United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.R., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, U.S. PENITENTIARY, Atlanta, GA, 

Employer 

__________________________________________ 

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Docket No. 14-1836 

Issued: February 3, 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 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 18, 2014 appellant filed a timely appeal from a July 30, 2014 nonmerit 

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

has elapsed from the date of the last merit decision of April 4, 2013 to the filing date of the 

current appeal on August 18, 2014, pursuant to the Federal Employees’ Compensation Act1

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

of this case.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 July 30, 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

FACTUAL HISTORY 

This case was previously before the Board.3 In the most recent appeal, the Board, by 

decision dated November 15, 2012, set aside OWCP’s October 13, 2011 decision denying 

appellant’s claim for a schedule award and remanded the case for OWCP to further develop the 

medical evidence and obtain a more current second opinion examination to determine whether 

appellant was entitled to a schedule award for his accepted lumbar conditions.4 The facts of the 

case, as set forth in the prior decision, are incorporated by reference. 

OWCP referred appellant to Dr. Fernando Rojas, a Board-certified orthopedic surgeon, 

for a second opinion examination. In a March 1, 2013 report, Dr. Rojas determined that 

appellant had reached maximum medical improvement on May 7, 2007 and had zero percent 

permanent impairment of the lower extremities due to his accepted lumbar conditions, pursuant 

to the American Medical Association, Guides to the Evaluation of Permanent Impairment, sixth 

edition. 

On March 13, 2013 an OWCP medical adviser reviewed the medical evidence and 

concluded that appellant had no peripheral nerve impairment and was not entitled to a schedule 

award. 

By decision dated April 4, 2013, OWCP denied appellant’s schedule award claim on the 

basis that the medical evidence did not establish a ratable impairment of a scheduled member. 

On May 3, 2013 appellant requested reconsideration and submitted a functional capacity 

evaluation conducted by a physical therapist at the Forensic Capacity Evaluation Center on 

May 2, 2013 to determine his ability to work. He also submitted a permanent impairment 

worksheet also prepared on May 2, 2013 by a physician whose signature is illegible. 

By decision dated May 20, 2013, 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 OWCP erroneously applied or interpreted a point of law not previously considered. It noted 

that appellant had claims for lumbar conditions under File Nos. xxxxxx424 (sustained on 

June 26, 1989), xxxxxx749 (sustained on May 14, 1990), xxxxxx518 (sustained on 

September 15, 1990), xxxxxx626 (sustained on April 1, 2004), xxxxxx168 (sustained on 

April 15, 2004), and xxxxxx669 (sustained on July 20, 2004).5

 

 3

 The Board dismissed an appeal on December 21, 2011, docketed as No. 11-1390, at appellant’s request. Order 

Dismissing Appeal, Docket No. 11-1390 (issued December 21, 2011). 

4

 Docket No. 12-998 (issued November 15, 2012). OWCP accepted that appellant, a correctional officer, 

sustained a contusion to the back and lumbosacral strain on June 26, 1989. Appellant filed a claim for a schedule 

award on July 17, 2006. 

5

 Appellant previously received a schedule award for seven percent permanent impairment to the right upper 

extremity and seven percent permanent impairment to the left upper extremity under File No. xxxxxx168. He also 

had a claim accepted for right thumb fracture under File No. xxxxxx068 (sustained on February 5, 2002). 
3

On January 28, 2014 appellant requested reconsideration for a second time and submitted 

narrative statements dated September 30, 2013 and January 8, 2014 disagreeing with Dr. Rojas’ 

second opinion evaluation and indicating that he had medical conditions accepted by Medicare 

and the Veterans Administration. He also submitted an undated report from Dr. Jorge GarciaNegron, a Board-certified physiatrist, who opined that appellant’s bilateral knee conditions were 

related to his military service. 

By decision dated July 30, 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 OWCP erroneously applied or interpreted a point of law not previously considered. 

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.6

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).7 

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.8 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.9 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.10 

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

duplicates evidence or argument already in the case record11 and the submission of evidence or 

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

reopening a case.12 

 6

 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). 

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

8

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

9 Id. at § 10.607(a). 

10 Id. at § 10.608(b). 

11 See A.L., supra note 8. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

12 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
4

ANALYSIS 

In support of his January 28, 2014 reconsideration request, appellant submitted narrative 

statements dated September 30, 2013 and January 8, 2014 disagreeing with Dr. Rojas’ second 

opinion evaluation and indicating that he had medical conditions accepted by Medicare and the 

Veterans Administration. The Board finds that submission of these narrative statements did not 

require reopening appellant’s case for merit review as they did not advance a relevant legal 

argument not previously considered by OWCP and did not provide an impairment rating for 

schedule award purposes, which was the issue before OWCP. Thus, they do not constitute 

relevant and pertinent new evidence and are not sufficient to require OWCP to reopen the claim 

for consideration of the merits. 

Appellant also submitted an undated report from Dr. Garcia-Negron who opined that his 

bilateral knee conditions were related to his military service. The Board finds that submission of 

this report does not require reopening the case for merit review as it failed to address the issue of 

appellant’s permanent impairment due to his employment-related lumbar conditions, which was 

the issue before OWCP. Therefore, the report does not constitute relevant and pertinent new 

evidence and is not sufficient to require OWCP to reopen the claim for consideration of the 

merits. 

The functional capacity evaluation prepared by the physical therapist does not constitute 

competent medical evidence as physical therapists are not considered physicians under FECA.13

Additionally, the permanent impairment worksheet contained an illegible signature by the 

space designated for a physician. As the author of this document cannot be identified as a 

physician, it does not constitute competent medical evidence and is insufficient to reopen the 

case for further merit review.14

Appellant did not submit any evidence to show that OWCP erroneously applied or 

interpreted a specific point of law or advanced a relevant legal argument not previously 

considered by OWCP, nor did he submit any relevant and pertinent new evidence not previously 

considered. The Board finds that appellant did not meet any of the necessary requirements and is 

not entitled to further merit review.15 

CONCLUSION 

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

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

 13 Allen C. Hendley, 53 ECAB 551 (2002); see also 5 U.S.C. § 8101(2), which provides as follows: “(2) 

‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by State law.” 

14 See Merton J. Sills, 39 ECAB 572, 575 (1988). 

15 See L.H., 59 ECAB 253 (2007). 
5

ORDER 

IT IS HEREBY ORDERED THAT the July 30, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board