 2016 report does not constitute a 

basis for reopening a case.15

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).

 

13 See supra note 10.

14 See Bobbie F. Cowart, 55 ECAB 746 (2004).

15 See supra note 10.
8

ORDER

IT IS HEREBY ORDERED THAT the February 28, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 1, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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