United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.Z., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Florence, KY, Employer 

__________________________________________ 

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Docket No. 14-1048 

Issued: January 23, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 2, 2014 appellant filed a timely appeal from a February 5, 2014 nonmerit 

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

reconsideration.1

 As more than 180 days elapsed from the last merit decision of OWCP dated 

January 7, 2013 and the filing of this appeal, the Board lacks jurisdiction to review the merits of 

appellant’s claim pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3. 

 1

 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedures. 20 

C.F.R. § 501.5(b). The Board denied the request in a December 8, 2014 order on the grounds that his arguments 

could be adequately addressed based on a review of the case record. Order Denying Request for Oral Argument, 

Docket No. 14-1048 (issued December 8, 2014). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request to reopen his case for 

further review of the merits under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On November 20, 2012 appellant, then a 26-year-old clerk, filed a traumatic injury claim 

alleging that on September 24, 2012 he injured his left wrist in the performance of duty. He did 

not stop work. 

By decision dated January 7, 2013, OWCP denied appellant’s claim after finding that the 

medical evidence was insufficient to establish a diagnosed condition causally related to the 

accepted September 24, 2012 work incident. It considered the medical evidence submitted, 

including a November 19, 2012 emergency room report, November 20 and 27, 2012 reports from 

Paul L. Lankisch, Jr., a physician’s assistant, and November 20 and 27, 2012 reports signed by 

Dr. Patrick Kunkler, Board-certified in family medicine. 

In February 2013 OWCP received the previously considered November 27, 2012 report 

from Dr. Kunkler and the November 19, 2012 emergency room report signed by a nurse 

practitioner. 

On December 9, 2013 appellant requested reconsideration. In an accompanying undated 

statement, he noted that he reported his injury to management without delay. Appellant believed 

that his wrist would improve without any medical care but it again began hurting after he loaded 

and packed many boxes of documents. He resubmitted a November 27, 2012 patient visit 

summary completed by a nurse practitioner. 

In a statement dated December 2, 2013, James J. Dellinger, a manager, advised that on 

September 24, 2012 appellant advised him that he had injured his left wrist when it got caught 

between a cart and bookshelf. He did not initially believe that the injury was serious enough to 

seek medical care. On November 19, 2012 appellant advised Mr. Dellinger that the injury was 

more significant than at first thought and filed a workers’ compensation claim. 

By decision dated February 5, 2014, OWCP denied appellant’s request to reopen his case 

for further review of the merits under section 8128(a). It found that the evidence submitted and 

arguments raised were either repetitive or immaterial and thus insufficient to warrant reopening 

the case for further merit review. 

On appeal appellant argued that the medical evidence supported that he was injured at 

work and that his manager provided evidence that appellant immediately reported the work 

injury. 
3

LEGAL PRECEDENT 

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

OWCP’s regulations 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.4 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.5

 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.6

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

already in the case record does not constitute a basis for reopening a case.7

 The Board also has 

held that the submission of evidence which does not address the particular issue involved does 

not constitute a basis for reopening a case.8

 While the reopening of a case may be predicated 

solely on a legal premise not previously considered, such reopening is not required where the 

legal contention does not have a reasonable color of validity.9

ANALYSIS 

In a decision dated January 7, 2013, OWCP denied appellant’s traumatic injury claim as 

the medical evidence was insufficient to establish a left wrist condition as a result of the accepted 

September 24, 2012 work incident. On December 8, 2013 appellant requested reconsideration. 

By decision dated February 5, 2014, OWCP denied his request for reconsideration after finding 

that he did not submit evidence or raise an argument sufficient to warrant reopening the case for 

further merit review. 

As noted above, the Board does not have jurisdiction over the January 7, 2013 OWCP 

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

of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the 

claim. The Board finds that in the December 8, 2013 request 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 not previously considered. Appellant asserted that he 

 3

 5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application.” 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608(b). 

7 F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001). 

8 P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000). 

9 Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000). 
4

informed his supervisor promptly of his injury, which he believed would soon improve. In a 

December 2, 2013 statement, Mr. Dellinger confirmed that appellant told him that he injured his 

wrist on September 24, 2012 when he caught it between a cart and bookshelf. On November 19, 

2012 he advised Mr. Dellinger that his injury was not improving, sought medical care and filed 

his traumatic injury claim. Mr. Dellinger’s statement, however, is not relevant to the underlying 

issue in this case, which is whether the medical evidence is sufficient to show that appellant 

sustained a left wrist condition causally related to the accepted November 19, 2012 work 

incident. As this is a medical issue, it must be resolved by relevant medical evidence.10 

Evidence or argument that does not address the particular issue involved does not warrant 

reopening a case for merit review.11

A claimant may be entitled to a merit review by submitting pertinent new and relevant 

evidence. However, appellant did not submit any pertinent new and relevant medical evidence in 

this case. He resubmitted the November 19, 2012 emergency room report, the November 27, 

2012 patient visit summary and the November 27, 2012 report from Dr. Kunkler. OWCP, 

however, had previously considered this evidence in its January 7, 2013 decision. Evidence 

which repeats or duplicates evidence already in the case record has no evidentiary value and does 

not constitute a basis for reopening a case.12

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). 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 

constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request to reopen his case for 

further review of the merits under section 8128. 

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

11 J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002). 

12 See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005). 
5

ORDER 

IT IS HEREBY ORDERED THAT the February 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 23, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board