United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

U.S. POSTAL SERVICE, FORT HAMILTON 

STATION, Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 14-284 

Issued: May 27, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 15, 2013 appellant filed a timely appeal from a May 21, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for 

reconsideration.1

 As more than 180 days elapsed from the last merit decision dated April 4, 2012 

to the filing of this appeal, the Board lacks jurisdiction to review the merits of his claim pursuant 

to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, but 

has jurisdiction over the nonmerit decision. 

 1

 Under the Board’s Rules of Procedures, an appeal must be filed in 180 days from the most recent OWCP 

decision. One hundred and eight days from May 21, 2013 was November 18, 2013. Since using November 20, 

2013, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date 

of the postmark is considered the date of filing. The appeal was postmarked on November 15, 2013, which renders 

the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request to reopen his claim for 

further merit review under 5 U.S.C. § 8128. 

FACTUAL HISTORY 

On April 3, 2003 appellant, then a 61-year-old custodian, filed a traumatic injury claim 

alleging that on March 31, 2003 he injured his lower back in the performance of duty. OWCP 

accepted his claim for a lumbar strain. 

By decision dated April 4, 2012, OWCP granted appellant schedule awards for a two 

percent permanent impairment of each lower extremity.3 The period of the awards ran for 11.52 

weeks from April 29 to July 18, 2008. 

In an appeal request form dated September 7, 2012, received by OWCP on March 11, 

2013, appellant requested reconsideration. In an accompanying statement, he related that his 

herniated disc had worsened and that he experienced radiating pain into both legs. Appellant had 

to use a can to walk two blocks without stopping. 

By decision dated May 21, 2013, OWCP denied appellant’s request for reconsideration. 

It found that he did not submit evidence or raised an argument sufficient to warrant reopening his 

case for further review of the merits under section 8128 of FECA. 

On appeal, appellant contends that he has experienced back problems since 1993. He 

relates that he has constant pain when walking and has undergone three magnetic resonance 

imaging scan studies. Appellant submitted copies of medical reports already of record. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) submit relevant and pertinent new evidence not previously 

considered by OWCP.5

 To be entitled to a merit review of an OWCP 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.6

 When a claimant fails to meet one of the above standards, OWCP 

 3

 OWCP indicated that it was granting appellant a schedule award for the upper rather than the lower extremities; 

however, this appears to be a typographical error. The maximum number of weeks of compensation for the loss of a 

leg is 288 weeks. Two percent of 288 weeks equals 5.76, which when multiplied by 2 equals 11.52 weeks of 

compensation. OWCP thus properly based the period of the award on a finding of a two percent impairment of each 

lower extremity. 

4 See supra note 2. Section 8128(a) of FECA provides 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 § 10.607(a). 
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will deny the application for reconsideration without reopening the case for review on the 

merits.7

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.8

 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.9

 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.10

ANALYSIS 

OWCP, in its most recent merit decision dated April 4, 2012, granted appellant schedule 

awards for a two percent impairment of each lower extremity. In a correspondence received 

March 11, 2013, appellant requested reconsideration. 

As noted above, the Board does not have jurisdiction over the April 4, 2012 OWCP 

decision. The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. 

In his request for reconsideration received March 11, 2013, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. He did not identify a specific point of 

law or show that it was erroneously applied or interpreted. Appellant did not advance a new and 

relevant legal argument. He argued that he experienced pain radiating into his legs bilaterally as 

a result of a herniated disc. The underlying issue in this case is whether appellant submitted 

sufficient medical evidence to establish that he had more than a two percent permanent 

impairment to each lower extremity. As this is a medical issue it must be addressed by relevant 

medical evidence.11 A claimant may be entitled to a merit review by submitting pertinent new 

and relevant evidence, but appellant did not submit any pertinent new and relevant medical 

evidence supporting reconsideration. 

On appeal, appellant indicates that his back problems began in 1993. He notes that he 

has undergone multiple diagnostic studies and experiences pain when walking. A claimant may 

request an increased schedule award based on evidence of new exposure or medical evidence 

showing progression of an employment-related condition resulting in permanent impairment or 

increased impairment.12 As discussed, however, appellant did not submit any new evidence 

supporting an increased impairment or raise any argument relevant to the issue of whether he has 

more than a two percent permanent impairment of each lower extremity. His lay opinion is not 

 7 Id. at § 10.608(b). 

8 F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001). 

9 P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000). 

10 Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000). 

11 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

12 See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994). 
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relevant to the medical issue in this case, which can only be resolved through the submission of 

probative medical evidence from a physician.13

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP or 

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request to reopen his claim for 

further merit review under 5 U.S.C. § 8128. 

ORDER 

IT IS HEREBY ORDERED THAT the May 21, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 27, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).