United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

WRIGHT-PATTERSON AIR FORCE BASE, 

OH, Employer 

__________________________________________ 

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Docket No. 14-12 

Issued: March 18, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On October 7, 2013 appellant, through her attorney, filed a timely appeal of a 

September 13, 2013 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying his request for reconsideration. As more than 180 days elapsed from the 

issuance of OWCP’s last merit decision of January 11, 2013 to the filing of this appeal, the 

Board has no jurisdiction over the merits of the case.1

 Pursuant to the Federal Employees’ 

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

only the May 21, 2013 nonmerit decision. 

 1

 20 C.F.R. § 501.3(e). The record contains a July 17, 2013 decision of the Board in Docket No. 13-659 (issued 

July 17, 2013). In the absence of further review by OWCP on the issue addressed by the July 17, 2013 Board 

decision, the subject matter reviewed is res judicata and is not subject to further consideration by the Board. 5 

U.S.C. § 8128; Joseph A. Brown, Jr., 55 ECAB 542 (2004). 

2

 5 U.S.C. §§ 8101-8193. 
2 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for merit 

review pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant’s attorney asserts that the September 13, 2013 decision is contrary 

to fact and law. 

FACTUAL HISTORY 

This case has previously been before the Board. In a July 17, 2013 decision, the Board 

found that appellant did not have more than 11 percent impairment to her right arm or any 

permanent impairment of her legs. The facts of the previous Board decision are incorporated 

herein by reference. 

On September 4, 2013 appellant, through her attorney, requested reconsideration. In her 

reconsideration request, she contended that the American Medical Association, The Guides

Newsletter, (hereinafter A.M.A., Guides Newsletter) of July/August 2009 constituted junk 

science with no scientific validity. Further the A.M.A., Guides Newsletter was not an official 

publication of the American Medical Association and was authored by a for-profit organization. 

Counsel presented additional arguments disputing the validity of the A.M.A., Guides Newsletter, 

concluding that it was improper for OWCP to rely on it for determining permanent impairment. 

He stated that the case should be remanded to OWCP. 

In a September 13, 2013 decision, OWCP denied merit review on the grounds that 

counsel’s argument was insufficient to warrant further merit review. Counsel’s contentions 

concerning the validity of the A.M.A., Guides were irrelevant and immaterial to the merit issue 

in this case. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.3

 Section 10.608(a) of the Code of Federal Regulations (C.F.R.) 

provides that a timely request for reconsideration may be granted if OWCP determines that the 

employee has presented evidence and/or argument that meet at least one of the standards 

described in section 10.606(b)(3).4

 This section provides that the application for reconsideration 

must be submitted in writing and set forth arguments and contain evidence that either: (1) shows 

that OWCP erroneously applied or interpreted a specific point of law; or (2) advances a relevant 

legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent 

new evidence not previously considered by OWCP.5

 Section 10.608(b) provides that when a 

request for reconsideration is timely but fails to meet at least one of these three requirements, 

 3 Id. at § 8128(a). 

4

 20 C.F.R. § 10.608(a). 

5 Id. at § 10.606(b)(3). 
3 

OWCP will deny the application for reconsideration without reopening the case for a review on 

the merits.6

 

ANALYSIS 

The only decision before the Board in this appeal is the decision of OWCP dated 

September 13, 2013 denying appellant’s application for review. Because more than one year had 

elapsed between the date of OWCP’s most recent merit decision dated January 11, 2013 and the 

filing of this appeal with the Board on October 7, 2013, the Board lacks jurisdiction to review the 

merits of appellant’s claim.7 

OWCP denied appellant’s claim for increased schedule awards in a January 11, 2013 

decision. Counsel requested reconsideration before OWCP on September 4, 2013 asserting that 

the A.M.A., Guides Newsletter constituted junk science and, as such, should not be utilized by 

OWCP in impairment evaluations. He further maintained that the A.M.A., Guides Newsletter

was not an official publication of the American Medical Association. The Board has long 

recognized the discretion of OWCP to adopt and utilize various editions of the A.M.A., Guides

for assessing permanent impairment.8

 

OWCP has adopted the sixth edition for rating impairment of the upper or lower 

extremities caused by a spinal injury, as provided in section 3.700 of its procedures which 

memorializes proposed tables outlined in the July to August 2009 A.M.A., Guides Newsletter.

9

 

The Board has recognized this adoption as proper in order to provide a uniform standard 

applicable to each clamant for a schedule award.10 Consequently, counsel’s argument has no 

reasonable color of validity.11 He did not establish an error on a specific point of law or advance 

a relevant legal argument. Counsel did not otherwise make any argument specific to appellant’s 

claim. Consequently, appellant was not entitled to a review of the merits of her claim based on 

the first and second above-noted requirements under section 10.606(b)(2).12

 6 Id. at § 10.608(b). 

7 Id. at § 501.3(e). 

8 See Harry D. Butler, 43 ECAB 859, 866 (1992). 

9

 FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010). 

10 See e.g., M.W., Docket No. 13-928 (issued August 15, 2013); P.B., Docket No. 11-1153 (issued February 13, 

2012); G.N., Docket No. 10-850 (issued November 12, 2010). 

11 See L.H., 59 ECAB 253 (2007) (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). 

12 20 C.F.R. § 10.606(b)(2). 
4 

With respect to the third above-noted requirement under section 10.606(b)(2), appellant 

submitted no additional evidence. As she did not submit relevant and pertinent new argument or 

evidence not previously considered, OWCP properly denied her reconsideration request.13

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 13, 2013 is affirmed. 

Issued: March 18, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 Id.