United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Albany, NY, Employer 

__________________________________________ 

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Docket No. 15-0998 

Issued: August 17, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 30, 2015 appellant filed a timely appeal of an October 2, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Because over 180 days 

has elapsed between the most recent merit decision, dated July 17, 2013, and the filing of this 

appeal on April 30, 2015, pursuant to 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 reconsideration on 

the merits pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On January 19, 2011 appellant, then a 29-year-old city carrier, filed a traumatic injury 

claim alleging that on that date he slipped on a step and caught himself with his right arm on the 

railing. He stated that he developed pain in his right bicep and shoulder. On January 28, 2011 
2

appellant underwent a magnetic resonance imaging (MRI) scan of his right upper extremity 

which demonstrated a tear of the intra-articular portion of the long head of the biceps tendon. 

OWCP denied appellant’s claim on March 14, 2011 finding the evidence of record was 

insufficient to establish the medical condition is causally related to the accepted work event. 

Appellant requested reconsideration on April 12, 2011 and on July 21, 2011 OWCP accepted his 

claim for right biceps tendon rupture. 

Dr. Kyle R. Flik, a Board-certified orthopedic surgeon, performed a right shoulder 

arthroscopy with debridement of the superior labrum and open exploration of the biceps tendon 

with lysis of adhesions and scar tissue. He found a tear of the superior labrum and an absent 

long head of the biceps tendon as well as scar tissue and partial tearing of the pectoralis major 

tendon. Dr. Flik stated that the biceps tendon was autotenodesed proximally and that appellant 

had abundant scar tissue. Appellant returned to modified work on December 9, 2011. 

Dr. Flik examined appellant on March 14, 2012 for a permanent impairment rating. He 

stated that appellant had less discomfort and pain in his right elbow. Dr. Flik found that 

appellant had full range of motion of his elbow and glenohumeral joint. He found soreness to 

deep palpation in the biceps with full pronation and supination. Dr. Flik reported mild weakness 

compared to the left side. He opined that under the state worker’s compensation guidelines 

appellant was entitled to 15 percent impairment for his long-headed biceps rupture requiring 

surgery and debridement. Dr. Flik further found that appellant had 5 percent impairment for 

muscle weakness resulting in an impairment rating of 20 percent. 

Appellant requested a schedule award on August 6, 2012. OWCP responded on 

February 15, 2013 and requested additional medical evidence including a report which found that 

appellant had reached maximum medical improvement and a final rating of the permanent 

impairment in accordance with and including references to the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

1

In a decision dated July 17, 2013, OWCP denied appellant’s request for a schedule award 

finding that he failed to submit medical evidence expressing his permanent impairment in 

accordance with the A.M.A., Guides. 

Appellant requested reconsideration through a letter dated July 1, 2014 and a form dated 

July 2, 2014 and received by OWCP on July 7, 2014. He stated that he believed that Dr. Flik had 

submitted the necessary medical evidence and referenced the March 14, 2012 report. Appellant 

stated that Dr. Flik had submitted new evidence in accordance with the A.M.A., Guides. On 

June 24, 2014 Dr. Flik stated that he had amended his March 14, 2012 note. He removed 

references to the state workers’ compensation system and stated that he was evaluating appellant 

for permanent impairment to his right upper extremity. Dr. Flik found that appellant 

demonstrated full range of motion of the elbow and glenohumeral area. He found soreness to 

 1

 20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any 

physician evaluating permanent impairment to use the second printing of the sixth edition. Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5.a 

(February 2013). 
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deep palpation in the biceps with full pronation and supination. Dr. Flik also reported mild 

weakness. He stated, “I would recommend 15 percent scheduled loss of use for his long-headed 

biceps rupture requiring surgery and debridement. I would add 5 percent for his muscle 

weakness for a total of 20 percent scheduled loss of use.” 

By decision dated October 2, 2014, OWCP declined to reopen appellant’s claim for 

consideration of the merits. It found that Dr. Flik’s June 24, 2014 report was repetitious and 

cumulative of his March 14, 2012 report such that a review of the merits was not required. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.2 

Section 10.606(b)(3) of the Code of Federal Regulations provide that a claimant may obtain 

review of the merits of the claim by submitting in writing an application for reconsideration 

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or constitutes relevant and pertinent new evidence not previously considered by 

OWCP.3

 Section 10.608(b) of OWCP regulations provide that when a request for 

reconsideration is timely, but does meet at least one of these three requirements, OWCP will 

deny the application for review without reopening the case for a review on the merits.4

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. The Board has also 

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

not constitute a basis for reopening a case.5

ANALYSIS 

The Board finds that OWCP correctly denied reopening of appellant’s claim for merit 

review on October 2, 2014. 

Appellant timely requested reconsideration of the July 17, 2013 decision denying his 

claim for a schedule award on July 7, 2014. Appellant neither demonstrated that OWCP 

erroneously applied or interpreted a point or law, nor advanced a relevant legal argument not 

previously considered by OWCP. 

In support of this request, appellant submitted Dr. Flik’s March 14, 2012 note which had 

been amended on June 24, 2014. The Board finds that Dr. Flik’s June 24, 2014 note does not 

contain new evidence and is therefore insufficient to require OWCP to reopen appellant’s claim 

 2

 5 U.S.C. §§ 8101-8193, 8128(a). 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608. 

5 M.E. 58 ECAB 694 (2007). 
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for consideration of the merits. Dr. Flik amended the March 14, 2012 note to remove the 

references to the state workers’ compensation guidelines. He did not provide any further 

information on June 24, 2014 which was not included in the March 14, 2012 report. As 

Dr. Flik’s June 24, 2014 report was substantially duplicative of his March 14, 2012 report, the 

Board finds that OWCP properly declined to reopen appellant’s claim for consideration of the 

merits. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration and supporting evidence did 

not comply with the requirements of section 10.606 of OWCP regulations and that OWCP 

properly declined to reopen appellant’s claim for consideration of the merits of his schedule 

award claim. 

ORDER 

IT IS HEREBY ORDERED THAT the October 2, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board