United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.S., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE,

Scranton, PA, Employer

__________________________________________

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Docket No. 20-1090

Issued: September 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 April 27, 2020 appellant filed a timely appeal from an April 2, 2020 nonmerit decision 

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

from OWCP’s last merit decision, dated June 17, 2019, 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. 

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 April 26, 2018 appellant, then a 69-year-old slaughter inspector, filed a traumatic injury 

claim (Form CA-1) alleging that on that day he slipped and fell while exiting a freezer, injuring

 

1

5 U.S.C. § 8101 et seq.
2

his left knee, right shoulder, and right side of the body while in the performance of duty.2 On the 

reverse side of the claim form, the employing establishment checked a box marked “No” indicating 

that he was not in the performance of duty at the time of the alleged incident. It explained that 

while appellant was on the employing establishment premises during work hours, he was not 

performing his assigned duties or in the area in which he would have been performing his assigned 

duties/responsibilities at the time of the alleged employment incident. Appellant did not stop work. 

In April 27, 2018 progress notes, Dr. Christine M. Stroka, Board-certified in family 

medicine, noted that appellant fell at work on April 26, 2018, injuring his right shoulder and left 

knee. She conducted a physical examination and diagnosed right shoulder contusion, right 

shoulder rotator cuff syndrome, chronic bilateral low back pain with left-sided sciatica, protruding

lumbar disc, and bilateral foot drop. 

A May 4, 2018 right shoulder x-ray revealed some mild degenerative changes.

In May 14, 2018 progress notes, Dr. Steven A. Sluck, Board-certified in family medicine, 

noted that appellant fell at work, landing on his right shoulder. He diagnosed right shoulder joint 

pain, right shoulder syndrome, and obesity. In a medical note of even date, Dr. Sluck excused 

appellant from work indefinitely. 

Appellant, in a May 22, 2018 statement, asserted that he slipped and fell at work on 

April 26, 2018, striking his right shoulder on the floor. He noted having difficulty raising his arm 

upward from his side to any more than a 45 degree angle. Appellant continued to work on April 27, 

2018 and indicated that he could initially use his right arm with pain medication, but as a result of 

increasing pain in the right shoulder he had to primarily use his left hand. He contended that there 

was no doubt that his doctor believed his current shoulder condition was a direct result of the

alleged April 26, 2018 employment incident.

In support of his claim, appellant also submitted medical evidence predating the alleged 

April 26, 2018 employment incident. An April 9, 2018 magnetic resonance imaging (MRI) scan 

of the right shoulder revealed tendinopathy of the rotator cuff, small partial thickness tears of the 

distal supraspinatus and subscapularis tendons, acromioclavicular (AC) arthrosis, mild joint 

effusion, mild fluid in the subacromial subdeltoid bursa, a limited evaluation of the glenoid labrum 

due to motion degradation, as well as a questionable tear of the inferior labrum and a small cluster 

of inferior paralabral cysts. In April 13, 2018 progress notes, Dr. Sluck diagnosed right shoulder

rotator cuff syndrome, tearing of the right glenoid labrum, right shoulder joint pain, obesity, and 

hyperlipidemia. In April 23, 2018 progress notes, Dr. Shazad L. Shaikh, an orthopedic surgery 

specialist, noted that appellant experienced right shoulder pain from a January 2018 injury. He 

diagnosed right shoulder rotator cuff impingement syndrome and right osteoarthritis of the AC

joint and the glenohumeral joint.

A May 30, 2018 MRI scan of the right shoulder demonstrated stable high-grade articular 

surface tearing of the anterior right supraspinatus with associated moderate tendinopathy, stable 

mild right infraspinatus tendinopathy, and stable degenerative right labral tearing with associated 

 

2 Appellant has a previously accepted January 4, 2018 traumatic injury claim that was accepted for a left knee 

contusion and right thigh muscle strain under OWCP File No. xxxxxx517. OWCP has not administratively combined 

these files.
3

small inferior paralabral cyst formation. It also noted that the overall appearance of the rotator 

cuff was unchanged from the April 9, 2018 right shoulder MRI scan. 

In June 4, 2018 progress notes, Dr. Leslie A. Lyness, a neurosurgeon specialist, noted that 

appellant had fallen seven times within the past years. She diagnosed multi-level lumbar

degenerative disc disease with radiculopathy and functional quadriceps weakness. 

In June 25, 2018 progress notes, Victoria Nytch, a physician assistant, indicated that 

appellant previously fell in January and again “approx[imately]” May 2018.3 She noted that he

had mild shoulder pain from the January 2018 fall and diagnosed right high grade partial thickness 

of the rotator cuff, right biceps tendinitis, and right osteoarthritis of the AC joint and the 

glenohumeral joint. In a medical note of even date, Ms. Nytch indicated that appellant was 

scheduled for right shoulder surgery on July 3, 2018 and would need four to six months to recover. 

In a July 2, 2018 attending physician’s report (Form CA-20), Dr. Shaikh noted that 

appellant’s recent fall4 worsened his preexisting small partial rotator cuff tear from the 

January 2018 fall. He diagnosed high grade partial thickness and an incomplete rotator cuff tear. 

Dr. Shaikh opined that appellant’s recent fall advanced his preexisting rotator cuff tear to a point 

where it usually would not heal on its own and that repetitive activity with the right arm could 

make his condition worse.

In a July 3, 2018 development letter, OWCP informed appellant that his claim was initially 

accepted as a minor injury, but was now being formally considered because he had requested 

authorization for surgery. It advised him of the factual and medical evidence necessary to establish 

his claim and provided a questionnaire for his completion. In a separate letter of even date, OWCP 

requested additional information from the employing establishment. It afforded both parties 30 

days to provide the requested evidence.

In a July 6, 2018 response to OWCP’s questionnaire and in a July 18, 2018 statement, 

appellant reiterated that his injury occurred while in the performance of duty on April 26, 2018. 

In a July 13, 2018 letter, the employment establishment reiterated that appellant had no specific 

responsibilities or duties in the area where his injury occurred. 

By decision dated August 17, 2018, OWCP accepted that the April 26, 2018 employment 

incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that 

the evidence of record was insufficient to establish that the diagnosed medical conditions were 

causally related to the accepted April 26, 2018 employment incident. 

In a July 12, 2018 letter, Dr. Shaikh noted that appellant was seen on April 23, 2018 for 

right shoulder pain caused by a fall in January 2018. He indicated that he was seen again on 

June 25, 2018 after falling for the second time in April, which worsened his shoulder pain. 

Dr. Shaikh opined that the May 30, 2018 MRI scan showed progression of appellant’s rotator cuff 

tear to a high grade rotator cuff tear. He explained that a repetitive shoulder motion could also 

 

3

In a July 9, 2018 letter,Ms.Nytch noted that appellant’s date of injury was incorrectly listed as May 2018 when 

it should have beennoted as April2018. 

4 OWCP subsequently received another copy ofDr.Shaikh’s July 2, 2018 Form CA-20. The report was identical 

to his July 2, 2018 report except that the date of injury was corrected from May to April2018.
4

cause the progression of his rotator cuff tear. Dr. Shaikh indicated that appellant underwent 

surgery on July 3, 2018. 

On August 28, 2018 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. 

In a September 6, 2018 statement, appellant explained that his previous January 2018 fall

occurred when he slipped on unseen black ice and fell while performing an ante-mortem 

inspection. 

In an October 24, 2018 letter, Dr. Shaikh reiterated that appellant had been under his care 

since April 23, 2018 for right shoulder pain as a result of a work-related fall in January 2018. He 

reported that he fell again on April 26, 2018, reinjuring his right shoulder. Dr. Shaikh repeated 

that the May 30, 2018 MRI scan demonstrated progression of a rotator cuff tear. He indicated that 

appellant was recovering well from his July 3, 2018 surgery and expected to return to full-time 

work on October 29, 2018. In an undated letter, Dr. Shaikh again opined that there was a clear 

progression of the rotator cuff tear due to the April 26, 2018 fall. 

In a November 20, 2018 memorandum of telephone call (Form CA-110), appellant 

explained that after his previous January 3, 2018 fall he did not initially experience right shoulder 

pain until March 2018. He indicated that he had no other injury to the right shoulder prior to

January 2018.

By decision dated November 27, 2018, OWCP’s hearing representative set aside the 

August 17, 2018 decision and remanded the case for referral to an OWCP district medical adviser 

(DMA) to review the medical evidence of record and requested an explanation as to whether there 

was causal relationship between appellant’s diagnosed progression of right shoulder tears and the 

accepted April 26, 2018 employment incident.

5

In a July 3, 2018 surgery note, Dr. Shaikh indicated that appellant underwent surgery 

including right shoulder arthroscopy (rotator cuff repair), biceps tenotomy, extensive debridement, 

subacrominal decompression with acromioplasty, and bone marrow aspiration.

On December 18, 2018 OWCP forwarded a statement of accepted facts (SOAF) and 

appellant’s medical record to Dr. Kevin Kuhn, a Board-certified orthopedic surgeon serving as the 

DMA, for an opinion as to whether appellant’s preexisting conditions progressed to the diagnosis 

of right rotator cuff tears and whether the July 3, 2018 right shoulder surgery was warranted. 

In his January 13, 2019 report, Dr. Kuhn reviewed the SOAF and medical records, 

including the April 9 and May 30, 2018 MRI scans of the right shoulder, and opined that there was 

no significant objective change in the magnitude or quality of the supraspinatus or subscapularis 

partial thickness tears to indicate that the accepted April 26, 2018 employment incident resulted in 

progression of appellant’s preexisting conditions as his tears were already present before his 

 

5 The hearing representative noted that the medical evidence did not support that appellant sustained a right shoulder 

injury as a result of the previously accepted January 4, 2018 employment injury.
5

April 26, 2018 injury. He concluded that the July 3, 2018 surgery was not related to any pathology 

caused by the accepted April 26, 2018 employment incident. 

By decision dated January 28, 2019, OWCP denied appellant’s traumatic injury claim, 

finding that the medical evidence of record was insufficient to establish causal relationship 

between his diagnosed conditions and the accepted April 26, 2018 employment incident. It noted 

that medical treatment was not authorized and any prior authorization should be terminated. 

In a February 21, 2019 letter, Dr. Shaikh reiterated that appellant had been under his care 

since April 23, 2018 and noted that he initially sustained a right shoulder injury from a previous 

work-related fall in January 2018. He indicated that the May 30, 2018 right shoulder MRI scan 

demonstrated a clear progression of the tear in size warranting surgical intervention. Dr. Shaikh

explained that a radiology report may not take into account the finer detail of the tear progression 

that would distinguish between tears that may or may not need surgery, which would require a 

surgeon to determine. In an undated supplemental letter, he noted that the May 30, 2018 MRI scan 

revealed new tears that were not initially apparent on the April 9, 2018 MRI scan. Dr. Shaikh

opined that the April 26, 2018 fall was “a sufficient mechanism to aggravate and cause tear 

progression” of appellant’s right shoulder rotator cuff. 

OWCP received a compact disc read-only memory (CD ROM) and a digital video disc 

(DVD) containing images from previously submitted diagnostic studies. 

On March 21, 2019 appellant requested reconsideration. 

By decision dated June 16, 2019, OWCP denied modification of its January 28, 2019 

decision. 

On January 3, 2020 appellant again requested reconsideration. 

In a December 12, 2019 supplemental letter to his February 21, 2019 letter, Dr. Shaikh 

clarified that the accepted April 26, 2018 employment incident was “the sufficient mechanism to 

aggravate and cause tear progression of his right rotator cuff.”

In an undated statement, appellant summarized evidence submitted and argued that the 

hearing representative had already accepted that Dr. Shaikh’s reports showed causal relationship 

and that his surgery was related to one of his accepted employment traumas, including the one he 

experienced in January 2018.

By decision dated April 2, 2020, OWCP denied appellant’s request for reconsideration of 

the merits of the claim under 5 U.S.C. § 8128(a), finding that Dr. Shaikh’s December 12, 2019 

letter, as well as appellant’s statement, were substantially similar to evidence previously of record.
6

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.6

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.7

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

OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.9 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.10

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).

Appellant has not shown that OWCP erroneously applied or interpreted a specific point of 

law; nor has he advanced a relevant legal argument not previously considered by OWCP. In 

support of his request for reconsideration, appellant submitted a statement asserting that the 

hearing representative in the November 27, 2018 decision had already accepted that the medical 

evidence established causal relationship between the progression of his preexisting right shoulder 

condition and the accepted April 26, 2018 employment incident. However, the Board notes that 

the hearing representative did not make any findings on causal relationship and instead remanded 

the case to OWCP for referral to a DMA for an opinion on whether appellant’s right shoulder 

conditions were caused or aggravated by the accepted employment incident. Thus, appellant has 

not provided any relevant legal argument not previously considered by OWCP. Therefore, he is 

 

6

Id. at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued 

February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).

7

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N., 

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

8

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

9

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

10 Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
7

not entitled to a review of the merits of his claim based on the first and second above-noted 

requirements under section 10.606(b)(3).11

The underlying issue in the case is whether appellant has provided sufficient medical 

evidence to establish that he sustained a shoulder condition of an aggravation of his preexisting 

shoulder conditions as a result of the accepted April 26, 2018 employment incident.

Appellant’s request for reconsideration was accompanied by a December 12, 2019

statement from Dr. Shaikh who opined that the accepted April 26, 2018 employment incident was 

“the sufficient mechanism” to aggravate and cause tear progression of his right rotator cuff. While 

this statement is new, it is not relevant as it is substantially similar to his February 21, 2019 letter

finding that the accepted April 26, 2018 employment incident was “a sufficient mechanism” to 

aggravate and cause tear progression of appellant’s right rotator cuff. Providing additional 

evidence that either duplicates or is substantially similar to evidence already in the case record 

does not constitute a basis for reopening a case.12 As appellant did not provide relevant and 

pertinent new evidence, he is also not entitled to a merit review based on the third requirement 

under section 10.606(b)(3).13 

The Board, accordingly, finds that appellant did not meet 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. 14

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).

 

11 A.G., Docket No. 20-0290 (issued June24, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

12 See G.J., Docket No. 20-0071 (issued July 1, 2020); V.Q., Docket No. 19-1309 (issued January 3, 2020); 

Eugene F. Butler, 36 ECAB 393, 398 (1984).

13 Supra note 7 at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

14 D.G., Docket No. 19-1348 (issued December 2, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the April 2, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 9, 2021

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