United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, JOHN F. KENNEDY 

INTERNATIONAL AIRPORT, Jamaica, NY, 

Employer

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Docket No. 22-1241

Issued: April 27, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 24, 2022 appellant filed a timely appeal from an April 19, 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 December 21, 2021, 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, following the April 19, 2022 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Procedures 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

On August 23, 2017 appellant, then a 37-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that on that date he strained his middle back when 

trying to close a bag while in the performance of duty. OWCP, by decision dated July 6, 2018, 

accepted his claim for sprain and strain of the lumbar and thoracic areas of the spine. Appellant

stopped work on August 23, 2017. 

On August 19, 2020 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Sean Lager, a Board-certified 

orthopedist, for a second opinion evaluation regarding the status of his employment-related 

conditions. In a September 8, 2020 report, Dr. Lager reviewed appellant’s history of injury and 

noted physical examination findings. He diagnosed lumbar sprain/strain and thoracic sprain/strain. 

Dr. Lager opined that appellant was not suffering from disabling residuals of the accepted 

conditions. He found no evidence to support that the work-related conditions were active and 

causing objective findings. Dr. Lager concluded that the work-related conditions resolved. He

opined that, based on clinical presentation, there was no disability secondary to the employment 

injury and appellant could return to work without restrictions. Dr. Lager noted that based on the

physical examination performed on September 8, 2020 and a review of the medical records,

appellant could return to work full time without restrictions.

In a September 25, 2020 addendum, Dr. Lager reiterated his earlier opinion that appellant 

was capable of returning to full-time employment without restrictions. 

On October 23, 2020 OWCP notified appellant of its proposed termination of his wageloss compensation and medical benefits because his August 23, 2017 employment injury had 

resolved. It found that the weight of medical evidence rested with the September 8 and 25, 2020

medical reports of Dr. Lager, OWCP’s second opinion physician, who found that appellant no 

longer had any residuals or disability causally related to his accepted August 23, 2017 employment 

injury.

In a statement dated November 13, 2020, appellant disagreed with the proposed 

termination. He submitted additional medical evidence, including reports from Dr. Leonid 

Reyfman, a pain medicine specialist, and Dr. Joseph P. Campisi, a chiropractor, who both opined 

that appellant was capable of performing light-duty work due to the effects of the accepted 

August 23, 2017 employment injury.

By decision dated February 25, 2021, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective February 26, 2021. It found that the weight of 

the medical evidence rested with Dr. Lager, the second opinion physician, who determined in his 

September 8 and r 25, 2020 reports that appellant did not have disability or residuals due to the 

accepted August 23, 2017 employment injury.
3

On April 28, 2021 appellant requested reconsideration.

Appellant submitted additional evidence. In an attending physician’s report (Form CA-20)

dated February 16, 2021, Dr. Vitaliy Chivotenko, an osteopath and Board-certified neurologist, 

diagnosed myalgia, thoracic disc disorder, and spondylosis, and checked a box marked “Yes”

indicating that appellant’s condition had been caused or aggravated by an employment activity.

On May 3, 2021 Dr. Reyfman, evaluated appellant for middle back pain that developed 

after an employment injury on August 23, 2017. He diagnosed myalgia, intervertebral disc 

disorders with radiculopathy, and spondylosis without myelopathy. Dr. Reyfman reviewed

Dr. Lager’s reports and disagreed with his findings regarding appellant’s ability to work. He

indicated that appellant could not return to regular duty but was able to work light duty with 

restrictions on lifting over 25 pounds and no standing, walking or sitting continuously for more 

than 30 minutes. In a form report of even date, Dr. Reyfman diagnosed myalgia, intervertebral 

disc disorder with radiculopathy, and spondylosis without myelopathy. He noted that appellant 

was not currently working.

By decision dated July 20, 2021, OWCP denied modification of its February 25, 2021

termination decision.

A magnetic resonance imaging (MRI) scan of the thoracic spine dated March 4, 2021 

revealed persistent thoracic discopathy, re-demonstrated T12-L1 annular bulge, spinal canal 

encroachment, and mild levoscoliosis.

On April 22, 2021 Dr. Campisi treated appellant for a work-related back injury that 

occurred on August 23, 2017. He diagnosed severe disc derangement as noted on the MRI scan 

of the thoracic spine, vertebral subluxation complex at multiple levels in the lumbar and thoracic 

spine associated with lumbar radiculitis, and paravertebral muscle spasms. On April 23, 2021

Dr. Campisi reviewed the September 8, 2020 report from Dr. Lager and disagreed with his 

findings. He opined that Dr. Lager ignored the March 4, 2021 MRI scan findings that revealed 

disc injury and residual complications of his condition and inaccurately concluded that appellant 

had no residuals. 

In a report dated September 27, 2021, Dr. Victor Katz, a Board-certified orthopedist,

treated appellant for persistent left lower thoracic back pain that began after a work-related 

accident on August 23, 2017. He diagnosed lower thoracic spine bulge at T12-L1, muscle spasm 

of paraspinal muscle/left T10-T12 facets arthralgia, subluxation of the thoracic rib joint at T1-L2, 

scoliosis, thoracic spondylosis, and facets syndrome. Dr. Katz opined that appellant’s condition 

and symptoms were causally related to the August 23, 2017 employment injury when he twisted 

his middle and lower back while pushing and pulling a heavy bag and sprained/strained his 

thoracolumbar muscles and tendons as well as causing facets joint and rib joint subluxation and 

dysfunction. He noted these findings were consistent with the March 4, 2021 MRI scan. Dr. Katz 

indicated that appellant was not a surgical candidate at this time.

On October 18, 2021 appellant requested reconsideration.

By decision dated December 21, 2021, OWCP denied modification of the decision dated 

July 20, 2021.
4

On January 19, 2022 appellant requested reconsideration and submitted additional medical 

evidence.

In a January 10, 2022 report, Dr. Katz noted his treatment of appellant for persistent left 

lower thoracic back pain that began after a work-related accident that occurred on 

August 23, 2017. He diagnosed lower thoracic spine bulge at T12-L1, muscle spasm of paraspinal 

muscle/left T10-T12 facets arthralgia, subluxation of the thoracic rib joint at T1-L2, scoliosis, 

thoracic spondylosis, and facets syndrome. Dr. Katz opined that appellant’s condition and 

symptoms directly related to the work-related accident on August 23, 2017. He noted these 

findings were consistent with the March 4, 2021 MRI scan and returned appellant to light-duty 

work.

Appellant subsequently submitted reports from Dr. Reyfman dated May 3, 2021, 

previously of record. By decision dated April 19, 2022, OWCP denied appellant’s 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.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 

3 5 U.S.C. § 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).

4 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).

5

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 (September 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.

6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
5

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 his claim, pursuant to 5 U.S.C. § 8128(a).

Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted 

a specific point of law. Moreover, he has not advanced a relevant legal argument not previously 

considered. Consequently, appellant is not entitled to a review of the merits of his claim based on 

the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8 

In support of his request for reconsideration, appellant resubmitted reports from

Dr. Reyfman dated May 3, 2021. As these reports repeat evidence already in the case record, they 

are cumulative and do not constitute relevant and pertinent new evidence. Appellant also 

submitted a January 10, 2022 report from Dr. Katz. While this evidence is new, it is substantially 

similar to a September 27, 2021 report from Dr. Katz previously considered by OWCP. The Board 

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

argument already in the record does not constitute a basis for reopening a claim.9 As such, this 

evidence is insufficient to warrant merit review. Because appellant has not provided relevant and 

pertinent new evidence, he was not entitled to a review of the merits based on the third requirement 

under section 10.606(b)(3).10

The Board, accordingly, finds that appellant has not met any of the requirements under 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 his claim, pursuant to 5 U.S.C. § 8128(a). 

7

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).

8 M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

9

J.L., Docket No. 21-1373 (issued March 27, 2023); S.F., Docket No. 18-0516 (issued February 21, 2020); 

James W. Scott, 55 ECAB 606, 608 n.4 (2004); Eugene F. Butler, 36 ECAB 393, 398 (1984).

10 See 20 C.F.R. § 10.606(b)(3)(iii).
6

ORDER

IT IS HEREBY ORDERED THAT the April 19, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 27, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board