United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.K., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS CANTEEN SERVICE, Dublin, GA, 

Employer 

__________________________________________ 

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Docket No. 15-0221 

Issued: July 22, 2015 

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 7, 2014 appellant, through counsel, filed a timely application for review 

from an August 4, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Because more than 180 days elapsed from June 5, 2013, the date of the most recent 

merit decision of OWCP, to 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 appellant’s claim. 

ISSUE 

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

of her claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 20, 2012 appellant, then a 58-year-old food service worker, filed an 

occupational disease claim (Form CA-2) alleging that she developed swelling and pain in her 

neck and shoulder as a result of working in “main plate.” She first became aware of her 

condition and of its relationship to her employment on August 4, 2012. 

By letter dated September 6, 2012, OWCP advised appellant of the evidence needed to 

establish her claim. It afforded her 30 days to submit additional evidence. OWCP also inquired 

about appellant’s duties to the employing establishment. 

In a report dated March 6, 2012, Dr. Habigaile Cribe, a Board-certified internist, 

diagnosed appellant with sprain and strain of the shoulder and upper arm. Appellant also 

submitted reports from Dr. Cribe dated July 31, August 9, and 23, 2012, as well as the results of 

a magnetic resonance imaging (MRI) scan of the spine dated October 8, 2012. 

By decision dated November 1, 2012, OWCP denied appellant’s claim, finding that she 

had not established that her medical condition was caused by a traumatic event on 

August 4, 2012. 

On November 7, 2012 appellant requested an oral hearing before an OWCP hearing 

representative. 

A hearing was held on March 19, 2013. Counsel noted that appellant had filed an 

occupational disease claim and contended that appellant had submitted sufficient evidence to 

establish a causal relationship between duties of her federal employment and an aggravation of 

her condition. The hearing representative stated that Dr. Cride’s reports did not contain an 

explanation of causal relationship and that appellant had not provided a sufficient statement of 

the duties alleged to cause her conditions. He notified counsel that he would keep the record 

open for 30 days of the submission of additional evidence. 

The employing establishment submitted a report of the ergonomics of appellant’s work 

environment dated November 13, 2012, which included pushing a tray down an assembly line. 

In an attached statement, it noted that it had no evidence that she worked in “main plate,” but 

instead worked at a beverage station and a vegetable/soup station. 

By letter dated April 16, 2013, the employing establishment stated that it concurred with 

the denial of appellant’s claim because the medical evidence did not demonstrate that her 

condition was related to an injury on August 4, 2012. 

Appellant submitted admission notes dated February 7 and 18, 2013, which were not 

signed by a physician. 

In an operative report dated March 4, 2013, Dr. Peter Holliday, a Board-certified 

neurosurgeon, described performing the following procedures on appellant on that date: an 

application of Gardner-Wells tongs to the skull; an anterior cervical discectomy; a left-sided 

foraminotomy at C4-5 and C5-6; an anterior cervical interbody fusion; demineralization of the 

bone matrix at C4-5 and C5-6; and application of a titanium plate and screws. He stated a 
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postoperative diagnosis of cervical spondylosis and neural foraminal stenosis producing left 

cervical radiculopathy at C4-5 and C5-6. 

On March 4, 2013 Dr. Larry Schwartz, a Board-certified radiologist, examined the results 

of an x-ray of appellant’s cervical spine. He stated an impression of status post fusion at C4-5 

and C5-6 levels with interior plates and screws. 

In a diagnostic report dated March 5, 2013, Dr. Arthur E. McCain, a Board-certified 

diagnostic radiologist, examined the results of an x-ray of appellant’s cervical spine. He stated a 

stable appearance to enter a cervical fusion at C4-5 and C5-6. 

In a note dated April 2, 2013, Dr. Holliday noted that appellant was four weeks 

postsurgery and that her x-rays looked good. 

By decision dated June 5, 2013, the hearing representative affirmed OWCP’s decision of 

November 1, 2012. He noted that appellant had still not submitted a medical report containing a 

clear and reasoned opinion on the causal relationship between duties of her federal employment 

and her diagnosed conditions. 

In a note dated April 30, 2013, Dr. Holliday stated that he would release appellant to 

work on May 6, 2013 with permanent restrictions of no extension of the neck, no lifting above 

the shoulder, and no lifting more than 20 to 25 pounds. 

Appellant submitted a description of her tour of duty and a statement dated 

May 18, 2013. She noted that the employing establishment had told her that there was no work 

available within her restrictions and that she should apply for Social Security. Appellant also 

submitted several documents related to her use of leave. 

On June 4, 2014 appellant, through counsel, requested reconsideration. Counsel noted 

that additional evidence had been submitted, namely her statement, the report of Dr. Holliday 

dated April 30, 2013, and a description of her job duties. He argued that appellant had offered 

credible medical documentation confirming the presence of an injury resulting from her work 

duties and that the injuries had caused periods of disability. Counsel stated that at the very least, 

she had submitted enough information to require further development of the medical evidence. 

By decision dated August 4, 2014, OWCP declined appellant’s request for 

reconsideration without conducting a merit review. It noted that she had not submitted any new 

and relevant evidence to support reconsideration. OWCP also noted that counsel’s arguments 

would depend on some degree of medical evidence of a causal relationship between her 

conditions and duties of her federal employment. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

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 
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evidence not previously considered by OWCP.2

 Section 10.608(b) of OWCP’s 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.3

The Board has found that evidence that repeats or duplicates evidence already in the case 

record has no evidentiary value.4

 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.5 

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.6

ANALYSIS 

OWCP issued a June 5, 2013 decision finding that appellant had not established an 

occupational disease related to factors of her federal employment. On June 4, 2014 appellant 

requested reconsideration of this decision. 

As noted above, the Board does not have jurisdiction over the merits of the June 5, 2013 

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 her claim. 

In her June 4, 2014 request for reconsideration, appellant did not show that OWCP erroneously 

applied or interpreted a specific point of law, or advance a new and relevant legal argument not 

previously considered. Counsel’s argument contained in her reconsideration request merely 

stated that she had submitted sufficient evidence to establish a causal relationship between duties 

of her federal employment and her diagnosed condition. This argument had already been 

considered in the hearing representative’s decision of June 5, 2013. Thus, appellant is not 

entitled to a review of the merits of her claim based on the first and second above-noted 

requirements under section 10.606(b)(2). 

The underlying issue is whether appellant met her burden of proof to establish an 

occupational disease, and specifically whether she had submitted sufficient evidence to establish 

a causal relationship between duties of her federal employment and the conditions of her neck 

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

evidence, however, appellant did not submit any new and relevant evidence in this case. With 

her reconsideration request, she submitted a note from Dr. Holliday dated April 30, 2013, a 

description of her duties, and a statement. These documents, while not previously in the record 

and considered by OWCP, are irrelevant to the underlying issue of appellant’s burden of proof to 

 2

 20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007). 

3 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

4 See Daniel Deparini, 44 ECAB 657, 659 (1993). 

5 P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB 

180, 187 (2000). 

6 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 
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establish an occupational disease in the performance of duty. The note from Dr. Holliday dated 

April 30, 2013, while not previously considered by OWCP, is irrelevant to the underlying issue 

of causal relationship because it does not contain a rationalized opinion on the causal relationship 

between appellant’s condition and duties of her federal employment. It merely stated that 

Dr. Holliday would release appellant to work on May 6, 2013 with permanent restrictions of no 

extension of the neck, no lifting above the shoulder, and no lifting more than 20 to 25 pounds. 

Likewise, the description of appellant’s duties and her statement do not address the issue of 

causal relationship. 

The Board accordingly 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. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for review of the merits 

of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated August 4, 2014 is affirmed. 

Issued: July 22, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board