United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

DEPARTMENT OF THE ARMY, JOINT 

MUNITIONS & LETHALITY LIFE CYCLE 

MANAGEMENT COMMAND, PINE BLUFF 

ARSENAL, Pine Bluff, AR, Employer 

__________________________________________ 

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Docket No. 15-658 

Issued: June 8, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 30, 2015 appellant filed a timely appeal from an October 9, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from the last merit decision of July 2, 2014 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 claim.2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

of his claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board’s review of a case is limited to the evidence that was before OWCP at the time it issued its final 

decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
2

FACTUAL HISTORY 

On May 16, 2013 appellant, then a 42-year-old heavy mobile equipment repair inspector, 

filed an occupational disease claim alleging that his work as an automobile paint and body 

mechanic caused pain in both shoulders, the right shoulder greater than the left. He attributed his 

shoulder condition to the use of air powered tools and painting long periods of time on vehicles 

holding paint gun at all angles. Appellant first realized his condition and that it was caused or 

aggravated by his employment on January 1, 2000. The claim form did not indicate that 

appellant had stopped work. 

By decision dated July 23, 2013, OWCP denied the claim as the medical evidence failed 

to establish that the claimed medical condition was causally related to the established workrelated events. 

Appellant requested reconsideration on September 12, 2013 and submitted a 

September 3, 2013 report from Dr. John E. Harris, a Board-certified family practitioner. Based 

upon an April 27, 2012 magnetic resonance imaging (MRI) scan study, Dr. Harris diagnosed 

evidence of partial thickness tear or tendinitis in the distal end of the supraspinatus tendon, 

tendonosis in the distal end of the infraspinatus tendon, superior glenoid labral tear or 

degenerative change, and degenerative or arthritic changes in the acromioclavicular joint. He 

noted that appellant had no shoulder injuries prior to his federal employment. Dr. Harris 

concluded that, based upon appellant’s job description and his self-reported work history, the 

type of work appellant performed would cause musculoskeletal damage. 

By decision dated December 13, 2013, OWCP denied modification of its July 23, 2013 

decision. It found that the report of Dr. Harris was insufficient as it failed to provide a 

rationalized discussion based on objective findings as to the relationship, if any, of appellant’s 

shoulder condition and his work activities. 

On April 14, 2014 OWCP received appellant’s April 2, 2014 request for reconsideration. 

In support of his request, appellant submitted February 13 and April 2, 2014 letters, a 

February 20, 2014 medical report, and a March 18, 2014 work excuse report from Dr. David L. 

Gilliam, a Board-certified orthopedic surgeon. 

By decision dated July 2, 2014, OWCP denied modification of its December 13, 2013 

decision. It found Dr. Gilliam’s reports were of diminished probative value as he failed to 

provide a well-reasoned medical opinion identifying a specific diagnosis and the etiology of the 

diagnosis. OWCP again found that he failed to provide a detailed discussion of any possible 

preexisting degenerative process or shoulder conditions, nor a rationalized discussion based on 

objective findings as to the relationship, if any, of appellant’s shoulder condition and his work 

activities. 

On August 28, 2014 OWCP received appellant’s August 25, 2014 request for 

reconsideration. In support of his request, appellant submitted an August 11, 2014 statement 

wherein he alleged that the reports from Dr. Harris and Dr. Gilliam established his claim, and a 

duplicative copy of Dr. Harris’ September 3, 2013 report. 
3

By decision dated October 9, 2014, OWCP denied reconsideration without reviewing the 

merits of the case. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

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.4

 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.5

 

ANALYSIS 

The Board has no jurisdiction to review the merits of appellant’s claim. The most recent 

decision on the merits of his claim was OWCP’s July 2, 2014 decision denying modification of 

its prior decision. Appellant had 180 days to appeal the July 2, 2014 decision to the Board,6

 but 

he did not do so. The Board therefore lacks jurisdiction to review the merits of his claim. 

The underlying issue on reconsideration is whether appellant has submitted sufficient 

medical evidence to establish causal relationship between his work activities and his shoulder 

conditions. Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP 

erroneously applied or interpreted a specific point of law. Appellant’s statement further 

explaining his employment and his own opinion that the reports from Dr. Harris and Dr. Gilliam 

established his claim did not constitute relevant medical evidence pertinent to the underlying 

issue of causal relationship.7

 Therefore, it is not sufficient to require OWCP to reopen his claim 

for consideration of the merits. 

 The Board also finds that he did not provide any relevant or pertinent new medical 

evidence warranting the reopening of the case on the merits. Dr. Harris’ September 3, 2013 

medical report was previously reviewed in OWCP’s December 13, 2013 decision. This 

duplicative medical report was insufficient to reopen appellant’s claim for further merit review.8

 

The Board finds that appellant did not show that OWCP erroneously interpreted a specific point 

of law, advance a relevant legal argument not previously considered, or constitute relevant and 

pertinent new evidence not previously considered by OWCP. Appellant did not meet any of the 

 3

 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). 

4

 20 C.F.R. § 10.606(b)(2). 

5 Id. at § 10.608(b). 

6 Id. at § 501.3. 

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

8 M.W., Docket No. 15-499 (issued April 10, 2015). 
4

regulatory requirements and OWCP properly declined to reopen his claim for further merit 

review.9 

On appeal appellant asserts that he had no knowledge of the three-year statutory time 

period for filing his claim. However, given the occupational nature of his claim, OWCP has 

determined that the claim was timely filed.10 Appellant’s claim was not denied based on 

timeliness. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 5 

U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the October 9, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 8, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the 

case for a review on the merits). 

10 The time limitation begins to run on the date of last exposure to the implicated employment factors. See W.L., 

59 ECAB 362 (2008).