United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.R., Appellant 

and 

FEDERAL JUDICIARY SERVICE, FEDERAL 

PUBLIC DEFENDER SERVICE, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-1275 

Issued: September 22, 2015 

Appearances: Case Submitted on the Record

Paul S. Blumenthal, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 19, 2015 appellant, through counsel, filed a timely appeal from a November 21, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As OWCP 

issued its last merit decision on July 21, 2014, more than 180 days from the filing of this appeal, 

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 his claim.2

ISSUE 

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

further merit review under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted new medical evidence with his appeal. The Board, however, has no jurisdiction to review 

new evidence on appeal; see 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

This case has previously been before the Board. OWCP accepted that on February 8, 

1984 appellant, then a 35-year-old criminal investigator, sustained neck sprain, lumbosacral 

sprain, and lumbar disc displacement at L5-S1 in a motor vehicle accident. He stopped work on 

February 8, 1984 and did not return. OWCP paid appellant compensation for total disability 

until it terminated benefits pursuant to a decision of October 24, 2007, effective November 25, 

2007, which an OWCP hearing representative affirmed on March 27, 2008. Appellant appealed 

OWCP’s March 15, 2010 denial of modification to the Board, which assigned Docket No. 

10-1273. 

By decision dated February 8, 2011, the Board reversed the March 15, 2010 OWCP 

decision terminating appellant’s compensation.3

 The Board found that Dr. Robert A. Smith, a 

Board-certified orthopedic surgeon and impartial medical examiner, did not rely on the statement 

of accepted facts in reaching his conclusions and thus his opinion was insufficient to resolve the 

conflict in medical evidence. The facts and circumstances as set forth in the prior decision of the 

Board are incorporated herein by reference. 

Following the Board’s decision, OWCP returned appellant to the periodic rolls. 

On July 29, 2013 OWCP requested that appellant submit updated medical evidence 

addressing his employment-related condition.4

 When it received no response, it referred him 

back to Dr. Smith for a new second opinion examination. 

Based on Dr. Smith’s May 9, 2014 report, by decision dated July 21, 2014, OWCP 

terminated appellant’s compensation benefits finding that he had no further disability due to his 

February 8, 1984 work injury. 

On September 4, 2014 appellant, through a checkmark on an appeal request form, 

requested reconsideration of the July 21, 2014 decision. In a decision dated November 21, 2014, 

OWCP denied his reconsideration request as he did not submit evidence or raise an argument 

sufficient to warrant reopening his case for further merit review. 

On appeal appellant’s counsel contends that he has submitted new medical evidence 

showing disability and asks that the Board reverse the termination of compensation benefits. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

 3

 Docket No. 10-1273 (issued February 8, 2011). 

4

 In a decision dated December 5, 2013, OWCP found that appellant received an overpayment of compensation in 

the amount of $7,203.00 because he received duplicate compensation payments. It determined that he was at fault in 

the creation of the overpayment and that it would withhold $50.00 from his continuing compensation payments to 

repay the overpayment. 

5

 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.” 
3

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’s application for review must be received 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 which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case.9

 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.10 

ANALYSIS 

In a decision dated July 21, 2014, OWCP terminated appellant’s compensation benefits 

after finding that the weight of the medical evidence was represented by the second opinion 

physician, Dr. Smith. Dr. Smith’s report established that appellant had no further disability due 

to his accepted neck sprain, lumbosacral sprain, and lumbar disc displacement at L5-S1. On 

September 4, 2014 appellant requested reconsideration of the July 21, 2014 termination decision. 

This request is timely because it was received by OWCP within one year of the July 21, 2014 

decision. The question for determination is whether his request meets at least one of the three 

standards for obtaining merit review. 

Appellant’s September 4, 2014 reconsideration request consisted only of a mark on an 

appeal request form indicating that he wanted reconsideration. He did not offer any argument or 

submit any evidence in support of his request. Appellant suggested no reason for OWCP to 

reconsider the termination of his compensation. Such a bare request is insufficient to warrant a 

reopening of his case.11

Appellant’s reconsideration request 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 provide relevant and pertinent new evidence not previously considered by OWCP. 

Because his reconsideration request did not meet any of the standards for reopening his case, the 

Board finds that OWCP properly denied his request for further merit review under section 8128. 

 6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.607(a). 

8 Id. at § 10.608(b). 

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

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

180 (2000). 

11 See L.B., Docket No. 14-2064 (issued February 3, 2015); J.A., Docket No. 14-1447 (issued October 21, 2014). 
4

On appeal appellant’s counsel argues that the Board should reverse OWCP termination, 

which was a merit decision. As discussed, the Board only has jurisdiction over OWCP’s 

November 21, 2014 nonmerit decision, which denied appellant’s request for a merit review. The 

Board is precluded from reviewing the merits of his case. Counsel submitted new medical 

evidence with the appeal. However, as noted, the Board has no jurisdiction to review evidence 

that was not before OWCP at the time it issued its decision.12

CONCLUSION 

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

further merit review under 5 U.S.C. § 8128(a). 

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: September 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 See 20 C.F.R. § 501.2(c)(1).