United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakewood, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1866
Issued: January 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 20, 2016 appellant, through counsel, filed a timely appeal from a July 6,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision, dated July 8, 2014, 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.

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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The case has previously been before the Board.3 The facts of the case as presented in the
prior order are incorporated herein by reference. The relevant facts are as follows.
On June 11, 2013 appellant, then a 36-year-old letter carrier, filed a recurrence claim
(Form CA-2a) concerning a prior injury. On September 5, 2013, however, OWCP determined
that appellant was in fact alleging that he sustained a new injury on May 14, 2013. By decision
dated October 21, 2013, it denied appellant’s claim, finding that the evidence of record failed to
establish that a May 14, 2013 injury occurred as alleged.
Appellant requested a hearing which was held on April 22, 2014. By decision dated
July 8, 2014, the hearing representative affirmed OWCP’s October 21, 2013 decision.
By letter dated April 8, 2015, counsel notified OWCP that he had submitted a request for
reconsideration on appellant’s behalf on October 8, 2014. By decision dated July 21, 2015,
OWCP denied appellant’s April 8, 2015 reconsideration request, finding that it was timely filed
but insufficient to warrant further merit review.
Appellant appealed to the Board. On January 28, 2016 the Board set aside the July 21,
2015 decision and remanded the case to OWCP. The Board found that the case record was
incomplete as it was missing the April 22, 2014 hearing transcript as well as the October 8, 2014
request for reconsideration that counsel contended he had previously submitted. It was unclear
whether additional evidence was also missing from the record. The Board, therefore, directed
OWCP to properly assemble the case record and, after reviewing all evidence associated with the
claim, issue an appropriate decision.
The current case record reflects that on August 31, 2015 OWCP received an October 8,
2014 letter from counsel requesting reconsideration. With the October 8, 2014 letter were two
medical reports from Dr. Samuel Epstein, an osteopath, dated August 15 and
September 30, 2015. Both reports are in the case record, and were received by OWCP on
August 31, 2015.
By decision dated July 6, 2016, OWCP found that the evidence of record did not support
that it received a request for reconsideration dated October 8, 2014. Rather, it noted that the
earliest request for reconsideration of the July 8, 2014 decision received in the file was the
request of April 8, 2015. In addition, OWCP held that it did not receive any documents during
the period July 9, 2014 through April 7, 2015, and the only medical evidence received after the
July 8, 2014 merit decision were the reports of Dr. Epstein received on August 31, 2015, “more
than one month after the nonmerit decision of [July 21, 2015] was issued.” As a result, it found
3

Order Remanding Case, Docket No. 15-1921 (issued January 28, 2016).

2

that the evidence of record failed to support that it erred in refusing to consider the merits of the
July 21, 2015 decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”5
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.6
ANALYSIS
In the present case, the issue is whether OWCP properly denied appellant’s request for
reconsideration. OWCP acknowledged that counsel had submitted a reconsideration request as
of April 8, 2015, which is timely with respect to the July 8, 2014 merit decision.
The record contains new medical evidence from Dr. Epstein submitted on
August 31, 2015. The Board finds that OWCP failed to review this evidence. The case was
remanded by the Board to properly assemble the case record and issue an appropriate decision.
The evidence now before OWCP showed a timely request for reconsideration and additional
medical evidence submitted after the July 8, 2014 merit decision. OWCP was obligated to
consider all evidence properly submitted by the claimant and received by OWCP before the final
decision was issued.7
OWCP was required to review the medical evidence from Dr. Epstein in its July 6, 2016
decision and determine whether appellant was entitled to a merit review. The Board finds that it
failed to do so. The case will, therefore, be remanded to OWCP for a proper decision with
respect to the timely reconsideration request, pursuant to 20 C.F.R. § 10.606(b)(3).
CONCLUSION
The Board finds that the case is not in posture for decision.

4

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

7

See J.C., Docket No. 15-1666 (issued October 29, 2015); William A. Couch, 41 ECAB 548 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 6, 2016 is set aside and the case is remanded for further
action consistent with this decision of the Board.
Issued: January 17, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 21-1353
Issued: March 21, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 17, 2021 merit decision
and a September 8, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 8, 2021 decision, appellant submitted additional evidence to
OWCP. 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) whether OWCP properly denied appellant’s request for a review of the written record as
untimely filed, pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On April 7, 2021 appellant, then a 30-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he experienced a left knee strain due to factors of his federal
employment, including repetitive walking of 20,000 steps per day, stepping into his van repeatedly,
and climbing many flights of stairs daily. He indicated that he first became aware of his condition
and first realized its relation to his federal employment on April 4, 2021. Appellant stopped work
on April 5, 2021.
In an April 14, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence required and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence. It did not receive a response.
An activity prescription form dated April 6, 2021 from Katherine Hester, an advanced
registered nurse practitioner, noted that appellant was examined following an April 4, 2021
workplace incident. She diagnosed left knee sprain and advised that he could return to work.
By decision dated May 17, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment as it was rendered by
Ms. Hester . It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
On July 2, 2021 appellant was seen by Dr. Marilyn Nayan, a Board-certified family
medicine physician, with ongoing complaints of lower back and leg pain relating to his official
duties as a mail carrier. She indicated that his current symptoms began on June 27, 2021, but that
he had been experiencing pain for six months. Dr. Nayan diagnosed a strain of the muscle and
tendon of the lower back, and radiculopathy in the lumbar region. In duty status reports (Form
CA-17) dated July 2, 9, 16 and 2021, she provided clinical findings of strain of muscle, fascia and
tendon of the lower back and lumbar radiculopathy related to a June 27, 2021 work injury.
Dr. Nayan advised that appellant could return to work with restrictions.
In a diagnostic report dated July 2, 2021, Dr. Aamer Farooki, a Board-certified radiologist,
performed an x-ray of the lumbar spine, which revealed no acute abnormalities.
On July 9, 2021 appellant presented in follow up to Dr. Nayan and related that his
symptoms had improved with medication.
On August 10, 2021 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
In a July 16, 2021 note, Dr. Nayan noted that appellant’s condition was exacerbated by
prolonged walking or standing while working. She further indicated that he could return to work
with limited duties.
2

An August 6, 2021 follow-up note from Dr. Nayan related appellant’s ongoing symptoms
and improvement with medication. In a Form CA-17 of even date, she indicated that he could
return to work.
On August 20, 2021 appellant was seen by Dr. Nayan in follow up. Dr. Nayan noted that
his pain symptoms increased after returning to full-duty work, and further noted that prolonged
walking and carrying heavy bags aggravated his condition. She diagnosed a lumbar strain without
a herniated disc. In a Form CA-17 of even date, Dr. Nayan indicated that appellant could return
to work with restrictions.
By decision dated September 8, 2021, OWCP denied appellant’s request for a review of
the written record as untimely filed, finding that his request was not made within 30 days of the
May 17, 2021 OWCP decision as it was postmarked on August 10, 2021. It further exercised
discretion and determined that the issue in this case could equally well be addressed by a request
for reconsideration before OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or con dition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.7

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician ’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted an activity prescription f orm dated April 6,
2021 from Ms. Hester, an advanced registered nurse practitioner, who diagnosed a left knee sprain
following a workplace incident on April 4, 2021. The Board, however, has held that medical
reports signed solely by a nurse practitioner are of no probative value as such providers are not
considered physicians as defined under FECA. 9 This evidence, therefore, is insufficient to
establish appellant’s burden of proof.
As the medical evidence of record is insufficient to establish a diagnosed medical condition
causally related to the accepted factors of appellant’s federal employment, the Board finds that he
has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”10
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a

8

John J. Carlone, 41 ECAB 354 (1989).

9

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 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); David P. 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 FEC A); see
also M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020) (nurse
practitioners are not considered physicians under FECA).
10

5 U.S.C. § 8124(b)(1).

4

representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that the request for a hearing or review of the written record
must be made within 30 days of the date of the decision for which review is sought. 13 Because
appellant’s request was postmarked on August 10, 2021, it post-dated OWCP’s May 17, 2021
decision, by more than 30 days and, therefore, is untimely. Appellant was, therefore, not entitled
to a review of the written record as a matter of right. 14
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 15 The Board finds that, in the September 8, 2021 decision, OWCP properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.16 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for a review of the written record. Accordingly, the
Board finds that OWCP properly denied his request for a review of the written record pursuant to
5 U.S.C. § 8124(b) as untimely filed.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment. The Board
11

20 C.F.R. §§ 10.616, 10.617.

12

Id. at § 10.616(a).

13

Supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (September 2020).
14

See P.C., Docket No. 19-1003 (issued December 4, 2019).

15

Id.

16

Id.

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further finds that OWCP properly denied his request for a review of the written record as untimely
filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the May 17 and September 8, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-1601
Issued: December 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 15, 2014 appellant filed a timely appeal from a March 26, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s December 26, 2013 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 1, 2012 appellant, then a 59-year-old mail handler, filed an occupational
disease claim alleging that she sustained an emotional condition in the performance of duty as a
result of her rehabilitation job being spontaneously withdrawn on August 16, 2010. She stated
1

5 U.S.C. § 8101 et seq.

that the spontaneous withdrawal aggravated a preexisting condition of job stress and depression.
Appellant noted that she first became aware of her underlying condition on November 19, 1992
and realized it resulted from her employment on August 16, 2010.2
By letter dated August 13, 2012, OWCP advised appellant that additional evidence was
needed to establish her claim. It advised appellant to consider whether she wanted to file a
traumatic injury or occupational disease claim. OWCP further requested factual information
identifying the specific events or incidents that she believed caused her emotional condition and
a medical report addressing how those incidents caused the claimed emotional condition.
In an August 24, 2012 statement, appellant described a May 12, 2010 incident when Dan
Davis, a postmaster, came to her desk and kept picking up and dropping mail into her flat tray.
She noted that she was uncomfortable because Mr. Davis was involved in a sexual harassment
complaint years ago. Appellant also alleged several instances when Larry Harrison, the manager
of distribution operations, walked by her office space and leered and stared at her. She further
described a specific incident when Mr. Harrison pulled a birdcage in front of her and blocked her
from leaving her office space and another incident when Mr. Harrison blocked her path in the
middle of a small aisle on June 8, 2010. Appellant noted that she filed grievances regarding
these incidents but nothing changed. She reported that on August 16, 2010 her job duties in her
rehabilitation position were withdrawn and she was told to end her tour. Appellant alleged that
this withdrawal aggravated her existing condition which caused more stress to her already
stressful situation of lost compensation, medical benefits, and unrepairable credit. She stated that
she first experienced stress and duress in her workplace following a 1992 work injury and related
several events of intimidation and harassment from management. Appellant submitted a witness
statement regarding the May 12, 2010 incident with Mr. Davis.
In a May 22, 2005 statement, James P. Waggle, Jr., chief steward of the National Postal
Mail Handlers Union, related appellant’s allegations of harassment and duress after the
employing establishment transferred her from the security room to the lobby at the employing
establishment. He described various incidents of management making threats against appellant
regarding her job.
In an October 9, 2008 medical report, Dr. Lina Nasr-Anaissie, a Board-certified family
practitioner, stated that she had treated appellant since June 19, 2007 for generalized anxiety.
She noted that in June 2008 appellant began to complain of increased anxiety at work due to
another employee constantly staring at her. Dr. Nasr-Anaissie reported that appellant was taking
medication and undergoing counseling for her anxiety.
In reports dated November 4 and December 10, 2008, Dr. James R. Moneypenny, a
psychologist and counselor, related that appellant had been under his care since October 21, 2008
for treatment of job-related stress and adjustment disorder. He opined that her current working
environment was negatively affecting her psychological stability and recommended that she
remain off work until January 29, 2009.

2

The record reveals that appellant submitted three previous occupational disease claims under File Nos.
xxxxxx791, xxxxxx810, xxxxxx125 and one traumatic injury claim under File No. xxxxxx862.

2

Appellant submitted various disciplinary and grievance letters from 2000 to 2009,
including a November 2, 2000 decision from the U.S. Equal Employment Opportunity
Commission (EEOC) which found that the employing establishment discriminated against
complainant on the basis of her race; a June 16, 2008 settlement letter which credited appellant
back 8 hours of annual leave; and an October 29, 2009 suspension letter for continual absence
from August 26 to October 12, 2009. Appellant also provided a November 25, 2008 notice from
the employing establishment advising appellant that she was no longer eligible to use the Family
and Medical Leave Act (FMLA) because she had exhausted her 12 weeks for the year.
In a June 2, 2010 union grievance form, appellant alleged that she experienced
discrimination and a hostile work environment. She stated that Mr. Harrison pointed his finger
at her and talked to her in a demeaning manner. Appellant also submitted a June 9, 2010 police
investigation report which stated that Mr. Harrison had harassed her on numerous occasions.
In a June 16, 2010 report, Dr. William Rutledge, a Board-certified family practitioner,
related appellant’s complaints of agitation and depression that she attributed to harassment at her
job for the past 20 years. Appellant described the harassment as nonverbal and sometimes sexual
in nature. Dr. Rutledge diagnosed anxiety and depression and recommended that she remain off
work for two weeks.
In an August 21, 2012 report, Dr. Moneypenny stated that he treated appellant since
October 2008 for mental health conditions. He related that appellant complained of an ongoing
pattern of harassment at her job since 1992. Dr. Moneypenny reported that appellant
demonstrated clinically significant and disabling levels of anxiety and depression and noted that
her initial diagnosis was adjustment disorder, with mixed emotional features and subsequent
evaluation, which led to depressive disorder. He opined that the situation described by appellant,
specifically the hostile work environment and failure of the employing establishment to make
reasonable accommodations to her disabilities, had been the most significant and proximate
cause to her emotional condition.
In an October 5, 2012 report, Dr. Rutledge noted that he had treated appellant since
September 2009 for job-related stress. He related that appellant was working in a rehabilitation
job offer due to her job-related carpal tunnel syndrome when these accommodations were
withdrawn on August 16, 2010. Dr. Rutledge stated that this withdrawal aggravated her stress
illness and worsened her symptoms.
In a December 13, 2012 statement, the employing establishment responded to the specific
incidents of alleged hostile and stressful work environment in appellant’s August 24, 2012 letter.
It contended that appellant had worked with appellant for several years to accommodate her
medical restrictions and that her harassment allegations were unfounded.
In a decision dated January 29, 2013, OWCP denied appellant’s claim. It found that
appellant did not establish fact of injury as she did not submit sufficient evidence to demonstrate
that she experienced any compensable factors of employment and that the alleged incidents of
harassment occurred as described.

3

In an appeal request form dated December 16, 2013 and received by OWCP on
December 26, 2013, appellant requested reconsideration. She noted that her job stress started in
1992 when she was injured on duty and was aggravated on August 16, 2010 when her
rehabilitation duties were withdrawn. Appellant stated that due to the withdrawal of her
modified job offer and management’s refusal of reasonable accommodations she was placed in
hardship for years and experienced job stress, anxiety, insomnia, and depression because of lost
compensation for wages, annual or sick leave, and other benefits. She explained her
disagreements with OWCP’s findings in the January 29, 2013 denial decision. Appellant
described in detail her various encounters with Mr. Harrison when he intimidated and offended
her. She also alleged that she reported various alleged hostile incidents with upper management
to the union and the police and was inappropriately denied requests for FMLA leave.
In a June 5, 2012 union grievance form, appellant stated that on June 4, 2012 she
received a Notice of Administration Separation that failed to advise her that an employee who
was eligible for disability retirement but chose not to apply could not be separated until a
complete medical report was received and the employee received retirement counseling. She
noted that on August 16, 2010 she was sent home under the National Reassessment Process
(NRP) and numerous absence inquiries. Appellant reported that she responded each time but
received no response from the employing establishment. She requested that the Notice of
Administrative Separation be rescinded.
Appellant submitted requests to use FMLA leave dated May 4 and September 23, 2009.
She also resubmitted the June 2, 2010 union grievance form and Dr. Rutledge’s October 5, 2012
medical report.
By decision dated March 26, 2014, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant further merit review under 5
U.S.C. § 8128(a). It determined that appellant’s statement and the evidence submitted was
cumulative and duplicate of evidence previously of record.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.3 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district office.4
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

3

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).

4

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.5
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.6 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.7 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.8
ANALYSIS
Appellant claimed that on August 16, 2010 she sustained an aggravation of an emotional
condition when her modified job offer was suddenly withdrawn. In support of her claim, she
submitted an August 24, 2012 statement describing various incidents with management that she
believed contributed to a hostile and stressful work environment, a witness statement regarding a
May 12, 2010 incident with Mr. Davis, and a May 22, 2005 statement from a union steward
regarding appellant’s grievances. Appellant also provided medical reports dated from October 9,
2008 to October 5, 2012 from Drs. Nasr-Anaissie, Moneypenny, and Rutledge regarding her
treatment for anxiety, stress, and adjustment disorder as a result of her work environment. She
further submitted disciplinary and grievance letters from 2000 to 2009, including a November 2,
2000 EEOC decision, a June 16, 2008 settlement letter, a November 25, 2008 denial of her
request for FMLA leave, an October 29, 2009 suspension letter, a June 2, 2010 union grievance
form, and a June 9, 2010 police investigation report. By decision dated January 29, 2013,
OWCP denied appellant’s claim finding that the factual evidence was insufficient to establish
that she sustained a compensable factor of employment.
Appellant requested reconsideration by appeal request form received by OWCP on
December 26, 2013. The only issue for determination before the Board is whether OWCP
properly denied appellant’s request for reconsideration. Appellant included a statement
disputing the findings of OWCP’s decision and repeating her allegations of harassment and a
hostile work environment. She also submitted a June 5, 2012 union grievance form and May 4
and September 23, 2009 requests for FMLA leave that was not previously considered. Although
these documents constitute new evidence, they are repetitive and substantially similar to the
grievance forms and FMLA documents already considered by OWCP and, therefore, are
cumulative in nature.9 These documents do not provide any new or pertinent information
5

20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

20 C.F.R. § 10.607(a).

7

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

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

See E.M., Docket No. 12-1899 (issued June 6, 2013).

5

regarding whether appellant sustained a compensable factor of employment. The Board has
found that evidence which is duplicative or cumulative in nature is insufficient to warrant
reopening a claim for merit review.10 Accordingly, this evidence did not constitute a basis for
further merit review of appellant’s claim.
On appeal appellant argued the merits of her emotional condition claim. As previously
noted in the jurisdiction section, however, the Board does not have jurisdiction over the merits of
the claim. The only issue on appeal is whether OWCP properly denied appellant’s request for
reconsideration.
Appellant did not meet any requirements of 20 C.F.R. § 10.606(b)(2). She did not submit
any evidence along with her request for reconsideration to show that OWCP erroneously applied
or interpreted a specific point of law, or advances a relevant legal argument not previously
considered by OWCP. Pursuant to 20 C.F.R. § 10.608(b), OWCP properly declined to reopen
the case for review of the merits.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen her case for further consideration of the merits of her claim under
5 U.S.C. § 8128.
CONCLUSION
The Board finds that OWCP properly denied appellant’s December 26, 2013 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

10

Denis M. Dupor, 51 ECAB 482 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2014 nonmerit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: December 10, 2014
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
TENNESSEE VALLEY AUTHORITY, FOSSIL
OPERATIONS, ALLEN FOSSIL PLANT,
Chattanooga, TN, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-731
Issued: October 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 25, 2011 appellant filed a timely appeal from a September 30, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied a schedule
award for hearing loss. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he had a ratable
hearing loss, causally related to factors of his federal employment, entitling him to a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 2010 appellant, then a 55-year-old shift operations supervisor, filed an
occupational disease claim (Form CA-2) alleging that he sustained tinnitus in both ears due to his
exposure to high noise levels in the performance of duty.
By letter dated July 9, 2010, OWCP advised appellant of the evidence needed to establish
his claim and requested his employment history, date of last exposure to hazardous noise at
work, all previous ear or hearing problems and related medical records and audiograms. It
allotted 30 days for him to submit additional evidence.
Subsequently, appellant submitted evidence demonstrating that he was employed as a
shift operations supervisor at the employing establishment from June 18, 1995 to his retirement
on June 2, 2010 and that he was exposed to noise from various sources during that period. In
addition, he submitted a series of audiometric results from testing through the hearing
conservation program at the employing establishment for the period between 1995 and 2010.
In a February 28, 2007 medical report, Dr. William H. Light, a Board-certified internist,
diagnosed tinnitus.
In an April 13, 2007 medical report, Dr. Neal S. Beckford, a Board-certified
otolaryngologist, diagnosed persistent tinnitus, probably secondary to noise exposure. He
indicated that appellant had a high-frequency sensorineural hearing loss at 4,000 hertz (Hz) that
was symmetric and mild in severity.
In a November 6, 2008 medical report, Dr. Arthur Tyehimba, an otolaryngologist,
diagnosed asymmetrical sensorineural hearing loss. He indicated that appellant’s tinnitus
matched out at 8,000 Hz suggesting a high-frequency source.
Appellant submitted a negative computed tomography (CT) scan of the temporal bone
dated November 17, 2008.
In a November 21, 2008 medical report, Dr. Kendrick K. Henderson, a Board-certified
internist and neurologist, diagnosed tinnitus and unspecified. He indicated that the CT scans of
appellant’s face and sinuses were essentially negative and recommended a magnetic resonance
imaging (MRI) scan of his brain in order to rule out an enhancing acoustic tumor. A
November 24, 2008 brain MRI scan was negative.
In a December 12, 2008 progress report, Dr. Henderson reiterated his diagnosis. He
reported that appellant’s workup was negative and indicated that the etiology was unknown.
In a December 19, 2008 medical report, Dr. Kerry L. Milligan, a Board-certified internist,
diagnosed tinnitus.
In a May 8, 2009 medical report, Dr. Paul F. Shea, a Board-certified otolaryngologist,
diagnosed tinnitus and discussed a possible Xylocaine perfusion procedure. He reported that
appellant had normal hearing bilaterally.

2

On June 15, 2009 Dr. Shea diagnosed tinnitus in the left ear and performed a perfusion
with intravenous Xylocaine/dexamethasone procedure.
In a September 1, 2009 postoperative report, Dr. Shea reported no subjective change in
appellant’s tinnitus as the procedure did not provide any significant relief.
OWCP referred appellant to Dr. Chester Allen Ruleman, Jr., a Board-certified
otolaryngologist, for a second opinion examination with a statement of accepted facts. In a
September 16, 2010 medical report, Dr. Ruleman diagnosed bilateral sensorineural hearing loss
and tinnitus, causally related to his occupational exposure to noise. He indicated that cervical
spine degenerative disease can increase tinnitus and opined that appellant’s tinnitus was
principally secondary to sensorineural hearing loss. Air-conduction hearing thresholds at 500,
1,000, 2,000 and 3,000 Hz were 15, 15, 30 and 40 decibels respectively on the right and 10, 15,
25 and 35 decibels respectively on the left. Dr. Ruleman reported that appellant had zero percent
left ear, right ear and binaural hearing loss and did not recommend hearing aids.
On September 29, 2010 OWCP’s district medical adviser reviewed Dr. Ruleman’s report
and the audiometric test of September 15, 2010. He concluded that, in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), appellant had no ratable hearing loss and noted that his tinnitus
did not warrant a schedule award in absence of a ratable hearing loss.
By decision dated September 30, 2010, OWCP accepted appellant’s claim for a hearing
loss and denied his schedule award claim finding that his hearing loss was not severe enough to
be considered ratable. It further found that he would not benefit from hearing aids.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in

2

5 U.S.C. §§ 8101-8193.

3

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

3

the ability to hear everyday speech under everyday conditions.4 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.5
Regarding tinnitus, the A.M.A., Guides provide that “tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.”6 The A.M.A., Guides state that “if tinnitus
interferes with [Activities of Daily Living (ADLs)], including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.”7
ANALYSIS
According to the audiometry obtained on September 15, 2010 for Dr. Ruleman, the
Board-certified otolaryngologist and OWCP second opinion physician, appellant’s hearing
thresholds were 15, 15, 30 and 40 decibels on the right and 10, 15, 25 and 35 decibels on the left.
These total 100 and 85 decibels, respectively, for averages of 25 and 21.25 decibels. Because
these averages are equal to or below the fence of 25 decibels, appellant is deemed to have no
impairment in his ability to hear everyday sounds under everyday listening conditions.8 This
does not mean he has no hearing loss. It means that the extent or degree of loss is not sufficient
to show a practical impairment in hearing according to the A.M.A., Guides. The A.M.A., Guides
sets a threshold for impairment and appellant’s occupational hearing loss did not cross that
threshold. Thus, appellant’s hearing loss was not ratable. For this reason, the Board finds that
OWCP properly denied a schedule award for appellant’s nonratable hearing loss.
The Board further finds that OWCP properly denied a schedule award for tinnitus.9
FECA does not list tinnitus in the schedule of eligible members, organs or functions of the body
therefore no claimant may receive a schedule award for tinnitus, at least not directly. Hearing
loss is a covered function of the body, so if tinnitus contributes to a ratable loss of hearing, a
claimant’s schedule award will reflect that contribution. The A.M.A., Guides provide that if
tinnitus interferes with ADLs up to five percent may be added to a measurable binaural hearing
impairment.10 The Board has repeatedly held, however, that there is no basis for paying a
4

See A.M.A., Guides 250.

5

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
6

See A.M.A., Guides 249.

7

Id. See also Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011).

8

See L.F., Docket No. 10-2115 (issued June 3, 2011).

9

Id.

10

See A.M.A., Guides 249. See also supra note 7.

4

schedule award for a condition such as tinnitus unless the evidence establishes that the condition
caused or contributed to a ratable hearing loss.11 Although appellant submitted medical evidence
that provided a firm diagnosis of tinnitus, as his hearing loss is not ratable, the Board will affirm
OWCP’s September 30, 2010 decision finding that he was not entitled to a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss and is therefore not
entitled to a schedule award for tinnitus.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

11

See Richard Larry Enders, 48 ECAB 184 (1996).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southfield, MI, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-570
Issued: October 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 28, 2009 appellant filed a timely appeal from a nonmerit decision of the
Office of Workers’ Compensation Programs dated November 5, 2009 denying his request for
reconsideration. As the most recent merit decision is dated February 10, 2009, more than 180
days prior to the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits under 5 U.S.C. § 8128.
FACTUAL HISTORY
On October 8, 1997 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim alleging that his bilateral carpal tunnel syndrome arose from the performance of his
employment duties. The Office accepted the claim for bilateral carpal tunnel syndrome and

authorized surgery, which occurred on October 27, 1997 and January 9, 1998.
returned to limited-duty work on February 12, 1998.1

Appellant

By decision dated November 17, 1999, the Office issued schedule awards for 10 percent
permanent impairment of the left upper extremity and 10 percent permanent impairment of the
right upper extremity. The period of the awards ran from April 21, 1999 to June 30, 2000. On
May 29, 2001 the Office issued schedule awards for an additional two percent impairment of the
right arm and two percent impairment of the left arm, which ran from June 2 to
September 27, 2000. By decision dated January 16, 2003, it issued schedule awards for an
additional eight percent impairment for both arms, which ran from November 1 to
December 28, 2002.
On April 22, 2005 appellant filed a claim for an additional schedule award, which was
denied by decision dated May 9, 2005.
On June 13, 2005 the Office received appellant’s undated reconsideration request. By
decision dated August 14, 2005 the Office denied appellant’s request for a merit review of his
claim.
On June 13, 2008 appellant filed a claim for an additional schedule award.
In a September 16, 2008 report, Dr. M. David Jackson, a treating Board-certified
physiatrist, reported that appellant had restricted range of motion of the wrist, decreased opens
pollicis strength and bilateral median distribution distorted superficial tactile sensation. He
concluded appellant had 10 percent impairment of the right upper extremity due to weakness of
the opponens pollicis. Dr. Jackson stated appellant previously received a schedule award for 2
percent impairment for each hand for a total 24 percent impairment. He stated there was an
increase of 10 percent due to appellant’s motor deficits. Dr. Jackson concluded appellant’s range
of motion deficits would result in a higher impairment than his sensory abnormalities. He
concluded appellant’s total impairment was 34 percent impairment for appellant’s bilateral upper
extremities.
On December 4, 2008 Dr. Anthony F. Skalak, an Office medical adviser, reviewed the
evidence including a statement of accepted facts and Dr. Jackson’s September 16, 2008 report.
He concluded that appellant had 12 percent impairment of the right upper extremity and 12
percent impairment of the left upper extremity using Tables 16-15 and 16-11 of the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment.
Dr. Skalak found that appellant did not have an impairment greater than previously awarded.
By decision dated February 10, 2009, the Office denied appellant’s request for an
additional schedule award.
On September 29, 2009 appellant requested reconsideration and submitted a
September 25, 2009 report from Dr. Jackson and a claim for a schedule award in support of his
request. Dr. Jackson noted appellant had reduced joint range of motion which included 60
1

On October 12, 1999 the Office issued a loss of wage-earning capacity determination, finding that the position
of modified letter carrier fairly and reasonably represented his wage-earning capacity.

2

degrees bilateral wrist flexion, 35 degrees bilateral extension, “a few degrees of radial deviation
bilaterally and maybe about 30 degrees of ulnar deviation.”
In a decision dated November 5, 2009, the Office denied appellant’s request for further
merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5
The Board has held that the submission of evidence, which repeats or duplicates evidence
already in the case record, does not constitute a basis for reopening a case.6 The Board also has
held that the submission of evidence, which does not address the particular issue involved, does
not constitute a basis for reopening a case.7 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.8
ANALYSIS
Appellant’s request for reconsideration consists of an appeal request form in which he
checked a box indicating that he sought reconsideration. His request does not attempt to show
that the Office erroneously applied the law because he did not identify a point of law that was
2

5 U.S.C. § 8128(a). Section 8128(a) of the Act provides that [t]he Secretary of Labor may review an award for
or against payment of compensation at any time on her own motion or on application.
3

20 C.F.R. § 10.606(b)(2). See R.B., 61 ECAB ___ (Docket No. 09-1241, issued January 14, 2010); Susan A.
Filkins, 57 ECAB 630 (2006).
4

20 C.F.R. § 10.607(a). See S.J., 60 ECAB ___ (Docket No. 08-2048, issued July 9, 2009); D’Wayne Avila,
57 ECAB 642 (2006).
5

20 C.F.R. § 10.608(b). See R.M., 59 ECAB ___ (Docket No. 08-734, issued September 5, 2008); Tina M.
Parrelli-Ball, 57 ECAB 598 (2006).
6

A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009); Arlesa Gibbs, 53 ECAB 204 (2001);
James E. Norris, 52 ECAB 93 (2000).
7

E.M., 60 ECAB ___(Docket No. 09-39, issued March 3, 2009); D.I., 59 ECAB ___ (Docket No. 07-1534, issued
November 6, 2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).
8

L.H., 59 ECAB ___ (Docket No. 07-1191, issued December 10, 2007); Vincent Holmes, 53 ECAB 468 (2002);
Robert P. Mitchell, 52 ECAB 116 (2000).

3

erroneously applied or interpreted. Appellant’s request form also did not advance any new
relevant legal arguments not previously considered by the Office.
The additional medical report from Dr. Jackson submitted by appellant, although new, is
not relevant and pertinent evidence not previously considered by the Office. In a September 25,
2009 report, Dr. Jackson advised that appellant was seen for a follow-up visit for his bilateral
carpal tunnel syndrome. He noted appellant had reduced bilateral wrist range of motion, but did
not provide any impairment rating or reference to the A.M.A., Guides. Dr. Jackson’s report
failed to address the pertinent issue of whether appellant had increased permanent impairment
for schedule award purposes. Thus, it is not relevant to the particular issue presented in this
appeal and does not warrant a reopening of the case for merit review.9
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 5, 2009 is affirmed.
Issued: October 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

9

See D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007); Johnnie B. Causey, 57 ECAB 359
(2006) (the submission of evidence which does not address the particular issue involved in a case does not constitute
a basis for reopening the claim).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.N., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WARFARE CENTER -- AIRCRAFT DIVISION,
Lakehurst, NJ, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-2443
Issued: July 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 12, 2008 appellant filed a timely appeal from a June 10, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying reconsideration of a May 1,
2007 merit decision denying her traumatic injury claim. As over a year has passed since the date
of the most recent merit decision dated May 7, 2007 and the filing of this appeal dated
September 12, 2008, the Board lacks jurisdiction over the merits of appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On November 29, 2006 appellant, a 42-year-old educational technologist, filed a
traumatic injury claim (Form CA-1) for arm pain, emanating from her arm pit area and radiating
into her hand. She attributed her injury to an incident on November 17, 2006 when, while
arranging a classroom, moving furniture, cribs, shelves and rugs, she experienced pain in her arm
that radiated into her hand.
In a November 28, 2006 report, Dr. Susan Mason, a Board-certified internist, reported
that examination of appellant’s left arm revealed tenderness to palpation on the proximal anterior
side. She diagnosed appellant with cervical neuritis. In two earlier evaluations dated
November 27 and 28, 2006, Dr. Mason diagnosed appellant with left arm pain and recommended
appellant for light duty with restrictions.
In a December 4, 2006 report, Dr. Mason diagnosed appellant with cervical neuritis at
C6-7. Examination of appellant’s left arm revealed tenderness to palpation of the proximal and
axilla region. Dr. Mason also observed tenderness in the upper ventral arm to deep palpation.
Appellant submitted an unsigned December 11, 2006 report concerning her initial visit to
a doctor’s office. The report was not signed by a physician or printed on paper indicating the
name of the physician or the physician’s practice group.
In a report dated December 22, 2006, Dr. Stephen J. Martino, a Board-certified
neurologist, observed that appellant experienced pain on light palpation in the axilla along with
positive Tinel’s sign at the left elbow and hyperpathia of digits numbers four and five of the left
hand. He noted that whether this arose in the left axilla, elbow or a combination of both could
not be resolved at that time. Dr. Martino also noted that, clinically speaking, appellant appeared
to have nerve irritation. He stated that he would evaluate appellant for the presence of cervical
radiculopathy and plexopathy with a magnetic resonance imaging (MRI) scan of the cervical
spine and left axilla.
In a January 3, 2007 report, Dr. Mason reported that appellant was qualified for light duty
but recommended restrictions consisting of no lifting, no pushing or pulling and no lifting above
the shoulder with her left arm.
In a January 22, 2007 report, Dr. Carlo Rondina, Board-certified radiologist, reported
findings from an MRI scan of appellant’s cervical spine and left brachial plexus. In reviewing
the results of the MRI scan of appellant’s cervical spine, he noted the presence of mild
degenerative changes from C4-5 to C6-7, but without evidence of disc herniation or spinal or
foraminal stenosis. Dr. Rodina also noted the presence of questionable syrinx extending from C3
to T2. Concerning the MRI scan of the left brachial plexus, he reported finding no evidence of
adenopathy or mass lesion involving the brachial plexus.
Appellant submitted results from nerve conduction studies dated January 29, 2007 and
signed by Dr. Martino. In a progress note dated January 29, 2007, Dr. Martino reported that an
MRI scan revealed mild degenerative changes from C4-5 and C6-7 but without evidence of
herniation or spinal or foraminal stenosis. The MRI scan of the plexus was negative for any

2

pathology. Dr. Martino diagnosed appellant with left axillary pain and noted that her symptoms
appeared to be musculoskeletal in nature and that he would recommend that appellant return to
work without restrictions.
In a January 29, 2007 note, Dr. Martino reported that appellant could return to work with
restrictions. In a subsequent evaluation dated January 30, 2007, Dr. Mason reported that
appellant was able to return to full duty.
In a January 30, 2007 report, Dr. Mason diagnosed appellant with cervical neuritis C6-7
and overexertion. She released appellant to return to work with no limitations.
By letter dated March 29, 2007, the Office notified appellant that the evidence of record
was insufficient to support her claim.
Appellant submitted a supplemental factual statement dated April 4, 2007 wherein she
explained: “On November 17, 2006 I had rearranged the classroom, moving cribs, shelves and
large area rugs. Later that day I had felt a pain in my armpit area. I didn’t think much of it,
could have been the under wire from my bra bothering me….”
Appellant submitted no additional medical evidence in support of her claim and by
decision dated May 1, 2007, the Office denied her claim because the evidence of record did not
establish that the alleged incident occurred or that she sustained an injury in connection with this
alleged incident. It specifically found:
“The factual basis of your claim is unclear or unknown. The factual evidence
received is insufficient to establish that an incident occurred on the date, at the
time and/or in the manner you allege. The medical evidence received is
insufficient to establish that you sustained an injury in connection with the
reported incident.”
Appellant disagreed and requested reconsideration on March 22, 2008. In support of her
request, she submitted a duplicate copy of a December 22, 2006 report signed by Dr. Martino as
well as a duplicate copy of a report dated January 22, 2007 signed by Dr. Rondina. Appellant
submitted a duplicate copy of results from a nerve conduction study conducted January 19, 2007
as well as a duplicate copy of a medical treatment note dated January 29, 2007, both of which
were signed by Dr. Martino. She also submitted a medical report dated January 24, 2007, signed
by Dr. Rondina. In his January 24, 2007 medical report, Dr. Rondina reported findings after a
series of x-rays: thin T2 sagittal and axial images. He reported that the additional images, when
compared to appellant’s MRI scan dated January 22, 2007, suggested the possibility of a syrinx
extending from C3 to T2. However, Dr. Rodina also noted that there was no evidence syrinx on
the thin T2 sequences.
Appellant also submitted a personal note dated March 22, 2008, in which she requested
reconsideration of her claim and provided details concerning the injury-causing incident. She
alleged that while moving furniture and carpeting in a classroom on November 7, 2006, she
experienced arm pain, emanating from her arm pit that radiated down into her hand. Appellant
alleged that there was no specific moment, while moving furniture and carpet during which she
felt the pain but, rather, it was noticeable as her day went on. She described the pain as an
3

aggravating pain, rather than a sharp persistent pain, that she experienced while moving around.
Appellant alleged that her symptoms increased to include pain and a tingling sensation in her
fingers. She alleged that on November 28, 2008, she reported her condition to her supervisor,
who sent her to Occupational Health for evaluation, after she was placed on no duty/light duty
and referred to a neurologist.
By decision dated June 10, 2008, the Office denied merit review, finding that appellant’s
new factual evidence was not relevant because the incident had already been accepted, and that
the medical evidence appellant submitted in support of her reconsideration request was
insufficient because it essentially repeated evidence already in the case record.2
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record7 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8 While a reopening of a case may be predicated solely on a legal premise not
2

On appeal, appellant submitted additional medical evidence consisting of a personal note dated
September 5, 2008. The Board may not consider evidence for the first time on appeal which was not before the
Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See J.T., 59 ECAB ___ (Docket No.
07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was
before the Office at the time of its final decision.) As appellant’s September 5, 2008 personal note was not part of
the record when the Office issued either of its previous decisions, the Board may not consider it for the first time as
part of appellant’s appeal.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Eugene F. Butler, 36 ECAB 393,
398 (1984).
8

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007); Edward Matthew Diekemper, 31 ECAB
224, 225 (1979).

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previously considered such reopening is not required where the legal contention does not have a
reasonable color of validity.9
ANALYSIS
The Board notes that in its May 1, 2007 decision, the Office denied appellant’s claim
because she had not established that an incident occurred at the time, place and in the manner
alleged, and because the medical evidence was insufficient to establish that she sustained an
injury. In its June 10, 2008 decision, the Office stated that it did not conduct a merit review;
however, it did conclude that appellant had established that the incident occurred in the time,
place and in the manner alleged. As it did accept that the incident occurred in the June 10, 2008
decision, which it previously denied in the May 1, 2007 decision, the Board concludes that the
June 10, 2008 decision constituted a merit review as it changed the basis of the decision.
The Board also finds, however, that appellant has not established that she sustained an
injury arising from this incident on November 17, 2006.
Appellant has submitted a number of reports from Dr. Mason in which she diagnosed
cervical neuritis. She has not however submitted any medical report which explains with
medical rationale how appellant’s work activities involving moving furniture on November 17,
2006 would have caused the diagnosed condition. The Board has held that the fact that a
condition manifests itself or worsens during a period of employment10 or that work activities
produce symptoms revelatory of an underlying condition11 does not raise an inference of causal
relationship between a claimed condition and employment factors.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
Appellant has still not met her burden of proof in this case because she has not submitted
rationalized medical evidence explaining the causal relationship between her diagnosed cervical
condition and the accepted incident of moving furniture at work on November 17, 2006.
9

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007); John F. Critz, 44 ECAB 788,
794 (1993).
10

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
11

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155,157 (1960).

12

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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CONCLUSION
The Board finds that the Office decision dated June 10, 2008 was a merit decision. The
Board also finds that appellant has not established that she sustained an injury related to the
accepted employment incident of November 17, 2006.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: July 8, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bay Pines, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Geoffrey P. Damon, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1232
Issued: January 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 21, 2010 appellant, through her attorney, filed a timely appeal of a
November 13, 2009 decision of the Office of Workers’ Compensation Programs denying further
merit review. Because over one year elapsed between the most recent merit decision of
November 12, 2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of the case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

On appeal, appellant asserted that the review of her reconsideration request should have
been conducted by a new claims examiner. Appellant’s attorney argued that appellant had
submitted sufficient new and relevant evidence to warrant merit review.
FACTUAL HISTORY
On August 24, 1983 appellant, then a 53-year-old nurse, filed a traumatic injury claim
alleging injury to her pelvis, right leg, lower back, left shoulder and face on August 23, 1983
when an unsecured car rolled into her while transporting a patient. On March 1, 1984 the Office
accepted her claim for cervical and lumbar strain depressive reaction and stomach ulcers
resulting from psychotropic medications.
By decision dated June 14, 1996, the Office denied appellant’s claim for the additional
conditions of hypertension, tinnitus and hearing loss.
In a letter dated March 9, 2007, the Office proposed to terminate appellant’s
compensation benefits for the conditions of lumbar strain, cervical strain and stomach ulcers. It
found that the weight of the medical opinion evidence rested with the September 27, 2006 report
of Dr. John McGrail, a Board-certified orthopedic surgeon and the impartial medical specialist.
Dr. McGrail found no physical findings consistent with residual trauma due to the 1983
employment injury. The Office also noted that Dr. Mark Reynolds, a Board-certified
psychiatrist, examined appellant on November 21, 2006 and diagnosed depressive disorder. He
opined that, while appellant continued to experience medical residuals of this condition, she was
not disabled due to her accepted depression. Dr. Reynolds stated, “The claimant has not been on
psychotropic medications for many years and I find no indication her [d]epressive condition or
medications provided to treat that condition are causally related to any ongoing gastrointestinal
complaint.” The Office determined that appellant no longer had residuals of stomach ulcers
causally related to medications taken for work-related depression. It allowed 30 days for a
response.
Appellant submitted a January 29, 2007 narrative statement which addressed the limited
nature of the second opinion and impartial medical examinations. Dr. Kimberly Stock, a Boardcertified internist, completed a report on February 22, 2007. She opined that appellant could not
return to her date-of-injury position due to both her original injury and ongoing physical
consequences as well as natural arthritic changes due to advance age. Dr. Jeffrey A. Lefkovitz, a
Board-certified gastroenterologist, performed an upper endoscopy on March 26, 2007 and
diagnosed small hiatal hernia, gastric polyposis and minimal gastritis. In an April 30, 2007
decision, the Office terminated appellant’s wage-loss and medical benefits for her back
conditions as of that date.2
In a letter dated May 25, 2007, appellant disagreed with the Office’s April 30, 2007
termination and alleged that the physical examinations of Dr. McGrail and the second opinion
physician, Dr. Alvare Vitol, an osteopath, were insufficient. She requested a review of the
written record. Appellant submitted comments on the March 9, 2009 pretermination notice and
2

This decision was authored by Karen Spehar, senior claims examiner.

2

Dr. McGrail’s report. She resubmitted a copy of a March 19, 2007 functional capacity
evaluation and other medical reports dated from 1983.
Dr. Michael G. Stiff, a Board-certified gastroenterologist, examined appellant on
August 24, 2000 and noted that she had a gastric ulcer on the incisura angularis and
recommended testing. On September 13, 2000 appellant underwent a colonoscopy and upper
endoscopy. She was diagnosed with severe diveritcular disease, diminutive polyp and active
internal hemorrhoids. The upper endoscopy described very mild redness to the antrum and
biopsies were taken. On March 26, 2007 Dr. Lefkovitz ordered a biopsy of a gastric polyp which
was negative for dysplasia or malignancy.
By decision dated November 30, 2007, an Office hearing representative affirmed the
termination of appellant’s compensation benefits.
In a July 14, 2008 letter, appellant requested reconsideration. On September 10, 2008 she
submitted a change of address. Appellant provided a narrative request for reconsideration on
October 3, 2008 contending that the Office restore her compensation benefits. She repeated her
assertions regarding her examination by Drs. McGrail and Vitol and alleged that she had
additional conditions as a result of her employment injuries. On June 13, 2008 Dr. Stephen T.
Weeds, Board-certified in physical medicine and rehabilitation, diagnosed degenerative disc
disease in the neck and low back, chronic L5 radiculopathy, knee osteoarthritis and gait
disturbance. In reports dated April 23 and May 7, 2008, Dr. Ying H. Chen, an osteopath,
diagnosed degenerative disc disease and spondylosis. He noted appellant’s history of work
injury. Dr. Chen opined that some of appellant’s back pain symptoms were due to L5-S1
spondylolisthesis. He recommended pain relief and emotional treatment. Appellant underwent a
cervical magnetic resonance imaging (MRI) scan on April 28, 2008 which demonstrated
multilevel degenerative disc disease and central canal stenosis as well as facet arthropathy and
osteophytic narrowing of the neural foramina.
Dr. Abraham Jacob, a Board-certified otolaryngologist of professorial rank, examined
appellant on June 24, 2008. Appellant related her hearing loss to her 1983 employment injury
and medications for treatment of that injury. Dr. Jacob diagnosed profound bilateral profound
sensorineural hearing loss and tinnitus. He stated that the medications that appellant reported
taking in 1983 “did not strike me as particularly ototoxic. Therefore, we will never know the
reasons for her hearing impairment.” On November 1, 2008 appellant provided another change
of address.
In a decision dated November 12, 2008, the Office denied modification of the April 30
and November 30, 2007 decisions.
Appellant’s attorney requested reconsideration on October 22, 2009.
Appellant
submitted an August 6, 2009 electrocardiogram and an August 14, 2009 record of a brief episode
of atrial fibrillation. Counsel argued that the Office could reopen appellant’s claim on its own
motion and that appellant had submitted evidence that she had residuals of her 1983 employment
injury. He contended that her pain was disabling and that emotional conditions were
compensable under the Federal Employees’ Compensation Act. Counsel requested that the

3

Office vacate the November 12, 2008 decision and reinstate appellant’s benefits. Appellant
submitted a change of address on November 4, 2009.
On November 13, 2009 the Office denied appellant’s request for reconsideration finding
that she did not submit new or relevant evidence or legal argument.3
LEGAL PRECEDENT
The Office’s regulations provide that a timely request for reconsideration in writing may
be reviewed on its merits if the employee has submitted evidence or argument which shows that
the Office erroneously applied or interpreted a specific point of law; advances a relevant legal
argument not previously considered by the Office, or constitutes relevant and pertinent new
evidence not previously considered by the Office.4
ANALYSIS
The Board finds that the Office properly denied reopening appellant’s claim for
reconsideration of the merits on November 13, 2009.
In support of her reconsideration request, appellant submitted medical records pertaining
to her cardiac condition. This condition was not accepted as related to her employment injury
and is not relevant to the termination of her benefits for her back condition.
Appellant’s attorney cited general principles of Board case law and Office procedures
concerning the reopening of appellant’s case on the merits. He addressed the merits of the
medical evidence of record to argue that she had residuals of her 1983 injury. Counsel’s
contentions, however, are not sufficient to require the Office to reopen appellant’s claim for
reconsideration of the merits. The Board, as noted, does not have jurisdiction over the merits of
the claim.
The Office terminated appellant’s compensation and medical benefits on the grounds that
the weight of the medical opinion evidence established that her disability had ceased. In order to
require the Office to reopen her claim, appellant must submit pertinent new and relevant medical
evidence establishing continuing disability. She submitted a copy of the November 12, 2008
Office decision and expressed disagreement with the findings and conclusions of the claims
examiner. Appellant’s assertions are not sufficient to require the Office to reopen her claim for
reconsideration of the merits and are not relevant to the central issue, whether the medical
evidence established continuing disability or medical residuals of her back and ulcer conditions.
On appeal appellant asserted that the senior claims examiner who authored the
November 13, 2009 reconsideration decision was previously involved in the claim. The Office’s
procedure manual states that each request for reconsideration must be handled by a senior claims

3

Ms. Gumeny, senior claims examiner, authored this decision.

4

5 U.S.C. §§ 10.609(a) and 10.606(b).

4

examiner who was not involved in the making of the contested decision.5 The record on appeal
establishes that the contested decision of April 30, 2007 was authored by a different senior
claims examiner. Therefore, the Board finds that the Office appropriately followed its
procedures.
CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s claim for
consideration of the merits on November 13, 2009.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(b) (May 1996).

5