United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

St. Louis, MO, Employer 

__________________________________________ 

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Docket No. 14-664 

Issued: May 14, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 3, 2014 appellant filed a timely appeal from an October 30, 2013 nonmerit 

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

reconsideration. Because more than 180 days elapsed between the last merit decision of 

January 3, 2013 to the filing of this appeal on February 3, 2014 and 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. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On June 27, 2003 appellant, then a 53-year-old postmaster, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained multiple injuries on June 14, 2003 when a pickup truck 

hit his postal vehicle. OWCP accepted the claim for closed C5-C7 fracture with unspecified 

spinal cord injury, left olecranon bursitis, sprain of left knee cruciate ligament, thoracic or 

lumbosacral neuritis or radiculitis tear of lateral meniscus of left knee, sprain of right 

interphalangeal wrist and lumbosacral spondylosis without myelopathy. 

On March 16, 2010 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated December 15, 2010, OWCP granted appellant a schedule award claim 

for five percent permanent impairment of the right thumb and seven percent permanent 

impairment of the left leg. 

On January 11, 2011 appellant requested an oral hearing before the Branch of Hearings 

and Review. 

At the April 7, 2011 hearing, appellant testified that he believed he was entitled to a 

greater award. In support of his claim, he submitted a May 5, 2011 report from Dr. James A. 

Stuckmeyer, a Board-certified orthopedic surgeon, which provided an impairment rating of the 

right upper and left upper extremities. 

By decision dated June 21, 2011, the Branch of Hearings and Review vacated the 

December 15, 2010 schedule award determination and instructed OWCP to remand the case to a 

district medical adviser (DMA) for an opinion on whether appellant sustained a permanent 

impairment as a result of his accepted employment-related injuries. 

On remand, OWCP routed the case file and Dr. Stuckmeyer’s report to an OWCP 

medical adviser. 

In an August 3 and 28, 2011 report, the DMA reported that appellant was entitled to the 

previously processed 7 percent permanent impairment of the left lower extremity, as well as an 

additional 19 percent permanent impairment of the left lower extremity, for a total of 26 percent. 

He reported that the right thumb impairment must be rescinded. 

By decision dated September 13, 2011, OWCP granted appellant an additional 19 percent 

impairment of the left lower extremity. 

On April 17, 2012 appellant requested reconsideration of the September 13, 2011 

schedule award determination. 

In support of his claim for an increased schedule award, appellant submitted a 

February 20, 2012 independent medical evaluation from Dr. Ronald Zipper, a Doctor of 

Osteopathic Medicine. Based on the sixth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment (A.M.A., Guides),2

 Dr. Zipper opined that appellant 

 2

 A.M.A., Guides (2009). 
3

sustained 57 percent whole person impairment as a result of his June 14, 2004 injury and 

provided an impairment rating: 

“Combined ratings of the right upper extremity = 38 [percent] RUE, or 23 

[percent] WPI; Combined ratings of the left upper extremity = 38 [percent] LUE, 

or 23 [percent] WPI; Combined ratings of the right lower extremity = 20 [percent] 

RLE, or 8 [percent] WPI; Combined ratings of the left lower extremity 27 

[percent] LLE, or 11 [percent] WPI; Combined values of all WPI ratings, using 

the Combined Values Chart =57 [percent]. 

In a May 5, 2012 report, the DMA reviewed Dr. Zipper’s February 20, 2012 report to 

determine permanent partial impairment of the left lower extremity. He reported that Dr. Zipper 

did not indicate which edition of the A.M.A., Guides was used nor did he identify the tables, 

chapters or grade modifiers used to determine his ratings. 

By decision dated May 31, 2012, OWCP denied modification of appellant’s schedule 

award claim finding that Dr. Zipper’s report did not contain sufficient information to warrant 

additional permanent impairment. 

On July 13, 2012 appellant requested reconsideration of the May 31, 2012 OWCP 

decision and submitted a supplemental report from Dr. Zipper in support of her claim. 

In the July 2, 2012 addendum report, Dr. Zipper reported that the DMA did not 

accurately review his previous report as he had indicated using the sixth edition of the A.M.A., 

Guides. He stated that the left knee torn posterior cruciate ligament was equivalent to Table 

16-2, class 1 with grade modifiers on Table 16-5, Table 16-6 and Table 16-7 which rendered the 

net adjustment formula to be grade E for a 13 percent permanent impairment of the left lower 

extremity. The lumbar radiculopathy with the residual effect on peripheral nerves, in particular 

the sciatic nerve, was based on Table 16-2 which rendered class 1 with a net adjustment formula 

of 13 percent left lower extremity impairment. Dr. Zipper concluded that the combined values 

equaled 27 percent permanent impairment of the left lower extremity.3

On December 10, 2012 the DMA reviewed Dr. Zipper’s supplemental report and 

determined that he failed to accurately and correctly reflect his findings, improperly referenced 

use of specific tables, lacked discussion of how grade modifiers were used and did not correctly 

process the left lower impairment ratings. He further noted that the ratings offered for the sciatic 

nerve of the left knee could not be added. The DMA went on to state that, even if the sciatic 

nerve and left knee could be added, the result would not be greater than 26 percent. 

By decision dated January 3, 2013, OWCP affirmed the May 31, 2012 decision finding 

that appellant was not entitled to an increased schedule award for the left lower extremity. It 

noted that the DMA reviewed Dr. Zipper’s supplemental report and found that his findings were 

not correctly applied to support an increase in impairment of the left leg. 

 3

 The Board notes that the combined values total 26 percent permanent impairment of the left lower extremity, 

not 27 percent as stated by Dr. Zipper. 
4

On May 14, 2013 appellant requested reconsideration of OWCP’s decision. He argued 

that the DMA was incorrect and Dr. Zipper’s reports established a 27 percent permanent 

impairment of the left lower extremity. Appellant further argued that the medical evidence 

submitted established permanent impairment to various other body parts for which he should 

receive schedule awards. 

In support of his claim, appellant resubmitted Dr. Zipper’s February 20, 2012 report and 

also submitted a new report from him dated April 26, 2013. 

In his April 26, 2013 report, Dr. Zipper stated that OWCP requested his calculations 

regarding the left lower extremity only for which he found 27 percent permanent impairment. 

He repeated the impairment ratings provided in his initial February 20, 2012 report and reiterated 

that the DMA paid little attention to his report. 

By decision dated October 30, 2013, OWCP denied appellant’s request for 

reconsideration finding that he neither raised substantive legal questions nor included new and 

relevant evidence. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under FECA section 8128(a), 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 Section 10.608(b) of OWCP regulations provide 

that 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.5

ANALYSIS 

The Board finds that OWCP properly denied reopening appellant’s case for further 

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

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the 

claim. In his May 14, 2013 application for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. He did not advance a new and relevant 

legal argument. Appellant’s argument was that Dr. Zipper’s report was sufficient to establish a 

27 percent permanent impairment of the left lower extremity. Further the DMA’s findings were 

incorrect. His simple assertion disagreeing with the DMA’s rating does not warrant merit review 

of the claim. The Board notes that the underlying issue in this case is whether appellant has 

greater than 26 percent impairment of the left lower extremity for which he received schedule 

 4 D.K., 59 ECAB 141 (2007). 

5 K.H., 59 ECAB 495 (2008). 
5

awards. That is a medical issue which must be addressed with relevant medical evidence.6 

Appellant failed to submit new and relevant medical evidence in support of his claim.7

Accompanying his May 14, 2013 reconsideration request, appellant resubmitted 

Dr. Zipper’s February 20, 2012 medical report which was previously addressed and evaluated by 

OWCP in its May 31, 2012 and January 3, 2013 merit decisions. As the report repeats evidence 

already in the case record, it is duplicative and does not constitute relevant and pertinent new 

evidence. 

Appellant also submitted a new medical report dated April 26, 2013 from Dr. Zipper. 

While Dr. Zipper’s April 26, 2013 report is new, his report is essentially identical and repetitive 

of his February 20, 2012 and July 2, 2012 reports which were previously considered by OWCP. 

It is insufficient to reopen the case for review of the merits of appellant’s claim.8

 Material which 

is duplicative of that already contained in the case record does not constitute a basis for 

reopening a case.9

 A claimant may obtain a merit review of an OWCP decision by submitting 

new and relevant evidence. In this case, appellant failed to submit any new and relevant 

evidence addressing whether he was entitled to an increased schedule award claim for the left 

lower extremity. 

The Board notes that, on appeal, appellant argued that the medical reports submitted 

established permanent impairment to other members of the body. OWCP’s decision on appeal 

before the Board addressed permanent impairment of the left lower extremity. There is no other 

final decision for permanent impairment in the record. The Board therefore lacks jurisdiction to 

address any other issue.10 

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP, or submit 

relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review.11

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). 

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

7 M.H., Docket No. 13-2051 (issued February 21, 2014). 

8

 Evidence that repeats of duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a case. Eugene F. Butler, 36 ECAB 393 (1984). 

9 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989). 

10 20 C.F.R. § 501.2(c); see E.L., 59 ECAB 405 (2008); Linda Beale, 57 ECAB 429 (2006) (the Board’s 

jurisdiction extends only to the review of final decisions by OWCP). 

11 Sherry A. Hunt, 49 ECAB 467 (1998). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 30, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 14, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board