United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.J., Appellant 

and 

DEPARTMENT OF THE ARMY, RED RIVER 

ARMY DEPOT, Texarkana, TX, Employer 

__________________________________________ 

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Docket No. 15-795 

Issued: June 15, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 27, 2015 appellant filed a timely appeal from a February 11, 2015 nonmerit 

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

reconsideration. As more than 180 days elapsed between the last merit decision of OWCP dated, 

January 31, 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 to review the 

merits of this case.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 See 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 In a September 17, 2014 decision, the 

Board affirmed a January 31, 2014 OWCP merit decision denying appellant’s occupational 

disease claim, finding that the medical evidence failed to establish that the accepted work 

activity, namely, driving a forklift over bad potholes and being exposed to airborne metals and 

chemicals while driving a forklift 10 hours a day, 6 to 7 days a week, caused or contributed to a 

back and left eye condition. The Board also affirmed OWCP’s March 18, 2014 nonmerit 

decision, denying appellant’s request for reconsideration. The Board found that his request did 

not satisfy the criteria for obtaining a merit review of his case. The facts relevant to this appeal 

are set forth below. 

On December 2, 2013 appellant, then a 47-year-old forklift operator, filed an 

occupational disease claim alleging that on April 11, 2012 he first became aware of his back 

injury and detached retina and realized that they were caused by driving over potholes at work. 

The employing establishment controverted the claim, contending that it was unaware of 

appellant’s claimed injuries, there was insufficient proof of a causal relationship between his 

condition and employment. The employing establishment also reported that he did very little 

forklift work. Appellant retired on disability from the employing establishment on April 8, 2013. 

Following issuance of the Board’s September 17, 2014 decision appellant, on 

December 25, 2014, requested reconsideration before OWCP and submitted a December 21, 

2014 medical report, from Dr. Roshan L. Sharma, a Board-certified physiatrist, who reported that 

an April 11, 2012 cervical magnetic resonance imaging (MRI) scan showed multilevel 

significant stenosis at C3-4, C4-5, C5-6, and C6-7 levels of the neck. Appellant had moderate 

spinal stenosis at each level except C5-6 where he was diagnosed with moderately severe 

stenosis of the spinal canal with flexing of the spinal cord from a central disc osteophyte 

complex. He also had multilevel degenerative changes in his cervical spine. 

Dr. Sharma advised that an April 11, 2012 lumbar MRI scan showed severe facet 

arthropathy at the L2-3 level, moderate facet arthropathy at the L3-4 level, and a disc protrusion 

with moderate-to-severe left foraminal narrowing at the L5-S1 level. He noted that appellant 

was known to have had a significant eye problem dating back to 2002 with multiple surgeries for 

a detached retina. Dr. Sharma related that, while appellant’s actual visual acuity was not known, 

the eye problem had led to chronic headache. He advised that appellant’s overall function had 

been significantly restricted, noting difficulty with repetitive bending, stooping, and crawling. 

Appellant was restricted to lifting, pushing, and pulling 20 pounds. Dr. Sharma stated 

that working at and above shoulder level in a repetitive fashion would be difficult for appellant 

because of his cervical spinal stenosis. Repetitive use of appellant’s upper extremities would 

aggravate his chronic neck pain. Prolonged sitting, walking, or standing was difficult. 

Dr. Sharma restricted these activities. Working at height would be unsafe for appellant. 

Dr. Sharma opined that appellant was permanently disabled due to his current medical condition 

and significant restrictions. 

 3

 Docket No. 14-1028 (issued September 17, 2014). 
3

In a February 11, 2015 decision, OWCP denied further merit review of appellant’s claim. 

It found that his request for reconsideration did not raise any substantive legal questions or 

include new and relevant evidence. 

LEGAL PRECEDENT 

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

OWCP’s regulation 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) constitute 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

 Section 10.608(b) of the implementing regulations state that any 

application for review that does not meet at least one of the requirements listed in 20 C.F.R. 

§ 10.606(b)(2) will be denied by OWCP without review of the merits of the claim.7

ANALYSIS 

In support of his December 25, 2014 request for reconsideration, appellant neither 

demonstrated that OWCP erroneously applied or interpreted a specific point of law, nor did he 

advance a relevant legal argument not previously considered by OWCP. He submitted a 

December 21, 2014 report from Dr. Sharma that had not been previously considered by OWCP 

or the Board. This evidence, while new, is not relevant to the issue of causal relationship. 

Dr. Sharma opined that appellant’s permanent disability was due to his diagnosed cervical and 

lumbar conditions and significant physical restrictions. He, however, did not address whether 

appellant’s medical conditions and restrictions were caused by the accepted employment factors. 

The submission of evidence or argument that does not address the particular issue involved does 

not constitute a basis for reopening a case.8

 The Board finds, therefore, that Dr. Sharma’s report 

is not relevant and pertinent and thus, insufficient to reopen appellant’s claim for a merit review. 

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

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

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

 4 Supra note 1. 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

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

8 R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005). 
4

ORDER 

IT IS HEREBY ORDERED THAT the February 11, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 15, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board