United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

D.K., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VA MEDICAL CENTER, Columbia, SC, 

Employer

_________________________________________

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Docket No. 22-0111

Issued: February 8, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 1, 2021 appellant, through counsel, filed a timely appeal from a 

September 2, 2021 nonmerit decision of the Office of Workers’ Compensation Programs

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

(OWCP).

2

 Pursuant to the Federal Employees’ Compensation Act3(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).

FACTUAL HISTORY

On August 16, 2013 appellant, then a 54-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on August 10, 2013 she sustained acute bronchospasms and persistent 

cough as a result of being exposed to cleaning solutions and toner particles while in the 

performance of duty. OWCP accepted her claim for acute bronchospasms.

On October 23, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

By decision dated December 31, 2020, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body, warranting a schedule award.

On January 20, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

Appellant submitted diagnostic pulmonary testing obtained on February 23, 2021, which 

demonstrated a normal flow volume loop, adequate maximal voluntary ventilation relative to 

forced expiratory volume in the first second, normal lung capacity, mild reduction in single breath 

diffusion capacity, and normal diffusion capacity to alveolar volume area.

The telephonic hearing was held on May 3, 2021.

On May 11, 2021 OWCP received additional medical evidence. In a report dated 

September 2, 2020, Dr. Ralph Nietrzeba, a specialist in cardiac and pulmonary care, related that 

appellant had reached maximum medical improvement.

In a report dated May 8, 2021, Dr. Sami Moufawad, Board-certified in pain medicine, 

reviewed appellant’s history of injury and conducted a physical examination. Referencing the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

2 The Board notes counsel only appealed from OWCP’s September 2, 2021 nonmerit decision. Although OWCP’s 

June 16, 2021 merit decision is within the Board’s jurisdiction, counsel did not appeal from that decision. Therefore, 

the Board will not address the June 16, 2021 merit decision in this appeal. 20 C.F.R. § 501.3(c)(4); see E.R., Docket 

No. 20-1110 (issued December 23, 2020).

3 5 U.S.C. § 8101 et. seq.
3

Impairment (A.M.A., Guides),

4 Dr. Moufawad opined that appellant had 11 percent whole person 

impairment as a result of her accepted acute bronchospasm.

By decision dated June 16, 2021, OWCP’s hearing representative affirmed the 

December 31, 2020 decision.

On July 26, 2021 appellant, through counsel, requested reconsideration. With the request, 

appellant resubmitted the May 8, 2021 report of Dr. Moufawad.

By decision dated September 2, 2021, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of her claim.

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.5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or 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.6

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

OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.8 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.9

4 A.M.A., Guides (6th ed. 2009).

5 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued 

February 11, 2019); W.C., 59 ECAB 372 (2008).

6 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).

7

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.

8

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

9

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
4

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’s July 26, 2021 request for reconsideration neither alleged nor demonstrated that 

OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board finds 

that it did not advance a relevant legal argument not previously considered by OWCP. 

Consequently, appellant is not entitled to further review of the merits of her claim based on either 

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

In support of her reconsideration request, appellant resubmitted the May 8, 2021 report of

Dr. Moufawad, which was previously of record. Evidence that repeats or duplicates evidence 

already of record has no evidentiary value and does not constitute a basis for reopening a case.10 

As appellant failed to provide relevant and pertinent new evidence with her request for 

reconsideration, 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.

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).

10 D.M., Docket No. 18-1003 (issued July 16, 2020).
5

ORDER

IT IS HEREBY ORDERED THAT the September 2, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 8, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board