United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

DEPARTMENT OF THE AIR FORCE,

TINKER AIR FORCE BASE, OK, Employer

__________________________________________

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Docket No. 21-1267

Issued: February 1, 2022

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 19, 2021 appellant filed a timely appeal from a May 12, 2021 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days has elapsed 

from the last merit decision dated May 28, 2020 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.

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).

1 The Board notes that appellant’s Application for Review(AB-1 Form) also indicates that she is appealing from a 

purported March 30, 2019 OWCP decision. The case record, however, does not contain a final adverse decision of 

that date. The most recent final adverse decision of OWCP is dated May 12, 2021.

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 22, 2018 appellant, then a 57-year-old human resources specialist, filed an 

occupational disease claim (Form CA-2) alleging that she was diagnosed as having scabies from 

her neck to her buttocks in May 2016 and having Ekbom’s syndrome in December 2017 as a result 

of her exposure to a coworker’s daughter who had scabies. She noted that she first became aware 

of her conditions on May 26, 2016 and realized their relationship to her federal employment on 

May 26, 2016. Appellant stopped work on January 8, 2018.

In support of her claim, appellant submitted factual and medical evidence.

In a May 1, 2018 memorandum, the employing establishment controverted the claim, 

contending, that appellant did not establish that she was exposed to an infectious condition while 

in the performance of duty and failed to submit medical evidence establishing a diagnosis of 

Ekbom’s syndrome by a qualified physician.

OWCP, in a development letter dated May 10, 2018, informed appellant of the deficiencies 

in her claim. It advised her of the type of factual and medical evidence necessary to establish her 

claim and provided a factual questionnaire for her completion. In a separate development letter of 

even date, OWCP also requested that the employing establishment provide additional information 

concerning appellant’s claim. It afforded both parties 30 days to respond.

On June 1, 2018 appellant responded to OWCP’s development letter. She reiterated her 

history of injury and diagnoses of scabies and Ekbom’s syndrome. Appellant claimed that her 

conditions had worsened.

OWCP subsequently received narrative statements dated June 6 and 11, 2018 from 

appellant’s coworkers, S.S. and R.J.E. They noted that appellant informed them that she had been

bitten around her feet and ankles while sitting in her cubicle at work. Appellant showed them a 

tacky strip and a plain white sheet of paper thatshe had placed at her bare feet in her cubicle, which 

had black specs and dots moving around.

OWCP also received medical evidence, including a June 12, 2018 report by Dr. John Ellis, 

an attending Board-certified family practitioner. Dr. Ellis noted appellant’s history of injury that 

in June 2016 she was exposed to a coworker’s daughter who had scabies. He also noted her history 

of medical treatment. Dr. Ellis reviewed medical records, provided examination findings, and 

diagnosed scabies, infestation of the skin by human itch mite, Scarpotes scabiel. He opined that 

the diagnosed condition was contributed to, aggravated and/or caused by appellant’s employment.

In a June 4, 2018 report, Dr. Erika E. Breedlove, a Board-certified family practitioner,

noted appellant’s history that two years ago she was diagnosed as having scabies for which she 

received medical treatment. She diagnosed Ekbom’s delusional parasitosis and advised that 

appellant was incapable of performing her work duties due to her diagnosed conditions.

By decision dated March 20, 2019, OWCP denied appellant’s occupational disease claim, 

finding that she had not submitted a rationalized medical opinion explaining how her diagnosed 

conditions were causally related to the accepted employment factors/exposure.
3

OWCP continued to receive medical evidence, including additional reports by Dr. Ellis. In 

a March 26, 2019 report and a June 17, 2019 addendum report to his June 12, 2018 report, Dr. Ellis 

reiterated his prior opinion that appellant’s scabies condition was caused by her accepted 

employment exposure.

On July 12, 2019 appellant, through then-counsel, requested reconsideration of the 

March 20, 2019 decision. Then-counsel contended that Dr. Ellis’ March 26, 2019 report was 

rationalized and sufficient to establish causal relationship.

In an October 30, 2019 decision, OWCP denied modification of its March 20, 2019 

decision, finding that Dr. Ellis’ reports were insufficient to establish causal relationship between 

appellant’s accepted employment exposure and her diagnosed medical conditions.

On March 2, 2020 appellant, through then-counsel, requested reconsideration. Thencounsel reasserted that Dr. Ellis’ March 26 and June 12, 2019 reports were sufficient to establish 

causal relationship.

OWCP, by decision dated May 28, 2020, again denied modification of its prior decision, 

finding that there was no rationalized medical opinion evidence establishing causal relationship 

between appellant’s diagnosed conditions and her accepted employment exposure.

On February 1, 2021 then-counsel, requested reconsideration. He again argued that

Dr. Ellis’ March 26, 2019 report was well rationalized and sufficient to establish that appellant’s 

scabies was causally related to her accepted employment exposure. Then-counsel also submitted 

additional evidence.

In a July 1, 2020 report, Stephen Johnston, a certified physician assistant, noted appellant’s 

diagnoses of somatization disorder, generalized anxiety disorder, and single episode of mild major 

depressive disorder. He indicated that her severe physical symptoms and inability to perform her 

work duties were related to her May 2016 scabies infestation.

Duplicate copies of the June 8 and 11, 2018 narrative statements from S.S. and R.J.E.,

Dr. Breedlove’s June 4, 2018 report, andDr. Ellis’ June 12, 2018 and March 26, 2019 reports were 

resubmitted.

OWCP also received photographs of appellant’s skin condition.

By decision dated May 12, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a).
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. 3

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.4

A request for reconsideration must 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

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).

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law or advance a relevant legal argument not previously considered. While then-counsel repeated 

the contention that Dr. Ellis’ March 26, 2019 report was rationalized and established that 

appellant’s scabies condition was causally related to the accepted employment exposure, this 

argument and Dr. Ellis’ March 26, 2019 report were previously considered by OWCP in its prior 

decisions. The Board has held that evidence which repeats or duplicates evidence already in the 

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February11, 2019); W.C., 59 ECAB 372 (2008).

4

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).

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original 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 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 (iFECS). Id. at Chapter 2.1602.4b.

6

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020);M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see B.S., Docket No. 20-0761 (issued January29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
5

case record, has no evidentiary value, and does not constitute a basis for reopening a case .

8

 For 

these reasons, the Board finds that then-counsel’s assertion is insufficient to warrant reopening 

appellant’s claim for further review of the merits based on either the first or second requirement 

under 20 C.F.R. § 10.606(b)(3).9

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered by OWCP in support of her reconsideration request under 20 C.F.R. 

§ 10.606(b)(3). Appellant submitted a new report dated July 1, 2020 from Mr. Johnston, a certified 

physician assistant. The Board finds, however, that submission of this report did not require 

reopening appellant’s case for merit review because it has no probative value on the underlying 

issue on reconsideration. This report does not constitute competent medical evidence because 

physician assistants are not considered physicians as defined under FECA. 10 Therefore, this 

evidence is not relevant and is insufficient to require a merit review. 11

Appellant also submitted pictures of her skin. While this evidence is new, it is not relevant 

because it was not medical evidence from a physician and did not address the underlying issue on 

reconsideration, whether appellant had met her burden of proof to establish that her diagnosed skin 

conditions were causally related to the accepted employment exposure. The Board has held that 

the submission of evidence that does not address the underlying issue involved does not constitute 

a basis for reopening a case.12 Therefore, these photographs are insufficient to warrant a merit 

review.

Appellant resubmitted statements dated June 8 and 11, 2018 from Ms. Sipes and

Mr. Enriquez, respectively, a report dated June 4, 2018 from Dr. Breedlove, and reports dated 

June 12, 2018 and March 26, 2019 from Dr. Ellis. As noted above, the Board has held that 

evidence that repeats or duplicates evidence already in the case record, has no evidentiary value, 

and does not constitute a basis for reopening a case.

13

 As these statements and reports were 

previously considered and reviewed by OWCP in its prior decisions, they do not constitute relevant 

and pertinent new evidence. Therefore, this evidence is insufficient to require OWCP to reopen 

the claim for consideration of the merits. As appellant did not provide relevant and pertinent new 

8 L.G., Docket No. 21-0689 (issued October 25, 2021); P.G., Docket No. 20-1419 (issued September 16, 2021); 

F.P.,Docket No. 19-1861 (issued April5, 2021); B.O.,Docket No. 20-0156 (issued May 13, 2020); EugeneF. Butler, 

36 ECAB 393 (1984).

9

Id.

10 Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 

U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also supra note 5 at Chapter 2.805.3a(1) (January2013); R.G., Docket No. 

19-1889 (issued April14, 2021) (physician assistants are not physicians under FECA); DavidP. Sawchuk, 57 ECAB 

316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent 

to render a medical opinion under FECA).

11 Id.

12 P.G., supra note 8; R.E.,Docket No. 21-0172 (issued June15, 2021); see also Edward Matthew Diekemper; 31 

ECAB 224, 225 (1979).

13 Supra note 8.
6

evidence not previously considered by OWCP, 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 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 her claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the May 12, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 1, 2022

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

14 P.G., supra note 8; R.E., supra note 12; 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).