United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.O., Appellant 

and 

PEACE CORPS, PEACE CORPS-ENROLLEES, 

Washington, DC, Employer 

___________________________________________

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Docket No. 15-1412 

Issued: December 8, 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 H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 9, 2015 appellant filed a timely appeal from a December 11, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 

days elapsed from October 29, 2013, the most recent OWCP merit decision, to the filing of 

the current appeal, pursuant to Federal Employees’ Compensation Act2

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of 

appellant’s claim. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). The 180th day following the December 11, 2014 decision was June 9, 2015. Since using June 19, 

2015, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the 

date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is June 9, 

2015, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

FACTUAL HISTORY 

On June 28, 2010 appellant, then a 30-year-old environmental education Peace Corps 

volunteer in Guatemala, filed an occupational disease claim (Form CA-2) alleging that she 

sustained multiple traumatic events to her lower back in the performance of duty. She indicated 

that she sustained herniation of three discs at L3-4, L4-5, and L5-S1. Appellant indicated that 

she first realized the conditions were caused or aggravated by her employment on 

April 30, 2008. She stopped work on March 27, 2010. 

Documents submitted with the claim indicated that on August 13, 2008 appellant 

underwent a hemilaminectomy, foraminotomy, and discectomy at L4-5, and L5-S1, performed 

by Dr. William R. Taylor, a Board-certified neurosurgeon. Dr. Taylor continued to treat 

appellant and note her status. 

On July 23, 2010 OWCP accepted the claim for aggravation of displacement of lumbar 

intervertebral disc without myelopathy, L4-5, L5-S1, and L3-4.3

 

In July 2013 appellant filed claims for disability beginning on March 28, 2010 and 

continuing. 

A December 7, 2011 lumbar myelogram procedure and computerized tomography (CT) 

scan report, read by Dr. Ramin Sean Pakbaz, a Board-certified diagnostic radiologist, revealed 

L5-S1 flowing osteophyte from L5-S1 with calcifications about the nerve root of S1 and disc 

herniation at L4-5, mostly on the right. 

In an undated attending physician’s report (Form CA-20), Dr. Taylor indicated that 

appellant was only partially disabled beginning August 12, 2008.4

 He noted that she continued 

to have right-sided pain from the work injury to include a herniated disc. Dr. Taylor checked the 

box “yes” in response to whether he believed the condition was caused or aggravated by an 

employment activity. 

In a July 18, 2013 telephone call memorandum, appellant contacted OWCP to request 

that it expand her claim from a temporary aggravation to a permanent aggravation. She indicated 

that she needed surgery. 

In a letter dated July 18, 2013, OWCP informed appellant of the type of evidence needed 

to support her claim for wage-loss compensation and requested that she submit such evidence 

 3

 The record reflects that appellant had a preexisting nonindustrial back injury. In a September 11, 2013 decision, 

OWCP denied appellant’s claim for a schedule award. 

4

 Dr. Taylor also filled in partial disability commencing July 2008 on a separate undated attending physician’s 

report. 
3

within 30 days. It also specifically noted that appellant went to Costa Rica on August 3, 2010 for 

a job in private industry and requested information about that job and her work history in that 

job. 

OWCP continued to develop the claim and, by letter dated August 21, 2013, referred 

appellant for a second opinion examination to obtain an independent assessment of her workrelated condition, along with a statement of accepted facts, a set of questions, and the medical 

record to Dr. William P. Curran, a Board-certified orthopedic surgeon. 

In a September 11, 2013 report, Dr. Curran noted appellant’s history of injury and 

treatment and examined her. He provided findings and concluded that the need for a two-level 

right-sided hemilaminotomy and discectomy was causally related to the April 30, 2008 work 

incident. Dr. Curran indicated that, prior to that date, appellant had a two-level herniated disc in 

April 2001, but she had a seven-year hiatus of no treatment. He opined that the April 30, 2008 

accident caused a permanent aggravation of multilevel lumbar disc, joint central and 

neuroforaminal stenosis. Dr. Curran determined that appellant continued with residuals of her 

injury which included pain and atrophy with decreased sensation in the right lower extremity. 

He advised that she was temporarily totally disabled from work for the period July 31, 2008 to 

February 1, 2009, at which time the period of disability had ceased. 

In a letter dated September 26, 2013, OWCP requested that Dr. Taylor review 

Dr. Curran’s report and provide his opinion. No response was received. 

By decision dated October 29, 2013, OWCP denied appellant’s claim for compensation 

beginning March 28, 2010. 

Appellant continued to submit evidence. She resubmitted evidence that included 

Dr. Pakbaz’s December 7, 2011 report as well as Dr. Taylor’s attending physician’s report. 

Appellant also provided a June 28, 2013 treatment note from Dr. Taylor in which he 

recommended surgery. Attached to this was a July 12, 2013 progress note from Dr. Justin 

Brown, a Board-certified neurosurgeon, who noted that appellant presented requesting surgery 

more than a year after her prior visit. Dr. Brown noted that appellant was deciding whom she 

would like to perform the surgery. Appellant submitted other treatment notes from Dr. Brown. 

In a November 27, 2013 report, Dr. Taylor indicated that appellant was awaiting approval 

for surgery. He noted that, despite being a clear candidate for surgery, her claim was denied. 

On September 6, 2014 appellant requested reconsideration of the October 29, 2013 

decision. She requested that her claim be expanded to include a permanent aggravation of her 

lumbar spine condition, as opposed to a temporary aggravation. Appellant also requested that 

additional diagnoses be added to her claim. She indicated that she was awaiting a second 

surgery. Appellant also reviewed Dr. Curran’s report and argued that her physicians did not 

agree with all of his comments. 
4

In a decision dated December 11, 2014, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant review of its prior 

decision.5

LEGAL PRECEDENT 

Under section 8128(a) of FECA,6 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that: 

“(i) Shows that [OWCP] erroneously applied or interpreted a specific point of 

law; or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by [OWCP].”7

 Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.8

ANALYSIS 

Appellant disagreed with the denial of her claim for disability for the period beginning 

March 28, 2010 and timely requested reconsideration on September 6, 2014. 

On reconsideration appellant requested that her claim be expanded to include a 

permanent aggravation of her lumbar spine condition, as opposed to a temporary aggravation. 

She indicated that she was awaiting a second surgery. Appellant also reviewed Dr. Curran’s 

report and argued that her physicians did not agree with all of his comments. OWCP denied 

appellant’s application on December 11, 2014, finding that no new evidence was offered 

warranting further merit review. The underlying issue on reconsideration is medical in nature, 

whether appellant had disability causally related to her accepted condition beginning 

March 28, 2010. Appellant’s arguments are irrelevant with regard to whether she was disabled 

beginning March 28, 2010 as medical evidence is needed to address this question. Although she 

argued that her claim should be expanded, OWCP has not issued a decision on this matter. The 

 5

 OWCP noted that its October 29, 2013 decision only pertained to appellant’s claim for wage-loss compensation 

beginning March 28, 2010. It declined to address whether additional conditions should be accepted. 

6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.608(b). 
5

Board finds that appellant did not offer any arguments which would show a legal error by OWCP 

nor did she advance a relevant legal argument not previously considered by OWCP. 

Appellant also submitted medical evidence not previously of record. However, the Board 

finds that this evidence is irrelevant to the underlying issue; whether she had any disability 

beginning March 28, 2010 causally related to her accepted conditions. In a November 27, 2013 

report, Dr. Taylor indicated that appellant was awaiting approval for surgery after being denied 

authorization. This report does not offer any opinion regarding the period of disability at issue. 

Likewise other treatment notes from Drs. Taylor and Brown did not specifically support that 

appellant had any disability beginning March 28, 2010 causally related to her accepted 

conditions. The Board has held that the submission of evidence which does not address the 

particular issue involved does not constitute a basis for reopening a case.9

 Thus, this evidence is 

irrelevant. OWCP also received copies of previously submitted evidence. The Board has held 

that submitting evidence that is repetitious or duplicative of evidence already in the case record 

does not constitute a basis for reopening the claim.10

The Board finds, therefore, that 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 pertinent new and relevant evidence not previously considered. 

As appellant did not meet any of the necessary regulatory requirements, she is not entitled to 

further merit review. 

On appeal appellant repeated her arguments from her reconsideration request. She also 

provided a copy of previously submitted medical evidence. As noted, the Board does not have 

jurisdiction over the merits of the claim. As explained, appellant has not met any of the 

necessary regulatory requirements to be entitled to further merit review. 

CONCLUSION 

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

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

 

9 Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000). 

10 Brent A. Barnes, 56 ECAB 336 (2005). 
6

ORDER 

IT IS HEREBY ORDERED THAT the December 11, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 8, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board