United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.W., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

SPECIAL OPERATIONS COMMAND, 

RANDOLPH AIR FORCE BASE, TX, Employer 

__________________________________________ 

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Docket No. 15-499 

Issued: April 10, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 8, 2015 appellant, through counsel, filed a timely appeal from a 

December 16, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying his request for reconsideration. Because more than 180 days elapsed since the 

most recent merit decision dated May 2, 2011 and the filing of this appeal on January 8, 2015, 

the Board lacks jurisdiction to review the merits of appellant’s case pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the December 16, 2014 OWCP decision, appellant submitted 

new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued 

its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

On appeal, counsel contends that OWCP’s decision is contrary to law and fact. 

FACTUAL HISTORY 

This case was previously before the Board.3

 Briefly, on March 25, 2009 appellant, a 54-

year-old wood worker/forklift operator, filed a traumatic injury claim (Form CA-1) alleging that 

he sustained a right shoulder injury in the performance of duty on March 24, 2009 while pushing 

a sheet of plywood. By decision dated May 2, 2011, OWCP denied the claim on the basis that 

the medical evidence was insufficient to establish a causal relationship between appellant’s 

condition and the March 24, 2009 employment incident. In the most recent appeal of the Board, 

in a decision dated January 27, 2014, it affirmed OWCP’s March 21, 2013 decision denying 

appellant’s request for reconsideration as it was not timely filed and did not establish clear 

evidence of error. The facts of the case, as set forth in the prior decision, are incorporated by 

reference. 

On December 5, 2014 appellant, through counsel, requested reconsideration and 

resubmitted medical evidence dated October 6, 2009 through October 31, 2011 from Dr. Mimi 

Zumwalt, a Board-certified orthopedic surgeon, which were previously considered by OWCP. 

Dr. Zumwalt diagnosed a torn right rotator cuff based on clinical examination and diagnostic 

studies. On October 6, 2009 she indicated that appellant had a history of a lifting injury about 30 

years prior and had noticed a pop and pain while pushing plywood. Dr. Zumwalt reported on 

October 24, 2001 that she treated appellant for a work-related shoulder injury sustained at work 

two years prior. 

By decision dated December 16, 2014, OWCP denied appellant’s request for 

reconsideration of the merits, finding that he did not submit pertinent new and relevant evidence 

and did not show that it erroneously applied or interpreted a point of law not previously 

considered by OWCP. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as 

a matter of right. It vests OWCP with discretionary authority to determine whether it will review 

an award for or against compensation.4

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).5 

 3

 Docket No. 13-1816 (issued January 27, 2014). In an appeal request form postmarked June 4, 2011, appellant 

requested a telephonic oral hearing before an OWCP hearing representative. By decisions dated July 13, 2011 and 

August 24, 2012, OWCP denied appellant’s request for an oral hearing finding it untimely because it was not made 

within 30 days of its May 2, 2011 merit decision. On March 14, 2013 appellant, through counsel, requested 

reconsideration of the May 2, 2011 decision. 

4

 5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

5 See Annette Louise, 54 ECAB 783, 789-90 (2003). 
3

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

OWCP regulations provide that the evidence or argument submitted by 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) constitute relevant and 

pertinent new evidence not previously considered by OWCP.6 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.7

 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.8

 

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record9

 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.10 

ANALYSIS 

In support of his December 5, 2014 reconsideration request, appellant resubmitted 

medical evidence dated October 6, 2009 through October 31, 2011. The Board finds that this 

evidence did not require reopening appellant’s case for merit review because appellant had 

submitted the same evidence, which was previously reviewed by OWCP and this Board. As the 

reports repeat evidence already in the case record, it is duplicative and does not constitute 

relevant and pertinent new evidence. Thus, appellant has not established a basis for reopening 

his case.11 

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law or advanced a relevant legal argument not previously considered by the OWCP. Because 

appellant only submitted repetitive evidence with his request for reconsideration, the Board finds 

that he did not meet any of the necessary requirements and is not entitled to further merit 

review.12 

On appeal, counsel contends that OWCP’s decision is contrary to law and fact. Based on 

the findings and reasons stated above, the Board finds that counsel’s arguments are not 

substantiated. 

 6

 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009). 

7 Id. at § 10.607(a). 

8 Id. at § 10.608(b). 

9 See supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

10 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

11 See D.K., 59 ECAB 141 (2007). 

12 See L.H., 59 ECAB 253 (2007). 
4

CONCLUSION 

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

reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the December 16, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board