United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Morrisville, NC, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-65 

Issued: March 4, 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 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On October 14, 2014 appellant filed a timely appeal from an April 21, 2014 nonmerit 

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

reconsideration. As more than 180 days has elapsed from the date of the last merit decision of 

March 15, 2013 to the filing date of the current appeal on October 14, 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 over the merits 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 April 21, 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. OWCP accepted that appellant, then a 41-

year-old transportation security officer, developed bilateral carpal tunnel syndrome due to factors 

of her federal employment. It authorized right carpal tunnel release surgery, which appellant 

underwent on April 23, 2012 and paid appropriate compensation benefits. In a decision dated 

February 1, 2013, the Board affirmed OWCP’s decisions dated September 18 and June 8, 2012 

denying appellant’s claims for disability compensation for the periods March 22, June 17 and 29, 

July 1 and 4, 2012.3

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

reference. 

Appellant filed claims for wage-loss compensation for intermittent periods commencing 

November 19, 2011. She also filed a claim for a schedule award on December 21, 2012 and 

submitted a report dated November 28, 2012 from Dr. Harrison Tuttle, a Board-certified 

orthopedic hand surgeon. 

By decision dated March 15, 2013, OWCP issued a schedule award for a two percent 

permanent impairment of the right upper extremity and a zero percent permanent impairment of 

the left upper extremity. The award ran for a total of 6.24 weeks for the period December 2, 

2012 to January 14, 2013. OWCP based the schedule award on a weekly pay rate of $738.51, 

effective November 19, 2011, the date appellant’s disability began. 

On March 7, 2014 appellant requested reconsideration and argued that she sustained 

more than a two percent permanent impairment of the right upper extremity and a zero percent 

permanent impairment of the left upper extremity, for which she received a schedule award. She 

submitted pay rate information dated January 16 to 29, October 9 to 22, and November 6 to 19, 

2011, indicating that she had a weekly pay rate of $618.49 on November 19, 2011. 

By decision dated April 21, 2014, OWCP denied appellant’s request for reconsideration 

of the merits finding that she 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 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. 12-1832 (issued February 1, 2013). 

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 her March 7, 2014 reconsideration request, appellant submitted pay rate 

information dated January 16 to 29, October 9 to 22, and November 6 to 19, 2011, indicating that 

she had a weekly pay rate of $618.49 on November 19, 2011. The Board finds that submission 

of these documents did not require reopening her case for merit review as they did not advance a 

relevant legal argument not previously considered by OWCP or demonstrate that OWCP 

erroneously applied or interpreted a point of law. In its March 15, 2013 decision, OWCP issued 

a schedule award based on a weekly pay rate of $738.51, which is greater than the weekly pay 

rate of $618.49 demonstrated in the evidence submitted. Thus, these documents do not 

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

the claim for consideration of the merits. Additionally, with regard to whether appellant is 

entitled to a schedule award for a greater percentage of impairment than that awarded the Board 

notes that this is a question that is medical in nature. As the pay rate information is not medical 

evidence, this submission does not constitute pertinent new and relevant evidence. 

Appellant also resubmitted a November 28, 2012 report from Dr. Tuttle. The Board finds 

that the submission of this report did not require reopening appellant’s case for merit review 

because he had submitted the same report by Dr. Tuttle, which was previously reviewed by 

OWCP in its March 15, 2013 schedule award decision. As the report repeats evidence already in 

 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 A.L., supra note 6. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

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

the case record, it is duplicative and does not constitute relevant and pertinent new evidence. 

Thus, appellant has not established a basis for reopening her case.11 

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 she submit any relevant and pertinent new evidence not 

previously considered. The Board finds that she did not meet any of the necessary requirements 

and is not entitled to further merit review.12 

On appeal, appellant argues the merits of her claim. The Board noted above that it lacks 

jurisdiction over OWCP’s March 15, 2013 merit decision which denied her request for 

reconsideration and therefore is precluded from conducting a merit review. 

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). 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the April 21, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board