United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.J., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

ALCOHOL, TOBACCO, FIREARMS &

EXPLOSIVES, Detroit, MI, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1979

Issued: August 12, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 30, 2019 appellant filed a timely appeal from an August 22, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated August 16, 2018, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of this case. 

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).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 17, 2018 appellant, then a 40-year-old criminal investigator (special agent), filed 

a traumatic injury claim (Form CA-1) alleging that on May 9, 2018 he sustained soreness and 

aching of the upper back when his vehicle was struck from behind while in the performance of 

duty.

In a May 24, 2018 development letter, OWCP informed appellant that additional medical 

evidence was needed to establish his claim. It advised him of the type of factual and medical 

evidence needed, including medical evidence from a qualified physician which provided a 

diagnosis and a rationalized explanation as to how the employment incident caused the diagnosed 

condition. OWCP afforded appellant 30 days to submit the necessary evidence.

In progress notes dated May 17, 2018, Dr. Norman J. Kakos, a Board-certified internist, 

noted appellant’s complaints of pain between the shoulder blades. Appellant told Dr. Kakos that 

he had been involved in a motor vehicle accident (MVA) in which he was rear-ended. On physical 

examination of the spine, Dr. Kakos observed no tenderness to palpation. He assessed appellant 

had back pain after an MVA.

A diagnostic report dated May 21, 2018 noted results of appellant’s thoracic spine x-rays 

taken on that date, which demonstrated unremarkable vertebral body height and alignment with no 

definite bony destructive change, paraspinal mass, or acute fracture site. A diagnostic report of 

the same date noted that x-rays of appellant’s cervical spine demonstrated a slight contour 

deformity of the superior endplate at C6, which was of questionable significance, with otherwise 

unremarkable results.

By decision dated June 27, 2018, OWCP denied the claim finding that appellant had not 

established the medical component of fact of injury. While it accepted that the employment 

incident on May 9, 2018 occurred as alleged, it found that no valid diagnosis had been established

in connection with the incident. OWCP concluded, therefore, that the requirements had not been 

met to establish an injury as defined by FECA.

A cervical spine x-ray report dated May 17, 2018 demonstrated questionable findings in 

relation to the spinous process at C5, with no other significant findings. An x-ray report of 

appellant’s lumbar spine of even date demonstrated nonrib-bearing lumbar-type vertebral bodies 

with probable transitional L5; unremarkable vertebral body height and alignment; relatively wellpreserved disc spaces with probable mild narrowing at L4-5; and no definite spondylosis, bony 

destructive change, or acute fracture site.

On July 5, 2018 Dr. Kakos examined appellant for a complaint of neck pain. He noted that 

appellant had no exacerbation of a preexisting condition due to the motor vehicle incident. 

Physical examination of the musculoskeletal system was negative for symptoms. Dr. Kakos 

diagnosed neck pain and hematuria following an MVA.

In a letter dated July 9, 2018, Dr. Kakos noted that appellant had been seen in his office on 

May 17, 2018 for an MVA that took place on May 9, 2018, after which appellant complained of 
3

neck and back pain. X-rays were negative and there was no exacerbation of preexisting medical 

conditions due to the incident. Dr. Kakos diagnosed musculoskeletal pain.

On August 13, 2018 appellant requested reconsideration of OWCP’s June 27, 2018 

decision.

By decision dated August 16, 2018, OWCP denied modification finding that appellant had 

not submitted evidence containing a valid medical diagnosis in connection with the incident of 

May 9, 2018.

On September 25, 2018 appellant requested reconsideration. With his request, OWCP 

received a statement from a supervisor dated September 21, 2018, which verified that appellant 

was in the performance of duty on May 9, 2018 when he was involved in an MVA. It also received

a police report dated May 9, 2018. Appellant also resubmitted Dr. Kakos’ letter of July 9, 2018.

By decision dated October 11, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of appellant’s claim. 

On November 28, 2018 appellant requested reconsideration.

In a letter dated February 26, 2019, OWCP informed appellant that reconsideration was 

not an appeal option from the October 11, 2018 nonmerit decision. It further informed him that,

even if he had indicated that he was requesting reconsideration of the June 27 or August 16, 2018 

decisions, he had not submitted any new evidence or argument requiring a merit review of his case, 

and that OWCP would have once again refused to review the prior decisions. OWCP explained 

that no further action would be taken on appellant’s request and that, if he wished to request 

reconsideration of a merit decision in his case, he must make such a request in writing within one 

year of the date of the decision for which reconsideration is requested.

Appellant submitted an unsigned note dated May 17, 2017 containing information about 

his visit with Dr. Kakos on that date, for an admitting diagnosis of MVA, as well as x-ray orders 

dated May 21, 2018, which contained the same diagnosis. He resubmitted the thoracic and cervical 

x-rays of May 17 and 21, 2018, as well as Dr. Kakos’ letter of July 9, 2018. 

On May 30, 2019 appellant requested reconsideration of OWCP’s August 16, 2018 

decision.

By decision dated August 22, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of the claim.

LEGAL PRECEDENT

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

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain 

 

2 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
4

limitations in exercising its authority.3 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.4 

A timely request 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.5 

When a timely request 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.6

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).

Although appellant timely requested reconsideration, he neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not 

advance relevant legal arguments not previously considered by OWCP. Accordingly, the Board 

finds that appellant is not entitled to a review of the merits based on either the first or second

requirements under 20 C.F.R. § 10.606(b)(3).

The Board further finds that appellant did not fulfill the third requirement under 20 C.F.R. 

§ 10.606(b)(3) because he did not submit relevant and pertinent new evidence not previously 

considered by OWCP. OWCP previously denied his claim because the medical evidence of record 

did not include a definitive diagnosis in connection with the accepted incident of May 9, 2018. In 

support of his reconsideration request, appellant submitted an unsigned note dated May 17, 2017 

containing information about his visit with Dr. Kakos, as well as x-ray orders dated May 21, 2018. 

He also resubmitted thoracic and cervical x-ray reports from May 17 and 21, 2018, as well as

Dr. Kakos’ letter of July 9, 2018. The Board finds that the unsigned note dated May 17, 2018 did 

not contain a valid diagnoses of a condition, nor did the x-ray orders dated May 21, 2018. 

Although evidence submitted on reconsideration need not carry appellant’s burden entirely to 

warrant reopening the claim for merit review, the new evidence must at least be relevant and 

pertinent to the issue(s) upon which the claim was denied.7 While this evidence is new, it does not 

address the relevant issues regarding the claim because it does not provide a definitive medical 

 

3 20 C.F.R. § 10.607.

4

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.

5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(a), (b).

7 R.R., Docket No. 18-1562 (issued February 22, 2019).
5

diagnosis.8 The thoracic and cervical x-rays of May 17 and 21, 2018, as well as Dr. Kakos’ letter 

of July 9, 2018, were before OWCP at the time of its August 16, 2018 decision and were reviewed 

by OWCP in that decision. The Board has held that evidence which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case.9

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.10

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the August 22, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 12, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

8

Id.

9 See J.B., Docket No. 18-1531 (issued April 11, 2019); D.K., 59 ECAB 141 (2007).

10 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).