United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.E., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NEW YORK REGIONAL OFFICE,

New York, NY, Employer

__________________________________________

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Docket No. 19-1824

Issued: April 3, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 23, 2019 appellant filed a timely appeal from a February 25, 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 February 22, 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 over the merits of this case.2

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the February25, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

evidence for the first time on appeal. Id. 
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 24, 2017 appellant, then a 41-year-old veterans’ service representative, filed a 

traumatic injury claim (Form CA-1) alleging that on January 18, 2017 he injured his neck and 

tailbone when he attempted to sit down and his chair slipped and he fell hitting the base of his 

“tailbone/back” while in the performance of duty. On the reverse side of the claim form the 

employing establishment noted that he stopped work on January 18, 2017 and resumed work on 

January 25, 2017.

Appellant was treated at an employing establishment facility on January 19, 2017 and was 

held off work for two days. A January 23, 2017 follow-up note containing an illegible signature 

indicated that appellant’s diagnosis was mild cervical spine degenerative disc disease after a fall.

February 2, 2017 urgent care notes signed by Dr. Herman Chiu, Board-certified in internal

medicine, indicated that appellant fell at work and presented with back pain, neck pain, right leg 

weakness, and intermittent loss of bowel sphincter function. Appellant related that he had a prior 

back injury from military service, a herniated disc, and a hemangioma near his spine. Dr. Chui 

conducted a physical examination and diagnosed lumbago, muscles spasms, and neuropathy.

February 6, 2017 urgent care notes signed by Dr. Faika Khan, an osteopath Board-certified 

in family medicine, indicated that appellant had a history of a herniated disc and back pain due to 

a prior injury. Dr. Khan conducted a physical examination and diagnosed neuropathy, muscle 

spasms, and lumbago.

A February 15, 2017 medical report from Dr. Eial Faierman, a Board-certified orthopedic 

surgeon, indicated that appellant presented with pain in his right hip radiating into his groin and 

bilateral upper and lower radiculopathy. Dr. Faierman reviewed appellant’s history of injury and 

noted that he injured his lower back in 2006. Appellant related that his recent workplace injury 

exacerbated his prior lower back injury. Dr. Faierman conducted a physical examination and 

diagnosed cervical and lumbar spine strains. He opined that, if appellant’s medical history was 

accurate, there was a causal relationship between appellant’s complaints and his most recent injury.

In an April 13, 2017 development letter, OWCP indicated that when appellant’s claim was 

received it appeared to be a minor injury that resulted in minimal or no lost time from work and, 

based on these criteria and because the employing establishment did not controvert continuation 

of pay or challenge the case, payment of a limited amount of medical expenses was 

administratively approved. It explained that it reopened the claim for consideration because the 

medical bills exceeded $1,500.00. OWCP related that additional evidence was required in support 

of appellant’s claim for benefits. It requested additional factual and medical evidence and attached 

a questionnaire for his completion. OWCP afforded appellant 30 days for a response.
3

Numerous diagnostic studies dating from February 17, 2015 to May 30, 2017 were 

submitted to the record.

January 19, 2017 emergency room records by Dr. Shujun Xia, Board-certified in 

emergency medicine, indicated that appellant fell at work and complained of back pain. 

Appellant’s history of lumbosacral radiculopathy was listed, a physical examination was 

conducted, and he was diagnosed with back pain. January 26, 2017 emergency room records 

signed by Dr. Xia indicated that he conducted a physical examination and diagnosed persistent 

lower back pain, which he noted that appellant started experiencing after his workplace fall.

An April 13, 2017 medical report from Dr. Faierman indicated that appellant complained 

of neck and back pain. Dr. Faierman reviewed appellant’s recent magnetic resonance imaging 

(MRI) scans of the thoracic and cervical spines and electromyograms (EMGs), and nerve 

conduction velocity (NCV) studies, conducted a physical examination, and diagnosed a cervical 

spine strain, C5-6 disc herniation, C3-4 and C6-7 disc bulges, a lumbar spine strain/degenerative 

changes, and a T6-7 disc herniation. 

An April 27, 2017 medical report by Dr. Ralph Napolitano, a chiropractor, indicated that 

appellant presented with neck and back pain. Dr. Napolitano noted that appellant’s computerized 

tomography (CT) scan and x-rays were positive for subluxation and disc herniation. He noted that 

on January 24, 2017 appellant returned to work and reinjured himself when lifting up a box. 

Dr. Napolitano conducted a physical examination and diagnosed segmental and somatic 

dysfunction of the cervical, thoracic, and lumbar regions. He opined that appellant’s January 18, 

2017 workplace fall caused the subluxation in his cervical and thoracic spine and aggravated his 

preexisting lumbar spine injury.

On May 10, 2017 appellant signed OWCP’s questionnaire’s statement of certification and 

provided answers to its questions.

By decision dated June 22, 2017, OWCP denied appellant’s traumatic injury claim, finding 

that the evidence of record failed to establish a causal relationship between his diagnosed 

conditions and the accepted January 18, 2017 employment incident. It concluded that the 

requirements had not been met to establish an injury or condition causally related to the accepted 

employment incident.

OWCP continued to receive medical evidence. A May 30, 2017 medical report by Dr. Tim 

Canty, Board-certified in pain medicine, indicated that appellant presented with neck and back 

pain, which started after his work injury. A physical examination was conducted by Dr. Canty 

who diagnosed displacement of cervical intervertebral disc, cervical radiculitis, thoracic spine 

pain, thoracic spine sprain, thoracic spine strain, thoracic or lumbosacral neuritis or radiculitis, and 

myalgia. Appellant continued to follow up with Dr. Canty who continued to diagnose 

displacement of cervical intervertebral disc, cervical radiculitis, thoracic spine pain, thoracic spine 

sprain, thoracic spine strain, thoracic or lumbosacral neuritis or radiculitis, and myalgia. 

A June 12, 2017 medical report by Dr. Faierman indicated that appellant presented with 

back pain with lower extremity radiculopathy and neck pain with right extremity radiculopathy. 

Dr. Faierman repeated the same diagnoses as in his previous report. Appellant continued to follow 
4

up with Dr. Faierman regarding his neck and back pain, and Dr. Faierman continued to diagnose 

appellant with the same diagnoses of a cervical spine strain/C5-6 disc herniation, C3-4 and C6-7 

disc bulges, a lumbar spine strain/degenerative changes, and T6-7 disc herniation.

A June 26, 2017 “ancillary medical report” by Dr. Richard DeNise, a Board-certified 

radiologist, diagnosed segmental and somatic dysfunction of the cervical and lumbar regions after 

interpreting various ultrasounds.

On October 3, 2017 appellant requested reconsideration. By decision dated February 22, 

2018, OWCP denied modification of its June 22, 2017 decision. 

On February 19, 2019 appellant requested reconsideration. By decision dated February 25, 

2019, OWCP denied his reconsideration request.

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.3

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.4

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.5 If it chooses to grant reconsideration, 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

 

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

5

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. Id. at Chapter 2.1602.4b.

6

Id. at § 10.608(a); see also A.P., Docket No. 19-0224 (issued July 11, 2019).

7

Id. at § 10.608(b); A.G., Docket No. 19-0113 (issued July 12, 2019).
5

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). 

In his timely reconsideration request, appellant did not show that OWCP erroneously 

applied or interpreted a specific point of law, nor did he advance a new and relevant argument not 

previously considered. Accordingly, he is not entitled to a review of the merits of his claim based 

on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 

Appellant failed to submit any evidence in support of his request for reconsideration. 

Therefore, OWCP was not required to open his claim for reconsideration of the merits in 

accordance with the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).

As appellant’s request for reconsideration did not meet any of the three requirements 

enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied his 

request for reconsideration without reopening the case for review on the merits.

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).
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ORDER

IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 3, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board