United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer

__________________________________________

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Docket No. 20-0336

Issued: May 13, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 3, 2019 appellant filed a timely appeal from September 20 and November 7, 

2019 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated April 4, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 June 25 and October 24, 2019 

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

FACTUAL HISTORY

This case has previously been before the Board on different issues.3 The facts and 

circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by 

reference. The relevant facts are as follows.

OWCP accepted that on May 27, 1987 appellant, then a 48-year-old mail handler, sustained 

a low back strain, chronic pain syndrome, and aggravation of arachnoiditis radiating into his lower 

extremities when pulling a mail tub while in the performance of duty on May 27, 1987. It assigned 

OWCP File No. xxxxxx584.4 In 1998, OWCP accepted under a separate occupational disease 

claim, assigned OWCP File No. xxxxxx561, that he sustained an employment aggravation of 

spinal stenosis of the cervical and lumbar regions.

5 Appellant underwent OWCP-authorized 

surgeries, including cervical discectomy/fusion surgery in 1999 and decompressive lumbar 

laminectomy in 2001.

By decision dated August 19, 2016, OWCP granted appellant a schedule award for three 

percent permanent impairment of his right upper extremity. It determined that he had 41 percent 

permanent impairment of his left upper extremity and 10 percent permanent impairment of each 

lower extremity, for which he previously received schedule award compensation. 

In a January 12, 2017 report, Dr. John Meding, a Board-certified orthopedic surgeon, 

indicated that appellant reported that he fell on his left knee in December 2016 after receiving an 

epidural injection.6 He noted that x-rays showed osteoarthritis of both knees. 

In mid-2017, appellant asserted that he sustained a left knee injury as a consequence of his 

accepted May 27, 1987 employment injury because he fractured his left knee due to a January 3, 

2017 fall at home, which he believed occurred due to residuals of the back conditions accepted in 

 

3 Docket No. 10-1672 (issued June 6, 2011); Docket No. 07-2042 (issued June 3, 2008); Docket No. 05-1125 

(issued July 20, 2006).

4 Under a separate occupational disease claim, to which OWCP assigned OWCP File No. xxxxxx676, appellant 

also claimed that he sustained conditions of the neck and upper extremities. OWCP denied this claim by decisions 

dated September 16, 1996, and March 18 and September 10, 1997. 

5 OWCP administratively combined OWCP File Nos. xxxxxx584, xxxxxx676, and xxxxxx561, designating OWCP 

File No. xxxxxx584 as the master file. 

6 Appellant later submitted a December 1, 2016 report in which Dr. Weldon Egan, a Board-certified 

anesthesiologist, described an epidural injection he applied to appellant’s back on that date. 
3

connection with the May 27, 1987 employment injury.7 He further asserted that his left knee 

fracture necessitated a total left knee replacement, which he underwent on May 16, 2017.

OWCP referred appellant’s case record along with a statement of accepted facts (SOAF) 

and a series of questions to Dr. William Tontz, Jr., a Board-certified orthopedic surgeon serving 

as an OWCP district medical adviser (DMA), and requested that he evaluate appellant’s left knee 

condition. In an August 30, 2017 report, Dr. Tontz indicated that x-rays of the left knee did not 

show a patellar fracture. 

In June 2018, OWCP referred appellant for a second opinion examination to Dr. Thomas 

Cittadine, a Board-certified orthopedic surgeon. It provided Dr. Cittadine with the case record, 

including a SOAF, and requested that he evaluate the permanent impairment of appellant’s 

extremities. Appellant did not appear for the examination scheduled for July 17, 2018.

In a January 16, 2019 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of his consequential injury claim. It afforded 

him 30 days to respond. 

In response, appellant submitted a February 25, 2019 statement in which he argued that he 

sustained a left knee injury as a consequence of his accepted May 27, 1987 employment injury 

because he fractured his left knee due to a January 3, 2017 fall at home, which he believed that 

occurred due to residuals of the back conditions accepted in connection with the May 27, 1987 

employment injury. He also claimed that his left knee fracture necessitated the total left knee 

replacement, which he underwent on May 16, 2017. Appellant also asserted that a December 1, 

2016 epidural injection weakened his legs and contributed to his January 3, 2017 fall. He claimed 

that OWCP improperly handled his consequential injury claim and that employing establishment 

participated in physician shopping as a means of obtaining unfavorable medical opinions. 

Appellant asserted that it was improper for Dr. Tontz, the DMA, to find that appellant did not have 

a left knee fracture, and appellant asserted that Dr. Tontz violated fiduciary rules. He further 

alleged that he did not attend a second opinion examination regarding the evaluation of his 

permanent impairment because OWCP failed to fully discuss his medical condition after the 

May 27, 1987 low back injury in the SOAF, which was provided to the examiner. Appellant 

indicated that the reports of Dr. Meding demonstrated that appellant had a left knee fracture and 

appellant questioned the ability of an OWCP claims examiner to adjudicate consequential injury 

claims. He claimed that he had established all the elements of a consequential injury as explained 

in the Board cases and legal treatises. Appellant asserted that OWCP incorrectly calculated his 

August 19, 2016 schedule award and refused to correct the calculations. He maintained that he 

would attend a second opinion examination if the examiner were provided accurate facts about his 

medical condition. 

Appellant submitted reports of Dr. Meding, including a report of the May 16, 2017 total 

left knee replacement surgery and medical progress notes dated between May 13, 2008 and 

January 10, 2019. He also submitted a left knee magnetic resonance imaging (MRI) scan dated 

 

7 Appellant also asserted that the December 1, 2016 epidural injection weakened his legs and contributed to his 

January 3, 2017 fall. It is noted that the January 12, 2017 report of Dr. Meding indicated that appellant reported falling 

on his left knee in December 2016. 
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April 10, 2017, left knee x-rays findings dated June 11 and November 1, 2018, and a left knee 

bone scan dated November 1, 2018. In an April 27, 2017 report, Dr. Meding indicated that a recent 

MRI scan of appellant’s left knee showed full-thickness lesions about the medial femoral condyle 

and the patella femoral articulation. 

By decision dated April 4, 2019, OWCP denied appellant’s claim for a consequential left 

knee injury causally related to his accepted May 27, 1987 employment injury. 

On June 25, 2019 appellant requested reconsideration of the April 4, 2019 decision. 

In a June 21, 2019 statement, appellant claimed that OWCP engaged in obstruction with 

respect to his consequential injury claim and that the employing establishment participated in 

physician shopping as a means of obtaining unfavorable medical opinions. He asserted that it was 

improper for Dr. Tontz, the DMA, to find that appellant did not have a left knee fracture and 

asserted that Dr. Tontz violated fiduciary rules. Appellant further alleged that he refused to attend 

a second opinion examination because OWCP failed to fully discuss his medical condition after 

the May 27, 1987 low back injury in the SOAF that was provided to the examiner. He indicated 

that the reports of Dr. Meding demonstrated appellant had a left knee fracture and he questioned 

the ability of an OWCP claims examiner to adjudicate consequential injury claims. Appellant 

asserted that pain and weakness from his May 27, 1987 employment injury and the effects of 

epidural injections caused his January 3, 2017 fall, which in turn caused a left knee injury that 

necessitated total left knee replacement surgery. He claimed that he had established all the 

elements of a consequential injury as explained in the Board cases and legal treatises. Appellant 

claimed that his left knee injury and left knee surgery were “direct and natural” consequences of 

his original employment injury. He asserted that OWCP incorrectly calculated his August 19, 

2016 schedule award and refused to correct the calculations. Appellant requested that OWCP send 

him to a second opinion examination concerning his claimed consequential injury. 

In a July 16, 2019 statement, appellant again asserted that pain and weakness from his 

May 27, 1987 employment injury and the effects of epidural injections caused his January 3, 2017 

fall, which in turn caused a left knee injury that necessitated total left knee replacement surgery. 

He maintained that he would attend a second opinion examination if the examiner were provided 

accurate facts about his medical condition. Appellant again questioned the evaluation of Dr. Tontz 

and alleged that OWCP engaged in obstruction and that the employing establishment engaged in 

doctor shopping. He continued to assert that the medical evidence of record was sufficient to 

establish all the elements of a consequential injury. 

By decision dated September 20, 2019, OWCP denied appellant’s June 25, 2019 request 

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

On October 24, 2019 appellant requested reconsideration of the September 20, 2019 

decision. 

In a September 29, 2019 statement, appellant asserted that OWCP did not give a credible 

reason for why his January 3, 2017 fall was not a consequence of the accepted May 27, 1987 

employment injury. He again asserted that OWCP effectively denied him an opportunity to attend 

a second opinion examination because it failed to fully discuss his medical condition after the 
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May 27, 1987 low back injury in the SOAF that was provided to the examiner. Appellant claimed 

that OWCP claims examiners failed to consult the results of medical examinations, which preceded 

his federal employment. He again questioned the abilities and credentials of an OWCP claims 

examiner and asserted that OWCP improperly attributed his January 3, 2017 fall to nonworkrelated osteoarthritis. Appellant claimed that OWCP violated the Health Insurance Portability and 

Accountability Act (HIPAA) by improperly withholding records. 

In an October 24, 2019 statement, appellant again maintained that he would attend a second 

opinion examination regarding his consequential injury claim if the examiner were provided 

accurate facts about his medical condition. He continued to question the opinion of Dr. Tontz, the 

DMA, and to allege that an OWCP claims examiner was not knowledgeable enough to evaluate 

his consequential injury claim. Appellant again questioned the accuracy and completeness of the 

SOAF’s contained in the case record, criticized OWCP’s handling of second opinion 

examinations, and claimed that OWCP improperly withheld part of the case record from him. He 

further discussed the medical mechanism of his claimed consequential injury, explained his duties 

as a mail handler, and detailed his accepted medical conditions and medical treatment. Appellant 

questioned why OWCP did not accept that his employment-related lumbar stenosis condition 

contributed to his January 3, 2017 fall. He asserted that the medical evidence of record established 

a consequential injury. 

By decision dated November 7, 2019, OWCP denied appellant’s October 24, 2019 request 

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

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 or her own motion or on application.8

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.9

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

OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens 

 

8 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); 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).

9 20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

10 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 2020). 

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.
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and reviews the case on its merits.11 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.12

The Board has held that the submission of evidence or argument which repeats or duplicates 

evidence or argument already in the case record13 and the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case.14 

ANALYSIS

The Board finds that OWCP properly denied appellant’s June 25 and October 24, 2019 

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

Considering appellant’s June 25, 2019 reconsideration request first, the Board finds that on 

that date he filed a timely request for reconsideration of an April 4, 2019 decision denying his 

consequential injury claim.

15

 The Board finds, however, that he neither established that OWCP 

erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal 

argument not previously considered by OWCP. 

Along with his June 25, 2019 reconsideration request, appellant submitted June 21 and 

July 16, 2019 statements in which he discussed his belief that residuals of his May 27, 1987 

employment injury, as well as treatment for that injury, weakened his legs such that he experienced 

a fall at home on January 3, 2017. He further alleged that he fractured his left knee due to the fall 

and that this condition necessitated a total left knee replacement on May 16, 2017. Appellant 

provided an extensive discussion of his belief that OWCP and, to a lesser extent, the employing 

establishment, engaged in improper actions and generally misinterpreted the medical evidence of 

record. He criticized the evaluation conducted by Dr. Tontz (the DMA), asserted that Dr. Tontz 

violated fiduciary rules, challenged the competency of an OWCP claims examiner, criticized 

OWCP’s handling of a referral to a second opinion examiner on an unrelated schedule award 

matter, and claimed that OWCP incorrectly calculated his August 19, 2016 schedule award. 

Appellant asserted that the existing medical evidence of record established his consequential injury 

claim. 

However, OWCP had previously considered and rejected these same arguments when it 

denied appellant’s claim. The Board finds that his June 21 and July 16, 2019 statements are 

substantially similar to his previously submitted February 25, 2019 statement that was reviewed 

by OWCP prior to issuing its April 4, 2019 decision denying his consequential injury claim. The 

 

11 Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

12 Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

13 N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

14 M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper l, 31 ECAB 224, 225 (1979).

15 See supra note 10.
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submission of these statements would not require reopening the case for merit review because 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.16 

Accordingly, the Board finds that appellant is not entitled to a review of the merits based on either 

the first or second requirement under 20 C.F.R. § 10.606(b)(3) with respect to the June 25, 2019 

reconsideration request.

The Board notes that the underlying issue of the present case is medical in nature, i.e., 

whether appellant submitted sufficient medical evidence to establish a left knee condition (and 

resultant left knee surgery) as a consequence of his accepted May 27, 1987 employment injury. 

However, appellant did not submit any medical evidence in connection with his June 25, 2019 

reconsideration request. Therefore, he also failed to satisfy 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) with respect to his June 25, 2019 reconsideration request. Pursuant to 

20 C.F.R. § 10.608, OWCP properly denied merit review.

In considering appellant’s October 24, 2019 reconsideration request, the Board finds that 

on that date he filed a timely request for reconsideration of the April 4, 2019 decision denying his 

consequential injury claim.

17

 The Board finds, however, that he neither established that OWCP 

erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal 

argument not previously considered by OWCP with respect to this reconsideration request. 

Appellant submitted September 29 and October 24, 2019 statements in which he discussed 

his consequential injury claim. However, the Board finds that his September 29 and October 24, 

2019 statements are substantially similar to his previously submitted statements, which were 

reviewed and rejected by OWCP. With respect to the repetitious arguments contained in the 

September 29 and October 24, 2019 statements, the Board has held, as previously noted, 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.18 The Board notes that the 

September 29 and October 24, 2019 statements contain some arguments not previously presented, 

however, these unsupported arguments are not relevant to the underlying medical issue of the 

present case. For example, appellant claimed without explanation or supporting evidence that 

OWCP violated HIPAA regulations by withholding medical documents. He also asserted OWCP 

claims examiners failed to consult the results of medical examinations that preceded his federal 

employment, but he did not further explain this argument or its relevance to his consequential 

injury claim. The Board has held that the submission of evidence or argument which does not 

address the particular issue involved does not constitute a basis for reopening a case.19 

Accordingly, the Board finds that appellant is not entitled to a review of the merits based on either 

 

16 See supra note 13.

17 See supra note 10.

18 See supra note 13.

19 See supra note 14.
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the first or second requirement under 20 C.F.R. § 10.606(b)(3) with respect to the October 24, 

2019 reconsideration request.

The Board notes that appellant did not submit any medical evidence in connection with his 

October 24, 2019 reconsideration request. Therefore, appellant also failed to satisfy the third 

requirement under 20 C.F.R. § 10.606(b)(3). The Board accordingly finds that he has not met any 

of the requirements of 20 C.F.R. § 10.606(b)(3) with respect to his October 24, 2019 

reconsideration request. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that OWCP properly denied appellant’s June 25 and October 24, 2019 

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

ORDER

IT IS HEREBY ORDERED THAT the November 7 and September 20, 2019 decisions 

of the Office of Workers’ Compensation Programs are affirmed.

Issued: May 13, 2021

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