United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.R., Appellant

and

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, 

Jacksonville, FL, Employer

__________________________________________

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Docket No. 20-0378

Issued: March 9, 2021

Appearances: Case Submitted on the Record

Victor A. Walker, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 9, 2019 appellant, through her representative, filed a timely appeal from a 

September 11, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from OWCP’s last merit decision, dated June 27, 2018, 

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 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

On October 24, 2017 appellant, then a 54-year-old administrative officer, filed a traumatic 

injury claim (Form CA-1) alleging that on that date at 8:40 a.m. she injured her head, neck, back, 

left shoulder, and left leg while in the performance of duty. She explained that she fell backwards 

off a step stool, hitting her head, left shoulder, and back. Appellant indicated that pain radiated 

down her left leg and that her shoulder, back, and left leg ached. On the reverse side of the claim 

form, appellant’s supervisor, M.F., indicated that appellant stopped work on October 24, 2017. 

Appellant’s supervisor indicated by check mark that appellant was injured on October 24, 2017 

while in the performance of duty; however, she also checked the box “Yes” in response to the 

question of whether appellant’s injury was caused by her willful misconduct, intoxication, or intent 

to injure herself or another. She contended that the claim was questionable because appellant had 

a pending termination action and appellant had sedentary work accommodations. M.F. further 

related that her knowledge of the facts regarding the alleged injury did not comport with 

appellant’s statements, and she related that she had tried to place appellant on administrative leave 

because her termination was pending the next day, and the employing establishment could no 

longer accommodate her work restrictions.3 She also asserted that while appellant’s notice of 

injury was dated October 24, 2017, she first received medical care on October 27, 2017.

In an October 24, 2017 authorization for examination and/or treatment (Form CA-16), the 

employing establishment authorized examination and medical treatment of appellant’s head, neck, 

left shoulder, back, and left leg, pending further advice with regard to whether appellant’s 

condition was caused by an injury in the performance of duty.

In an October 24, 2017 medical report, Gerardo Montanez Galvis, a nurse practitioner, 

indicated that appellant complained of dull neck pain and back pain related to a trauma, which

started earlier that day. He conducted a physical examination and diagnosed cervicalgia and a 

sprain of cervical spine ligaments. Mr. Galvis signed a state workers’ compensation form on that 

same date indicating that appellant sustained a work-related injury on October 24, 2017, and he 

noted that appellant had a preexisting condition that contributed to her neck sprain and contusion 

diagnoses. He additionally listed work restrictions for appellant.

OWCP also received an undated list of witnesses who appellant alleged heard or saw her 

fall.

 

3

In an April 14, 2017 memorandum, the employing establishment denied appellant’s reasonable accommodation 

request for transfer to a vacant position. In an August 4, 2017 memorandum, it affirmed its April 14, 2017 denial of 

appellant’s reasonable accommodation request. In a September 26, 2017 memorandum, the employing establishment 

notified appellant of her proposed termination of employment due to the medical inability to perform the essential 

functions of her position. In an October 25, 2017 memorandum, it informed appellant of her termination of 

employment. The effective date of termination was listed as October 28, 2017.
3

In an October 27, 2017 report, Dr. Richard Blecha, a Board-certified orthopedic surgeon, 

indicated that on October 24, 2017 appellant was standing on a two-step stool and fell backward, 

landing on the back of her head and posterior aspect of her left shoulder. He indicated that she did 

not lose consciousness, but, experienced head pain; low back pain radiating into her posterior 

thighs and knees; neck pain radiating into her left shoulder, arm, and forearm; tingling in her left 

hand; nausea; and dizziness. Dr. Blecha stated that an employing establishment nurse saw 

appellant immediately after her injury and administered pain medication, and she was seen the 

next day at an urgent care facility. He conducted a physical examination, noted preexisting 

conditions, and ordered additional diagnostic testing. In an October 27, 2017 duty status report

(Form CA-17), Dr. Blecha indicated that appellant was injured on October 24, 2017, noted clinical 

findings, diagnosed a cervical/thoracic/lumbar sprain, and stated that appellant should not work 

for 30 days.

OWCP also received November 7, 2017 magnetic resonance imaging (MRI) scans of 

appellant’s head and the cervical, thoracic, and lumbar areas of her spine. 

Mr. Galvis, in a November 6, 2017 attending physician’s report (Form CA-20), noted that 

he examined appellant on October 24, 2017. He and diagnosed a neck sprain and contusion, and 

provided work restrictions.

In a November 13, 2017 duty status report (Form CA-17), Dr. Blecha indicated that 

appellant was injured on October 24, 2017, noted clinical findings, diagnosed cervical/lumbar/

thoracic sprains, and related that appellant could not return to work for five weeks. 

By letter dated December 28, 2017, M.F., appellant’s supervisor, controverted appellant’s 

claim indicating that she doubted whether appellant’s conditions were caused by her alleged 

workplace fall. She noted that appellant had been involved in six previous car accidents and 

sustained all of the medical conditions she was currently alleging prior to her purported fall. M.F. 

noted that no one saw appellant fall, and she indicated that she was just turning a corner when she 

and a contractor heard a noise a few feet away that sounded like someone hit a file onto a surface. 

She immediately went to see what was going on and saw appellant kneeling by a stool with a file 

in her hand. M.F. stated that if appellant had fallen then she was able to recoup quickly, and she 

noted that the files on the top shelf could be reached without a stool. She indicated that appellant 

had clear instructions not to file or use a stool. M.F. had informed her of this several times and 

another supervisor had also informed her of this and indicated that another employee would pull 

and file cases. She related that the employing establishment questioned the timing of appellant’s 

alleged fall since her employment was about to be terminated, and she indicated that appellant 

engaged in willful misconduct.

In a January 15, 2018 report, Dr. Blecha indicated that appellant continued to complain of 

head, neck, shoulder, and low back pain. He conducted a physical examination, reviewed 

diagnostic studies, and indicated that appellant’s October 24, 2017 fall from a two-tiered stool 

aggravated her preexisting conditions of cervical spondylosis with radiculopathy and lumbar 

spondylosis and directly caused her left-sided occipital neuralgia. Dr. Blecha stated that appellant 

should not return to work for at least the next month.
4

By development letter dated January 25, 2018, OWCP informed appellant that the evidence 

of record was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to submit additional evidence and respond to its inquiries.

OWCP subsequently received an October 30, 2017 statement, wherein J.L., a manager, 

indicated that on March 1, 2017 she told appellant that she could not engage in any heavy lifting, 

and appellant acknowledged and agreed. In mid-June appellant began working on a new project 

where J.L. rolled a cart with case files to her desk, she would remove tabs from case files, and she

would then inform J.L when she was done and J.L. would return the case files and bring her new 

ones. J.L. reminded appellant again that she should not lift any case files and should call J.L. or 

another employee to return cases to the shelf and get her a new batch. Appellant acknowledged 

she understood and agreed. J.L. saw appellant getting her own files and reminded her not to do

that and reiterated that appellant should not perform any lifting, and appellant stated that she 

understood and nodded in agreement. On October 24, 2017 she was told that appellant stated that 

she fell from a step stool when she tried to put a case back onto the file shelf. J.L. immediately 

went to see appellant, who was sitting at her desk. She asked if appellant was okay or wanted to 

see the nurse, and appellant stated that she did not know. A few moments later J.L. reminded 

appellant that she had told her on several occasions that she was not supposed to retrieve or return 

her own cases, and appellant stated that she was aware of that. J.L. again asked if she needed 

anything and appellant again stated that she did not know.

In a February 8, 2018 response to OWCP’s development questionnaire, appellant, through 

her representative, indicated that she needed to use the two-tiered step stool to reach the top shelf 

of a five-tiered metal bookcase in order to return case files to their proper place. She indicated 

that the stool was provided by the employing establishment for this exact purpose. Appellant 

related that when she finished removing sticky tabs and staples from a file, she would place the 

file on a cart, and when she finished with all the files she would push the cart across the hall to the 

bookcase. She alleged that when she stepped up onto the stool to place the files on the top shelf 

she fell backward and landed on her left shoulder, which caused a whiplash reaction that caused 

the left side of her head to hit the floor. Appellant’s lower back and buttocks also hit the floor. 

She indicated that because she was in the process of putting a file away she was unable to use her 

hands to break her fall. She stated that there were three employees who heard her fall and saw her 

after she fell, but she could not get statements from them because she was terminated from her 

employment and could not return to her prior workplace. Appellant noted that immediately after 

falling she felt pain in her left shoulder that radiated into the left side of her neck and pain in her 

lower back that radiated into her lower extremities and the rest of her back. She related that she 

got up off of the floor a minute or two after her fall. Appellant noted that M.F. walked by and 

appellant told her that she was going to the nurses’ station because she fell and felt severe back 

pain. She went to the nurses’ station and was given pain medication and icepacks, and appellant 

remained there for two hours. Appellant then returned to her desk, filled out worker’s 

compensation forms, and went to an urgent care center. She also indicated that she had preexisting 

conditions due to six nonwork-related car accidents.

Dr. Blecha, in a February 12, 2018 medical report, indicated that appellant reported that 

her symptoms worsened. He conducted a physical examination and opined that appellant’s 

October 24, 2017 fall from a two-tiered stool directly caused the aggravation of her cervical and 
5

lumbar spondylosis and her occipital neuralgia. A February 12, 2018 duty status report (Form CA17) he noted that appellant was injured on October 24, 2017 and stated that she would be unable 

to work for two months. 

By decision dated June 27, 2018, OWCP denied appellant’s traumatic injury claim, finding 

that the evidence of record was insufficient to establish that she was injured in the performance of 

duty, as alleged. It noted that she did not provide any factual evidence in order to substantiate her 

claim.

On June 26, 2019 appellant, through her representative, requested reconsideration. In an 

accompanying letter, the representative asserted that OWCP failed to properly develop the factual 

evidence in the claim, as it accepted the allegations of the employing establishment as factual 

without any supporting evidence, in violation of FECA and OWCP’s procedure manual. He

alleged that since OWCP was the employing establishment, it failed to properly develop the 

evidence in order to protect itself. Appellant’s representative indicated that one of the reasons 

OWCP denied appellant’s claim was due to lack of witnesses; however, the law states that to 

establish that an injury occurred as alleged, eyewitnesses were not necessary, but an appellant’s 

statements must be consistent with the surrounding facts and circumstances and her subsequent 

course of action. He stated that appellant’s statements regarding her injury had been consistent

with the surrounding facts and circumstances, as she notified her supervisor, which her supervisor

acknowledged, sought medical treatment on the date of her injury, and provided medical 

documentation indicating that she sustained an injury when she fell. Appellant’s representative 

additionally noted that appellant provided a valid reason for her inability to provide witness 

statements from the witnesses she listed, namely that she was unable to access the employing 

establishment’s premises due to the termination of her employment. He stated that as OWCP is 

not a disinterested arbiter and shares the responsibility in the development of evidence to see that 

justice is done, it should have requested witness statements from the employing establishment, and 

he referred to a section of OWCP’s procedure manual indicating that witness statements can be 

obtained by a claimant or an employing establishment. Appellant’s representative also indicated 

that appellant’s supervisor, M.F., failed to provide any documentation indicating that appellant 

was restricted to sedentary duty, and that appellant stated that she was never told by supervisors to 

not engage in lifting, pushing, and pulling, as she never had those restrictions. He stated further

that the restrictions listed by appellant’s doctors in the additional medical evidence provided and

in the functional capacity evaluation did not include any restrictions on appellant’s ability to lift, 

push, or pull. The representative indicated that M.F. provided incorrect information on appellant’s 

CA-1 form when she indicated that appellant first received treatment on October 27, 2017, which

he indicated reflected the willingness of the employing establishment to provide incorrect 

information, which was a violation of federal law. He also indicated that the medical evidence 

submitted to date showed that appellant suffered an aggravation of her preexisting conditions.

In support of her reconsideration request, appellant submitted medical records that predated her alleged workplace fall, an October 3, 2016 functional capacity evaluation.

Appellant additionally submitted a May 30, 2017 e-mail from J.L. indicating that appellant 

would soon be pulling cases from files. J.L. stated that appellant would send an e-mail noting the 

last name and the last four (digits) of the files she pulled.
6

By decision dated September 11, 2019, OWCP denied further merit review of appellant’s 

claim. It found that her request for reconsideration neither raised substantive legal questions, nor 

included new and relevant evidence.

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 own motion or on application.4

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.5

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

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 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.8

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 reconsideration, appellant’s representative alleged that appellant’s statements regarding 

her injury were consistent with the surrounding facts and circumstances, as she notified her 

supervisor, which her supervisor acknowledged, sought medical treatment on the date of her 

injury, and provided medical documentation indicating that she sustained an injury when she fell. 

The representative alleged that appellant did not have to provide witness statements to establish 

her claim if her own allegations were consistent with the surrounding facts and circumstances. 

 

4 5 U.S.C. § 8128(a); H.A., Docket No. 18-1253 (issued April 23, 2020); see also 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).

5 20 C.F.R. § 10.606(b)(3); L.S., Docket No. 19-1790 (issued March 11, 2020); 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 § 10.607(a). The one-year period begins on the next day after the date of the originally 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 the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

7

Id. at § 10.608(a); see J.W., Docket No. 19-1795 (issued March 13, 2020); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); C.L., Docket No. 20-0410 (issued October 29, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
7

These assertions do not show a legal error by OWCP or constitute a new and relevant legal 

argument.9 These allegations are a reassertion of the facts which OWCP considered in weighing 

the evidence presented in the case and finding that appellant had not met her burden of proof. 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.10

Appellant’s representative additionally contended that appellant provided a valid reason 

for her inability to provide witness statements, namely that she was unable to access the employing 

establishment’s premises due to the termination of her employment. He asserted that OWCP 

should have requested that the employing establishment provide statements from additional 

witnesses. The representative, however, has not explained why appellant could not have otherwise 

contacted witnesses via other means outside of the workplace. This argument, therefore, lacks a 

reasonable color of validity.11 As such, appellant’s request for reconsideration did not show that 

OWCP erroneously applied or interpreted a specific point of law, and it did not advance a new and 

relevant legal argument not previously considered. Accordingly, appellant is not entitled to a 

review of the merits of her claim based on the first and second above-noted requirements under 20 

C.F.R. § 10.606(b)(3).

In support of her request for reconsideration appellant submitted medical records that predated her alleged workplace fall, an October 3, 2016 functional capacity evaluation, and a May 30, 

2017 e-mail from J.L. indicating that appellant would soon be pulling cases from files. The Board 

finds, however, that this evidence is not relevant to the underlying factual issue of the present case, 

i.e., whether appellant submitted probative factual evidence supporting that she fell on October 24, 

2017 as alleged. Thus, appellant is not entitled to a review of the merits of her claim based on the 

third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3).13 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).

 

9 See. Y.K., Docket No. 18-1167 (issued April 2, 2020). 

10 G.D., Docket No. 18-1665 (issued March 12, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

11 V.R., Docket No. 19-1761 (issued April 15, 2020); E.R., Docket No. 18-0446 (issued November 6, 2019).

12 M.B., Docket No. 19-0596 (issued August 6, 2019); see H.H., Docket No. 18-1660 (issued March 14, 2019).

13 D.M., Docket No. 18-1003 (issued July 16, 2020); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for 

reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will 

deny the request for reconsideration without reopening the case for a review on the merits).
8

ORDER

IT IS HEREBY ORDERED THAT the September 11, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board