T.M. and Tennessee Valley Authority (Board decision, March 13, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A Tennessee Valley Authority employee asked OWCP to reopen his claim concerning an alleged neck injury after a fall associated with an accepted knee injury. The Board found that his arguments identified no new legal issue or error. He resubmitted medical reports already considered by OWCP. It affirmed denial of merit reconsideration without deciding the underlying neck claim.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Denial of merit reconsideration affirmed.
• Key point: Repeated evidence and arguments did not justify reopening the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.M., Appellant
)
)
and ) Docket No. 24-0084
) Issued: March 13, 2024
TENNESSEE VALLEY AUTHORITY,
)
Muscle Shoals, AL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 6, 2023 appellant filed a timely appeal from a June 30, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated March 3, 2023, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On December 8, 1983 appellant, then a 24-year-old structural iron worker, filed a claim for a traumatic injury (Form CA-1) alleging that on December 6, 1983 he bruised his left knee when he struck his knee when climbing on a diesel truck while in the performance of duty. OWCP accepted the claim for left knee contusion, bilateral chondromalacia patella, bilateral contusion of the hip and thigh, and left hip avascular necrosis. The record reflects that OWCP paid appellant wage-loss compensation on the periodic rolls commencing June 16, 2002.

On September 2, 2022 appellant notified OWCP that in April 2022 his knee buckled and caused him to fall backward, and as a result, he broke his neck and became paralyzed from the neck down. He requested financial assistance for 24-hour medical care. OWCP explained that the treating physician must provide a report to explain causally, how his new injuries were related to his accepted conditions.

In a September 19, 2022 report, Dr. Ernest Lee Mollohan, an osteopath specializing in family medicine, noted a diagnosis of severe chronic long-standing lower lumbar compression and bulging, and severe chronic bilateral knee chondromalacia. He reported that appellant had previously undergone total hip replacement. Dr. Mollohan indicated that appellant’s condition would worsen with time. He opined that appellant was permanently disabled due to his work- related injury on December 6, 1983, and would not be able to return to work. Dr. Mollohan explained that in April 2022 appellant underwent cervical laminectomy at C2 through C7. This procedure was required as a result of appellant’s fall due to knee buckling. Dr. Mollohan requested that the acceptance of appellant’s claim be expanded to include conditions of the bilateral arms and neck, and that appellant be authorized attendant care.

On November 9, 2002 OWCP received a formal request for authorization for a home health nurse.

In a development letter dated November 9, 2022, OWCP informed appellant of the deficiencies of his claim for expansion. It advised him of the type of factual and medical evidence necessary to establish his claim and provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary evidence.

In a November 15, 2022 attending physician’s report (Form CA-20), Dr. Mollohan noted that appellant had a history of nine knee surgeries, and two hip replacements, and that his 1983 employment injury was the cause of his fall, during which he broke his neck. He also related appellant had chronic pain in the knee, hips, back, neck, and bilateral arm weakness. Dr. Mollohan marked the box “No” in response to whether there was a history or evidence of concurrent or preexisting injury and marked the box “Yes” in response to whether he believed that the current

2
Docket No. 03-2066 (issued February 22, 2005).

2 conditions were caused or aggravated by an employment activity. He opined that appellant was totally disabled from December 6, 1983 to the present, and was unable to return to work.

In a report dated January 23, 2023, Dr. Mollohan related that diagnostic radiology examination of appellant’s cervical spine revealed postoperative laminectomy of the cervical C3- C4, C4-C5, C5-C6, and C6-C7 disc spaces, moderate straightening of the cervical spine, and mild osteoarthritis of the cervical spine.

On February 7, 2023 OWCP received an undated statement from appellant. Appellant explained that in April 2022, he was getting up from sitting in his recliner to help his mother-in- law and when he stood up and started to walk, his left knee buckled causing him to fall flat on his back on the hardwood floor in his living room. He noted that the fall caused an injury to his neck which required emergency neck surgery and that he became paralyzed from his shoulder to his feet. Appellant indicated his belief that the April 2022 fall was a direct result of the December 6, 1983 employment injury and that he would need attendant care 24 hours per day.

By decision dated March 3, 2023, OWCP denied appellant’s request to expand the acceptance of his claim for a consequential injury, as the medical evidence of record was insufficient to establish causal relationship between appellant’s current condition and the accepted employment injury. It further denied authorization for the requested treatment/services for these conditions.

On June 5, 2023 appellant requested reconsideration. He argued that the Form CA-20 from Dr. Mollohan gave a complete breakdown of how his accepted knee injury caused his fall and neck injury, that the January 23, 2023 radiological report showed the extent of his neck injury, and that he complied with the rules regarding reimbursement for his out-of-pocket expenses for his 24-hour attendant care.

Appellant resubmitted copies of Dr. Mollohan’s September 19, 2022, and January 23, 2023 reports, as well as the November 15, 2022 Form CA-20.

By decision dated June 30, 2023, OWCP denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether to review an award for or against compensation. The Secretary of Labor may review an award for or against compensation at any time on his or her own motion or on application.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a

3
5 U.S.C. § 8128(a); see L.J., Docket No. 22-0348 (issued April 28, 2023); 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).

3 specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.4

A request for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, OWCP reopens and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will deny the request for reconsideration.7

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

In his June 5, 2023 request for reconsideration, appellant argued that the Form CA-20 from Dr. Mollohan gave a complete breakdown of how his accepted knee injury caused his fall and neck injury, that the January 23, 2023 radiological report showed the extent of his neck injury, and that he complied with the rules regarding reimbursement for his out-of-pocket expenses for his 24-hour attendant care. However, he neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law in its March 3, 2023 decision. Moreover, appellant did not advance a relevant legal argument not previously considered by OWCP. Consequently, he is not entitled to further review of the merits of his claim based on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

In support of his reconsideration request, appellant resubmitted copies of Dr. Mollohan’s September 19, November 15, 2022, and January 23, 2023 reports which were previously reviewed and considered by OWCP. The Board has held that the submission of evidence or argument that repeats or duplicates evidence or argument previously of record does not constitute a basis for

4
20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008). 5 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b. 6 Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).
7
Id. at § 10.608(b); S.K., Docket No. 22-0248 (issued June 27, 2022); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

4 reopening a case.8 Thus, appellant is not entitled to a review of the merits of his claim based on the third above-noted requirement under section 20 C.F.R. § 10.606(b)(3).9

The Board, therefore, finds that appellant has not met any of the three requirements under 20 C.F.R. § 10.606(b)(3). Thus, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

8
J.B., Docket No. 22-1166 (issued April 3, 2023); S.H., Docket No. 22-1179 (issued January 17, 2023); S.E., Docket No. 17-0222 (issued December 21, 2018); T.H. Docket Nos. 17-1578 and 17-1651 (issued April 26, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).

9
Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., supra note 7.

10
See J.B., supra note 8; A.M., Docket No. 21-1413 (issued March 28, 2022); D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

5
 ORDER

IT IS HEREBY ORDERED THAT the June 30, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 13, 2024
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

6