John Francis Fitzpatrick v. General Dynamics (Board decision, February 26, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's denial of benefits for a claimed cervical spine injury under the Longshore Act and the denial of reconsideration. Its dismissal of the appeal from an older stipulated compensation order as untimely leaves that order in place. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

John Francis Fitzpatrick received compensation for a work-related right foot and ankle injury at General Dynamics. He later claimed that an examination of his foot caused a cervical spine injury and sought additional benefits. The Board upheld the judge's decision to credit an unrebutted medical opinion that found no anatomical link between the examination and the spine condition. It also rejected Fitzpatrick's challenges to the agency's authority over his claims and his assertion that the employer had lost the Act's protection against a separate lawsuit. The Board affirmed the spine injury denial and the denial of reconsideration, and dismissed his appeal from an earlier stipulated order as late.

Decision snapshot

• Authority: Work injury presumption under 33 U.S.C. § 920(a); exclusive liability under § 905(a).
• Outcome: Cervical spine injury benefits denial affirmed; appeal from older stipulated order dismissed as untimely.
• Key point: The judge could credit an explained medical opinion over unsupported testimony when deciding whether a later condition stemmed from a covered injury.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 23-0401

JOHN FRANCIS FITZPATRICK )
)
Claimant-Petitioner )
)
v. )
)
NOT-PUBLISHED
GENERAL DYNAMICS
)
)
and ) DATE ISSUED: 02/26/2025
)
INSURANCE COMPANY OF THE STATE )
OF PENNSYLVANIA c/o BROADSPIRE, A )
CRAWFORD COMPANY
)
)
Employer/Carrier- )
Respondents ) DECISION and ORDER

Appeal of the Stipulated Compensation Order, Decision and Order Denying Benefits, and Decision and Order Denying Motion for Reconsideration of Stewert F. Alford, Administrative Law Judge, U.S. Department of Labor.

John Francis Fitzpatrick, Ramona, California.

John T. Marin (Laughlin, Falbo, Levy & Moresi LLP), Sacramento, California, for Employer and its Carrier.

Before: GRESH, Chief Administrative Law Judge, BOGGS, and JONES, Administrative Law Judges.

PER CURIAM:

Claimant, without representation, appeals Administrative Law Judge (ALJ) Stewert F. Alford’s Stipulated Compensation Order (2018-LHC-00975), Decision and Order Denying Benefits, and Decision and Order Denying Motion for Reconsideration (2021- LHC-00244) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act).1 We must affirm the ALJ’s findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant injured his right foot and ankle while working for Employer on December 11, 2015. Hearing Transcript - April 25, 2022 (TR) at 59; see generally EX 1. He filed a claim for compensation under the Act. TR at 61-62; Hearing Transcript – January 10, 2022 (TR (Jan. 10, 2022)) at 11, 17 CX 6. Employer provided medical treatment for the right foot injury and paid Claimant temporary total disability benefits from December 12, 2015, through August 8, 2016, and from April 26, 2018, through May 20, 2020. 2 EX 7. The parties resolved their dispute regarding disability benefits from August 6, 2016, through April 25, 2018, via joint stipulations, which they submitted to the ALJ for approval. Specifically, Employer agreed to pay, and Claimant agreed to accept, $42,000 for that period. Stip. Comp. Order, 2018-LHC-00795 (Jan. 31, 2020). On January 31, 2020, the ALJ issued a Stipulated Compensation Order approving the parties’ stipulations, finding they were reasonable, adequate, and not the result of duress, and he remanded the case to the district director for further administration of the Joint Stipulations and the right foot and ankle injury claim until Claimant reached maximum medical improvement.3

While his initial right foot and ankle injury claim was pending before the Office of Administrative Law Judges (OALJ), Claimant filed a new claim for compensation (Form LS-203) in July 2019, alleging his cervical spine was injured when Dr. Kent Feldman

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Ninth Circuit because Claimant was injured in San Diego, California. 33 U.S.C.
§921(c); see Roberts v. Custom Ship Interiors, 35 BRBS 65, 67 n.2 (2001), aff’d, 300 F.3d 510, (4th Cir. 2002); 20 C.F.R. §702.201(a).
2 Claimant underwent right ankle surgery at the Department of Veteran’s Affairs on

March 19, 2019. EXs 4, 6.
3 The ALJ determined there were no outstanding medical bills during the closed

period of disability and clarified the joint stipulations did not resolve any potential issues as to Claimant’s entitlement to compensation after April 25, 2018.

2 overextended Claimant’s right foot during an August 28, 2018 medical examination.4 TR at 18-19, 25, 63-64, 67.5 On July 17, 2019, Employer controverted the claim for a cervical spine injury, EX 1 at 3, and on May 20, 2020, it filed a notice of final payment (Form LS- 208) as to the right foot and ankle injury.6 EX 1 at 5. At the formal hearing,7 Claimant stated the issues for adjudication were: (1) whether Employer and its carrier concealed medical information and neglected treatment for his right foot and ankle injury; (2) whether such concealment led Employer to wrongfully terminate Claimant’s Longshore benefits and employment; and (3) whether those actions constitute a waiver of Employer’s exclusive liability under Section 5 of the Act, 33 U.S.C. §905(a). In the alternative, Claimant sought a decision on the compensability of his cervical spine injury. TR at 16- 17, 22-26.

The ALJ noted Employer stipulated that on December 11, 2015, Claimant sustained a work-related injury to his right foot, the injury is covered under the Act, and that Employer listed in its post-hearing brief as “undisputed facts” that it paid temporary total disability benefits through May 20, 2020, and “paid for Claimant's right foot medical treatment (excluding treatment [he received] by the Veteran’s Administration [Department of Veteran’s Affairs].” D&O at 6-7.8 As to Claimant’s exclusive remedy argument, the ALJ determined he lacked authority to decide whether the Act’s exclusive remedy provision applies and that this determination would need to be made by a state court or United States District Court. D&O at 18-19. Nevertheless, he found the Act would still provide the exclusive remedy for Claimant’s work injury even if Employer did make false statements or representations in handling Claimant’s claim for benefits. The ALJ next determined it is “unclear” whether he has the authority to provide Claimant relief under Section 31(c) of the Act, 33 U.S.C. §931(c), but still found there was insufficient evidence

4 Claimant testified he filed a Form LS-203 sometime in July or August 2019; however, the LS-203 was not submitted as an exhibit and does not appear in the evidentiary record. TR at 25, 67.
5 Claimant underwent cervical spine surgery at the Veterans’ Health Administration

(VA) on July 30, 2019. TR at 68; EX 6 at 3.
6 Employer stopped paying temporary total disability compensation based on the absence of medical evidence to support an ongoing disability. EX 1 at 5.
7 The first hearing was continued to allow the parties time to participate in proceedings before a settlement judge. See generally Hearing Transcript (Jan. 10, 2022).
8 The ALJ accepted Employer’s stipulations as supported by the evidentiary record.

D&O at 7.

3 to demonstrate Employer or Carrier knowingly or willfully made false statements or concealed medical information to reduce Claimant’s benefits. Therefore, he declined to impose sanctions under Section 31(c). D&O at 19-21.

Regarding the merits of Claimant’s cervical spine injury claim, the ALJ found Claimant invoked the Section 20(a) presumption that the injury is work-related, 33 U.S.C.
§920(a), and Employer rebutted it with substantial evidence to the contrary. Upon weighing the evidence, the ALJ found Claimant failed to prove by a preponderance of the evidence that he sustained a work-related cervical spine injury. D&O at 24-26.

Following issuance of the ALJ’s decision, Claimant filed a motion for reconsideration (Cl. M/Recon.) asserting he did not receive disability compensation or medical treatment under the Act and Employer did not produce evidence that it provided benefits for his right foot and ankle injury. The ALJ denied Claimant’s motion (D&O Deny Recon.), finding the arguments and issues raised were either previously addressed, irrelevant to the denial of benefits for the alleged cervical spine injury, or not before him.

On appeal, Claimant contends the Office of Workers’ Compensation Programs (OWCP) and the OALJ lack subject matter jurisdiction over his claim, so all decisions issued by both administrative bodies should be vacated, and the entirety of his claim should be dismissed without prejudice. In response, Employer urges dismissal of Claimant’s appeal and affirmance of the ALJ’s denial of benefits. Claimant filed a reply brief, reiterating his contentions.9

Claimant contends the OWCP and OALJ do not have subject matter jurisdiction over his claim because he did not personally initiate his claim by filing a Notice of Employee’s Injury or Death (Form LS-201) or Request for Examination and/or Treatment (Form LS-1). He argues that without these two forms, there is no “legitimate longshore claim.” Claimant Petition for Review (Cl. PR) at 7. Further, he maintains the OWCP cannot create a claim number based on Employer’s First Report of Injury (Form LS-202), as only he has the right to provide notice of his injury to the OWCP. Cl. PR at 8.

The Act provides coverage for injuries arising out of and in the course and scope of an employee’s maritime employment. 33 U.S.C. §§902(2)-(4), 903, 904. Where a claim

9 During the course of this appeal, Claimant filed a motion to expedite review and a

motion to certify facts to the United States District Court. The Benefits Review Board denied both motions in an Order dated April 9, 2024. Additionally, Claimant filed an appeal with the United States Court of Appeals for the Ninth Circuit, which dismissed the appeal due to lack of a final Board decision and, therefore, lack of jurisdiction. Fitzpatrick v. Director, OWCP, No. 24-04612 (9th Cir. Sept. 18, 2024).

4 for compensation comes within the provisions of the Act, the ALJ “shall have full power and authority to hear and determine all questions in respect of such claim.” 33 U.S.C.
§919(a).

We reject Claimant’s contention that only he may properly provide notice of an injury to the OWCP. When an employee sustains a work-related injury, the employee must provide notice of the injury to the employer and “also may give notice to the district director.” 20 C.F.R. §702.211(a) (emphasis added). Within ten days of an employee’s injury or from the date an employer has knowledge of an injury, it must file a report of injury (Form LS-202) with the district director. 20 C.F.R. §§702.201-205. Further, when an employer files a Form LS-202 to report a lost time injury, as in this case, a claim will be docketed by OWCP, and it will be assigned a case file number. Per the Longshore Procedural Manual, “creation of a case file signals the beginning of claims processing activity,” but it “does not establish eligibility for compensation.” Division of Longshore and Harbor Workers’ Compensation (DLHWC) Procedure Manual, Ch. 1-0400.10

In addition, it is undisputed that Claimant’s right foot and ankle injury came within the provisions of the Act. TR at 61-62; Cl. Post-Hearing Br. at 7; Emp. Pre-Hearing Statement at 5. It is also undisputed that Claimant sought benefits for his injuries under the Act by filing claims for compensation with the OWCP, and he requested formal adjudication of his claims by the ALJ. TR at 62-63, 67-68; TR (Jan. 10, 2022) at 11, 17; CX 6 at 1; CX 16; see also D&O at 2-3. Thus, the OWCP had subject matter jurisdiction to process Claimant’s claims under the Act, administer benefits under the Act, and refer the claims to the ALJ for formal adjudication. 33 U.S.C. §§902(7), 919; 20 C.F.R.
§§701.101-701.105, 702.311-702.319. In turn, the ALJ had subject matter jurisdiction to decide the issues presented with respect to Claimant’s claims. 33 U.S.C. §919(a), (d); 20 C.F.R. §§702.221, 702.332, 702.338. Accordingly, we reject Claimant’s challenges to the OWCP’s and OALJ’s subject matter jurisdiction over his Longshore claims.

Next, Claimant argues Employer waived its exclusive liability under Section 5(a), 33 U.S.C. §905(a). Except where an employer “fails to secure payment of compensation,” liability under the Act “shall be exclusive and in place of all other liability” of the employer to the employee for an accidental injury covered by the Act. 33 U.S.C. §905(a); Sample v. Johnson, 771 F.2d 1335, 1346 (9th Cir. 1985). The ALJ determined he lacked authority to decide whether the Act’s exclusive remedy provision applies, but correctly found the Act would still provide the exclusive remedy for Claimant’s work injury even if Employer did make false statements or misrepresentations in handling Claimant’s claim for benefits. D&O at 18-19; Sample, 771 F.2d at 1346; Brink v. Continental Ins. Co., 787 F.3d 1120,

10 https://www.dol.gov/agencies/owcp/dlhwc/lsproman/proman#01-0400

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1125-1126 (D.C. Cir. 2015); Barnard v. Zapata Haynie Corp., 975 F.2d 919, 920 (1st Cir. 1992); Atkinson v. Fates, McDonald & Co., 838 F.2d 808, 809-812 (5th Cir. 1988); see also Cruz v. Nat’l Steel and Shipbuilding Co., 910 F.3d 1263, 1267 (9th Cir. 2018).11

Claimant also alleges that Employer committed fraud under Section 31(c), 33 U.S.C. §931(c). Pursuant to Section 31(c), a person who “knowingly and willfully makes a false statement or representation for the purpose of reducing, denying, or terminating benefits” under the Act is subject to a fine, imprisonment, or both. 33 U.S.C. §931(c).12 The ALJ adequately considered Claimant’s allegations of fraud, discussed the relevant evidence, and found the evidence insufficient to support Claimant’s assertions that Employer or Carrier knowingly and willfully made a false statement or concealed medical information for the purpose of reducing, denying, or terminating his benefits under the Act. D&O at 20-21. As the ALJ’s findings are rational, supported by substantial evidence, and in accordance with law, we affirm them. Sample, 771 F.2d at 1346-1347; Irby v. Blackwater Security Consulting, 44 BRBS 17, 26-27 (2010).

Turning to the merits of Claimant’s entitlement to benefits for his cervical spine injury, Claimant alleged he was injured when Dr. Feldman overextended his right foot during a physical examination, which necessitated his subsequent cervical spine fusion surgery. TR at 18-19, 63-64, 67-68; EX 6 at 3. Employer disputed the claim.

If a claimant invokes the Section 20(a) presumption by producing some evidence or allegation of a harm and working conditions that could have caused, aggravated, or

11 Claimant’s civil rights complaint against the OWCP was dismissed by the United

States District Court for the Southern District of California on May 17, 2022, for lack of subject matter jurisdiction and failure to state a claim. In denying Claimant’s motion to amend his complaint to add Employer and Carrier as defendants and dismissing his case with prejudice, the court noted Claimant’s allegations against Employer and Carrier, i.e., misrepresenting medical facts, concealment, and fraud, fall squarely within the Act’s exclusivity provisions. Fitzpatrick v. U.S. Dep’t of Labor, No. 3:21-cv-01561, 2022 WL 1556319, at 14 (S.D. Cal. May 17, 2022) (citing 33 U.S.C. §§905(a), 931(a)).
12 Reports of suspected fraud can be made to the ALJ, who may, but is not required

to, refer the matter to the OWCP for further action. Upon receipt of the referral from the ALJ, the district director will investigate the allegation if warranted by the facts. After the allegation is investigated, a recommendation will be made to either refer the matter to the United States Attorney for prosecution or to close the file if no basis exists for prosecution. DLHWC Procedure Manual, Ch. 03-0700, https://www.dol.gov/agencies/owcp/dlhwc/lsProMan/ProMan#03-0700.

6 accelerated the harm, as in this case, his injury is presumed to be work-related. Rose v. Vectrus Systems Corp., 56 BRBS 27, 37 (2022) (en banc), appeal dismissed, (M.D. Fla. Aug. 24, 2023). Once invoked, the burden shifts to the employer to rebut the presumption by producing “substantial evidence” showing workplace conditions did not cause, contribute to, or aggravate the claimant’s condition. Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 650-651 (9th Cir. 2010); Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615, 618 (9th Cir. 1999) (per curiam); Ramey v. Stevedoring Services of America, 134 F.3d 954, 959 (9th Cir. 1998); O’Kelly v. Dep’t of the Army/NAF, 34 BRBS 39 (2000). If the employer rebuts the Section 20(a) presumption, it no longer applies, and the issue of causation must be resolved on the record as a whole with the claimant bearing the burden of persuasion. Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994); Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996).

To rebut the Section 20(a) presumption, Employer submitted the opinion of Dr.
Williams Tontz, Jr. At Employer’s request, Dr. Tontz examined Claimant on March 2, 2021. See generally EX 6. Based on his review of Claimant’s medical records and a physical examination, Dr. Tontz opined Claimant’s cervical spinal fusion is not work- related and Claimant’s assertion that Dr. Feldman injured or aggravated his cervical spine while examining his right foot “is not factual on an anatomic basis.” EX 6 at 6. Dr. Tontz’s opinion constitutes substantial evidence to rebut the presumption by casting doubt on the causal connection between Claimant’s medical treatment for his work-related right foot injury and his alleged cervical spine injury and subsequent cervical fusion surgery. Ogawa, 608 F.3d at 651. Therefore, we affirm the ALJ’s finding that Employer rebutted the Section 20(a) presumption as to Claimant’s alleged cervical spine injury and subsequent cervical fusion surgery. D&O at 24. With the presumption removed from the case, the ALJ appropriately proceeded to weigh the evidence as a whole with Claimant bearing the burden of persuasion. Greenwich Collieries, 512 U.S. 267; Santoro, 30 BRBS 171.

In support of his cervical spine injury claim, Claimant offered his own testimony that he was injured when Dr. Feldman overextended his right foot during a physical examination. Upon weighing the evidence, the ALJ permissibly afforded controlling weight to Dr. Tontz’s opinion over Claimant’s testimony. 13 He found Dr. Tontz well-

13 The ALJ gave little weight to Claimant’s testimony because none of the contemporaneous medical records documented the incident with Dr. Feldman or supported Claimant’s theory. Specifically, the ALJ afforded no weight to Claimant’s testimony asserting a connection between Dr. Feldman’s examination and his cervical spine injury because Claimant is not a medical doctor and “cannot credibly testify to the relationship between a foot manipulation and a spine injury.” D&O at 25. He also gave no weight to Claimant’s testimony relaying the “undocumented statements” of an “[a]n unnamed doctor with unknown credentials,” who “allegedly told Claimant that his cervical spine problems 7 qualified to render an opinion as to the cause of Claimant’s cervical spine injury and found his opinion is supported and explained by the record.14 Based on Dr. Tontz’s well-reasoned opinion that was uncontradicted by any other medical evidence, the ALJ determined Claimant failed to prove by a preponderance of the evidence that he sustained a compensable cervical spine injury. Therefore, the ALJ denied benefits for Claimant’s alleged cervical spine injury. D&O at 26. Because the ALJ’s credibility determinations are not “inherently incredible or patently unreasonable,” Todd Pac. Shipyards Corp. v. Director, OWCP, 914 F.2d 1317, 1319 (9th Cir. 1990), and his weighing of the evidence is rational and supported by substantial evidence, Ogawa, 608 F.3d at 648, we affirm the denial of disability compensation and medical benefits for Claimant’s alleged spine injury.

Finally, we address whether the ALJ abused his discretion in denying Claimant’s Motion for Reconsideration. Duran v. Interport Maintenance Corp., 27 BRBS 8, 13 (1993). In support of his request for reconsideration of the denial of benefits, Claimant asserted his initial claim “alleging negligence and inadequate medical treatment” for his right foot and ankle injury was not addressed in the ALJ’s decision,15 the benefits he received for his right foot and ankle injury were not paid under the Act,16 and Employer did not comply with the Act because it either failed to produce various OWCP forms proving benefits were paid or did not timely file required forms with the OWCP.17 Because he contended there was no evidence benefits were paid pursuant to the Act and that Employer negligently handled the claim and did not comply with the filing requirements of the Act, Claimant reasserted his contention that Employer is “not afforded tort protection

are related to his treatment for his foot,” because the doctor’s identity and credentials are not in the record and his reasoning is not fully explained. Id. at 25-26.
14 Moreover, the ALJ observed there is no medical opinion in the record that refutes

Dr. Tontz’s opinion. D&O at 26.
15 Claimant specifically challenged “the change in scope of his injury claim,” which

“itself became limited only to the alleged consequential injury caused by Dr. Kent Feldman.” Cl. M/Recon. at 1.
16 Claimant’s assertion that his benefits were paid through short term disability and

not the Act was first raised in his motion for reconsideration.
17 Claimant contended the absence of such forms from the evidence of record constitutes “new evidence … that has direct relevance in the instant case.” Cl. M/Recon at 2.

8 under the Act.” Cl. M/Recon at 2-5.18 For the following reasons, we affirm the ALJ’s denial of Claimant’s motion for reconsideration.

At the January 10, 2022 hearing, Claimant expressed his concerns regarding Employer’s denial of his requests for additional medical treatment for his “original industrial accident [right foot injury] with the additional injury [right ankle injury]” and ankle surgery, as well as for his alleged cervical spine injury and spine surgery. TR (Jan. 10, 2022) at 11-17. He explained the previous medical treatment disputes are relevant to his exclusive liability waiver argument because
if it is ruled that yes they concealed the medical information, then the second question that I have is exclusive – liability exclusive remedy still their protection? Because without that protection I’m permitted to sue the Employer-Carrier. But with the exclusive remedy protection in place, I cannot sue them, because they would have theoretically completed the medical treatment for me. And they swore that I was – actually back to medical improvement and not continuing along with any other injuries.
There’s a reason for MMI in August 16 of 2016. And it wasn’t until 2019 before I got the surgery.

Id. at 13. Before continuing the hearing, the ALJ granted Claimant’s motion, in part, to amend his claim and instructed him to file an amended Form LS-203 listing all cognizable

18 Along with his motion, Claimant enclosed a document titled “Notice of Complaint

for Alleging Negligence and Inadequate Medical Treatment: Declaration of John Fitzpatrick,” dated April 25, 2018, in which Claimant alleged Employer neglected to provide additional medical treatment for his right foot injury. He filed the complaint with ALJ Jennifer Gee under case number 2018-LHC-00795 and requested she order the requested medical treatment. See CX 16 (Order Denying Request for Expedited Hearing and for Assignment of a Medical Officer, 2018-LHC-00795 (Jun. 19, 2018) (ALJ Gee). Claimant ultimately sought additional medical treatment through the VA and underwent ankle surgery on March 19, 2019. EX 6 at 34-35; TR at 21-22, 66-67. A few weeks prior to surgery, Employer agreed to authorize the surgery, TR at 21-22, and the parties subsequently resolved the disputed period of disability compensation. See Stip. Comp. Order, 2018-LHC-00795 (Jan. 31, 2020) (the ALJ determined there were no outstanding medical bills during the closed period of disability).

9 claims under the Act to be adjudicated at the hearing. Id. at 20-22. Claimant did not file an amended LS-203.19 D&O at 6.

At the April 25, 2022 hearing, Claimant stated he was not seeking adjudication of his current disability or the amount of Employer’s liability for compensation for his right foot and ankle injury. TR at 15-22. Instead, he sought a determination as to whether Employer concealed medical information about his right foot and ankle injury and neglected to provide medical treatment for it and, by doing so, whether Employer waived the exclusive liability provision. TR at 22-26.

In denying Claimant’s motion for reconsideration, the ALJ rejected each of Claimant’s assertions. He explained Claimant’s claim for the right foot and ankle injury was not before him,20 and the facts, issues, and disputes set forth in Claimant’s motion and the complaint Claimant submitted with his motion are not relevant to the denial of benefits in Claimant’s claim for his alleged cervical spine injury.21 Finally, the ALJ reiterated he is unable to provide Claimant with a waiver of Section 5(a)’s exclusive remedy provision. Citing Rule 59(e) of the Federal Rules of Civil Procedure, the ALJ concluded Claimant failed to present newly discovered evidence, clear error, or an intervening change in controlling law, and, therefore, denied reconsideration of his decision denying benefits. As the ALJ adequately addressed each of Claimant’s assertions and his reasons for rejecting Claimant’s motion for reconsideration are neither arbitrary, capricious, nor an abuse of

19 At the January 10, 2022 hearing, Claimant stated that sometime in March 2018,

he filed a Form LS-203 to include the right ankle tendon tear, and that he subsequently filed a Form LS-203 to include the cervical spine injury after he underwent spine surgery in July 2019. TR (Jan. 10, 2022) at 11, 17.
20 While the parties included the right foot and ankle injury as an issue for adjudication, the ALJ found in his original decision denying benefits that the right foot and ankle injury “has been settled and paid” and “does not appear” to be before him. As “neither [party] briefed the issue,” he declined to order any repayment. D&O at 27.
21 Specifically, the ALJ found Claimant’s disputes concerning the administration of

his right foot and ankle injury claim and the categorization of the benefits he received for that injury are not relevant to his alleged cervical spine injury and have no impact on the ALJ’s decision denying benefits. Further, the ALJ determined the “new evidence” Claimant cited does not constitute new evidence, and the fact that the OWCP forms are not in the evidentiary record (LS-201, LS-206) or were not filed timely (LS-202, LS-207, LS- 208) does not impact the ALJ’s decision denying benefits for Claimant’s alleged cervical spine injury. D&O Deny Recon. at 2-3.

10 discretion, Duran, 27 BRBS at 13, we affirm the Decision and Order Denying Motion for Reconsideration.

Accordingly, we affirm the ALJ’s Decision and Order Denying Benefits and Decision and Order Denying Motion for Reconsideration.22

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JUDITH S. BOGGS
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

22 To the extent Claimant seeks review of the Stipulated Compensation Order (Stip.

Comp. Order, 2018-LHC-00795 (Jan. 31, 2020)), we dismiss that portion of his appeal as untimely, as neither party appealed the order within thirty days from when it was filed by the district director. 33 U.S.C. §§919, 921; 20 C.F.R. §802.205(a), (c).

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