United States Department of Labor

Employees’ Compensation Appeals Board

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M.D., Appellant

and

SOCIAL SECURITY ADMINISTRATION,

New York, NY, Employer

__________________________________________

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Docket No. 20-0126

Issued: September 11, 2020

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 21, 2019 appellant, through counsel, filed a timely appeal from a 

September 24, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days has elapsed from the last merit decision dated March 21, 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 over the merits of this case.3

 

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.

3 The Board notes that, following the September 24, 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 

additional 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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On November 16, 2018 appellant, then a 46-year-old legal assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on November 15, 2018 she sustained a back injury when she 

reached into her overhead cubicle and felt back pain while in the performance of duty.4 She did 

not initially stop work. 

In a November 20, 2018 report, Dr. Taufiq Azamy, a neurologist, noted appellant’s history 

of injury and physical examination findings. He indicated that she was disabled from work. 

Dr. Azamy opined, within a reasonable degree of medical certainty, that the employment injury 

was a competent provocative cause of appellant’s disability and, thus, “there is causal 

relationship.”

A November 27, 2018 magnetic resonance imaging (MRI) scan of the lumbar spine 

interpreted by Dr. Mark Lodespoto, a Board-certified diagnostic radiologist, revealed lumbar 

multilevel discopathy, L3-4 and L4-5 herniations, L2-3 and L5-S1 annular bulges, spinal canal 

and nerve root impingement, conus preserved, discogenic end plate irregularities, hypolordosis, 

minimal dextroscloliosis, and no gross lesions.

In a December 3, 2018 report, Dr. Azamy advised that an MRI scan of appellant’s lumbar 

spine revealed multiple herniated discs. He diagnosed lumbar spine herniated disc, rule out 

lumbosacral radiculopathy, and lumbar spine sprain/strain.

Dr. Azamy treated appellant on December 17, 2018 and diagnosed lumbar spine herniated 

disc, rule out lumbosacral radiculopathy, lumbar sprain/strain. He recommended physical therapy 

and completed a disability certificate, which indicated that appellant was medically disabled from 

work for two more weeks. In progress reports dated December 28, 2018 and January 11, 2019,

Dr. Azamy continued to note appellant’s diagnoses and continued to place appellant off work.

In a development letter dated January 22, 2019, OWCP noted that when appellant’s claim 

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

work, payment of a limited amount of medical expenses was administratively approved. However, 

the claim was being reopened. OWCP advised appellant of the deficiencies of her claim and 

instructed her as to the factual and medical evidence necessary to establish her claim. It provided 

her a questionnaire to complete regarding the circumstances of the claimed November 15, 2018 

employment incident. OWCP afforded appellant 30 days to submit the necessary evidence.

Appellant provided a February 8, 2019 statement describing the claimed employment

incident. She reiterated that she was reaching for something overhead in her work cubicle when 

 

4 Appellant has a prior claim for a March 20, 2012 traumatic injury accepted for sprain of back, lumbar region under 

OWCP File No. xxxxxx913. Her claims have not been administratively combined. 
3

she felt something pull in her lower back, as if she strained it. Appellant noted shooting pain that 

felt like sciatic pain radiating down to both legs, especially her right leg.

Dr. Azamy continued to treat appellant and noted diagnoses of lumbar spine herniated disc, 

rule out lumbar radiculopathy, and lumbar spine sprain/strain. He related that she remained 

disabled in a January 25, 2019 report, January 26, 2019 disability certificate, and a February 8, 

2019 report and disability certificate. In a February 8, 2019 report, Dr. Azamy also reiterated his 

opinion that “with a reasonable degree of medical certainty, the injury of [appellant] is a competent 

provocative cause of the impairment and disability and in my opinion there is causal relationship.”

Dr. Azamy, in a March 4, 2019 report, noted that appellant had been under his care for 

several years for lower back pain, which was a work-related condition. He indicated that she 

continued to have lower back pain radiating to both legs and that the pain was getting worse with 

prolonged sitting, standing, lifting, and bending. Dr. Azamy opined that appellant was unable to 

work for the last four months due to exacerbation of her lower back pain caused by a new workrelated injury. He indicated that, in addition to appellant’s low back symptoms, she also suffered 

from fibromyalgia and had been medically disabled from work since November 15, 2018.

In a March 21, 2019 decision, OWCP accepted that the November 15, 2018 incident 

occurred, as alleged; however, it denied the claim, finding that the medical evidence of record was 

insufficient to establish that appellant’s lumbar conditions were causally related to the accepted 

November 15, 2018 employment incident.

On June 11, 2019 appellant, through counsel, requested reconsideration. Counsel argued 

that the evidence of record was sufficient to establish the claim. He noted that appellant’s treating 

physician, Dr. Azamy, treated appellant on November 20, 2018 and recommended an MRI scan. 

Counsel advised that she was disabled from work, provided diagnoses, and opined “clearly and 

unequivocally that with a reasonable degree of medical certainty, that the injury suffered by 

[appellant] is the provocative cause of her impairment and disability.” He also referred to

Dr. Azamy’s March 4, 2019 report and argued that he “could not be any clearer, or more 

unequivocal regarding causal relationship.” Counsel argued that to require appellant to remove 

“all possible doubt” would violate appellant’s rights. He further argued that appellant had a 

preexisting lower back condition that was established as work related under OWCP File No. 

xxxxxx913; therefore, current exacerbation of that condition was work related as well. No 

additional medical evidence was received.

By decision dated September 24, 2019, OWCP denied appellant’s request for 

reconsideration of the merits of the claim.
4

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.5

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.6

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

OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.8 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.9

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 counsel argued that the November 20, 2018 and March 4, 2019 reports 

from Dr. Azamy could not be any clearer, or more unequivocal regarding causal relationship. He 

further argued that and requiring appellant to remove “all possible doubt” would violate her rights. 

Counsel noted that appellant had established a preexisting lower back condition as work related 

under OWCP File No. xxxxxx913. The medical reports cited by counsel were previously 

considered by OWCP in the March 21, 2019 merit decision dated. Counsel’s arguments regarding 

the sufficiency of the medical evidence were therefore considered by OWCP in its prior decision. 

As the Board has held, evidence or argument that repeats or duplicates evidence previously of 

 

5 5 U.S.C. § 8128(a); see A.H., Docket No. 19-1731 (issued March 23, 2020); see L.D., Docket No. 18-1468 (issued 

February 11, 2019); 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).

6 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

7

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

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of the merit 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.

8

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

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
5

record has no evidentiary value and does not constitute a basis for reopening a case.10 Appellant’s 

request for reconsideration did not show that OWCP erroneously applied or interpreted a specific 

point of law, nor did it advance a relevant legal argument not previously considered by OWCP. 

Accordingly, appellant is not entitled to a review of the merits of her claim based on the first and 

second above-noted requirements under 29 C.F.R. § 10.606(b)(3).11

No additional evidence was received with appellant’s request for reconsideration. As 

appellant did not submit any relevant and pertinent new medical evidence with her request for 

reconsideration, she is not entitled to a merit review based on the third requirement under 20 C.F.R. 

§ 10.606(b)(3).

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.

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 September 24, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 11, 2020

Washington, DC

Alec J. Koromilas, 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

 

10 B.O., Docket No. 20-0156 (issued May 13, 2020); D.K., 59 ECAB 141 (2007).

11 See C.B., Docket No. 19-0464 (issued May 22, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).