United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 22-0723

Issued: October 12, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 11, 2022 appellant, through counsel, filed a timely appeal from a March 16, 2022 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 

days has elapsed from OWCP’s last merit decision, dated November 12, 2015, 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 March16, 2022decision, 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 his claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision and order are incorporated herein by reference. The relevant facts 

are as follows.

On September 21, 2012 appellant, then a 41-year-old marine electrician, filed a traumatic 

injury claim (Form CA-1) alleging that on that date a one-half inch steel plate fell from a fence 

onto his right leg causing a right lower leg contusion. OWCP accepted the claim, assigned OWCP 

File No. xxxxxx449, for a contusion of the right leg. Appellant stopped work on September 22, 

2012 and returned to work on January 8, 2013.5 

OWCP previously accepted that appellant sustained a right lateral collateral ligament 

sprain and a right medial meniscus tear on July 26, 2008, assigned OWCP File No. xxxxxx817. 

On August 27, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for 

intermittent disability from employment for the period November 21, 2013 to January 24, 2014. 

By decision dated November 12, 2015, OWCP denied appellant’s claim for wage-loss 

compensation from November 21, 2013 to January 24, 2014 due to disability causally related to 

his September 21, 2012 employment injury. 

Appellant appealed to the Board. By decision dated March 15, 2017, the Board affirmed 

OWCP’s November 12, 2015 decision.6 

On December 8, 2021 appellant, through counsel, requested that his claim be expanded to 

include additional conditions. In a December 15, 2021 development letter, OWCP requested 

additional factual and medical evidence supporting that he sustained additional employmentrelated conditions. 

Counsel submitted an excerpt from a report by Dr. John Shutack, a Board-certified 

neurosurgeon, who reviewed the findings from magnetic resonance imaging (MRI) scans. 

Dr. Shutack recommended possible surgery and noted that, if it did not “relieve the right lower leg 

pain associated with the trauma,” appellant might need a referral to a peripheral nerve specialist.

Appellant submitted the results of electrodiagnostic testing of the right lower extremity 

performed on July 15, 2014 which yielded normal findings, and an x-ray of his right knee dated 

4 Docket No. 16-1142 (issued March 15, 2017); Order Dismissing Petition for Reconsideration, Docket No. 16-

1142 (issued December 4, 2017).

5 Appellant retired effective January 12, 2016.

6

Supra note 4.
3

August 16, 2019. Electrodiagnostic testing of the right lower extremity obtained on July 27, 2021 

revealed right sural neuropathy. 

On August 3, 2021 Dr. Beth M. Winke, a Board-certified physiatrist, indicated that 

electrodiagnostic testing showed worsening right sural neuropathy. She noted that appellant had 

a history of medial cruciate ligament tears of the right knee as shown by a 2020 MRI scan and a 

history of lumbar surgery due to a disc herniation and radiculopathy. Dr. Winke related that these 

diagnoses had caused right lower extremity pain, numbness, and weakness that were causing 

“ongoing disability with decreased activity tolerance, especially limited walking, standing, 

bending, and lifting.”

An MRI scan of the lumbar spine, obtained on September 10, 2021 demonstrated grade 1 

anterolisthesis of L4 with respect to L5 and multilevel grade 1 retrolisthesis. 

In a report dated September 15, 2021, Dr. Shutack diagnosed chronic low back pain, 

degeneration of a lumbar intervertebral disc, a history of lumbar surgery, lumbar radiculopathy, 

lumbar spondylosis, lumbar stenosis, lumbar instability, lumbar spondylolisthesis, 

postlaminectomy syndrome, cervical spondylosis, neck pain, cervical stenosis, and a lumbar 

synovial cyst. 

In reports dated January through November 15, 2021, Dr. Surya M. Challa, a Boardcertified surgeon, diagnosed chronic pain syndrome, radiculopathy due to lumbar intervertebral 

disc disorder, and varicose veins of the lower extremity. 

On December 16, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

November 12, 2015 decision.7 Counsel asserted that OWCP should rescind its prior decision as it 

had indicated that the injury was to appellant’s left rather than right leg and relied upon medical 

evidence relevant to another claimant.

Appellant resubmitted progress reports from Dr. David Goss and Dr. Michael Romash,

Board-certified orthopedic surgeons, dated 2012 to 2014. He further resubmitted a February 7, 

2014 report from Dr. Richard Ginard, an osteopath, regarding appellant’slumbar steroid injection. 

In a progress report dated December 16, 2016, Dr. Goss diagnosed chronic neck pain and 

radiculitis, cervical spinal stenosis, and cervical disc degeneration. 

By decision dated March 16, 2022, OWCP denied appellant’s request for reconsideration 

as he had not submitted evidence or raised an argument sufficient to warrant reopening h is claim 

for merit review under 5 U.S.C. § 8128(a). 

7 The Board notes that counsel captioned his motion as a motion for rescission. Counsel’s mere characterization of 

the request as a motion for rescission,rather than a request for reconsideration under 5 U.S.C. § 8128(a), is found by 

the Board to be without significance as it cannot circumvent OWCP’s discretionary authority to impose a one-year 

timeframe for requesting reconsideration pursuant to 5 U.S.C. § 8128(a). See A.B., Docket No. 19-1539 (issued 

January 27, 2020). 
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 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 

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

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).

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s November 12, 2015 merit decision. The 

Board considered that evidence in its March 15, 2017 decision. Findings made in prior Board 

decisions are res judicata absent further review by OWCP under section 8128 of FECA. 13 The 

Board, therefore, will not review the evidence or arguments addressed in its prior appeal.

Appellant has not established that OWCP erroneously applied or interpreted a specific 

point of law, or advanced a relevant legal argument not previously considered by OWCP. Counsel 

asserted that OWCP, in its November 12, 2015 decision, indicated that appellant had injured his 

8

5 U.S.C. § 8128(a); 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).

9

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).

10 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 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.

11 Id. at § 10.608(a); see alsoF.V., Docket No. 18-0239 (issued May8, 2020); M.S., 59 ECAB 231 (2007).

12 Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R.,Docket No. 09-1655 (issued 

March 18, 2010).

13 K.K., Docket No. 20-1394 (issued July 26, 2021); ClintonE. Anthony, Jr., 49 ECAB 476(1998).
5

left rather than right leg and considered medical evidence pertinent to another claimant. However, 

in its November 12, 2015 decision, OWCP noted that an October 14, 2014 report addressed 

appellant’s left knee condition rather than the accepted right contusion. There is no evidence that 

it reviewed reports that were not relevant to appellant. Additionally, as noted, the Board previously 

affirmed the November 12, 2015 decision, and thus the issue is res judicata pending further 

review.14 Consequently, appellant is 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).15

The Board further finds that appellant has not provided any relevant and pertinent new 

evidence not previously considered. Appellant submitted a December 16, 2016 progress report 

from Dr. Goss regarding appellant’s cervical condition, reports from Dr. Challa dated January 

through November 15, 2021, and the results of diagnostic testing. He further submitted reports 

from Dr. Shutack and Dr. Winke pertinent to his current condition. None of this evidence 

addressed the relevant issue of whether appellant was disabled from employment for the period 

November 21, 2013 to January 24, 2014 causally related to his accepted September 21, 2012 

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

address the issue involved does not constitute a basis for reopening a case.16

Appellant further resubmitted progress reports dated 2012 through 2016 from Dr. Goss and

Dr. Romash and a February 7, 2014 report from Dr. Ginard. The Board has held that evidence 

which repeats or duplicates evidence already in the case record does not constitute a basis for 

reopening a case for merit review.17

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.18

On appeal counsel contends that OWCP should have ruled on motion for rescission. As 

previously noted, however, the motion for rescission constituted a request for reconsideration.19 

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).

14 Id.; see also R.G., Docket No. 21-1098 (issued March 28, 2022).

15 20 C.F.R. § 10.606(b)(3)(i) and (ii); see also B.W., Docket No .21-0709 (issued December 29, 2021); C.K., 

Docket No .18-1019 (issued October 24, 2018).

16 See P.G., Docket No. 20-1419 (issued September 16, 2021); C.C., Docket No. 20-0950 (issued October 29, 

2020); Edward Matthew Diekemper, 31 ECAB 224 (1979).

17 See T.T., Docket No. 19-0559 (issued July 19, 2019); D.K., 59 ECAB 141 (2007).

18 T.G., Docket No. 20-0329 (issued October 19, 2020); C.C., Docket No. 17-0043 (issued June 15, 2018).

19 See supra note 8.
6

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 12, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board