United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.G., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

PARADISE FOSSIL PLANT, Drakesboro, KY, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-641 

Issued: June 4, 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 29, 2015 appellant filed a timely appeal from an October 28, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from the last merit decision of March 11, 2014 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 over the merits of this claim and only has jurisdiction over the nonmerit 

decision. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated July 22, 2014, the 

Board found that appellant had not established that he has more than 26 percent impairment of 

his lung and that OWCP properly refused to reopen his claim for further review under 5 U.S.C. 

§ 8128(a).2

 The law and facts of the previous Board decision is incorporated herein by reference. 

On January 14, 2014 appellant filed a Form CA-7 claiming compensation for the period 

April 11, 2011 through December 31, 2013 noting that his check stopped. In a January 10, 2014 

statement, he indicated that he was claiming wage loss as his check stopped and his black lung 

condition had worsened. Appellant alleged that he was no longer able to work. 

In a January 22, 2014 developmental letter, OWCP advised appellant that there was no 

evidence that he became disabled due to his work-related lung condition at the time he chose to 

retire in 1989. It noted that medical evidence dated October 19, 2012 indicated that his 

pneumoconiosis was only accountable for a small portion of his symptoms, with a major part of 

his disability being due to chronic obstructive pulmonary disease (COPD) and chronic bronchitis 

due to a history of smoking and the aging process. OWCP requested that appellant submit 

medical evidence that he became disabled on April 11, 2011 onward due to the accepted 

pneumoconiosis condition. Appellant was afforded 30 days to submit the requested information. 

In response OWCP received a duplicate copy of appellant’s January 10, 2014 statement 

indicating his black lung condition had worsened. 

In a January 27, 2014 letter, Dr. Bernard J. Buchanan, a Board-certified internist, 

indicated that appellant’s black lung contributed to more than 60 percent of his disability. He 

indicated that his past correspondence in September 2009 detailed the confirmation of the 

diagnosis. Dr. Buchanan also noted appellant’s medical regime and symptoms. A nebulizer 

letter of medical necessity was provided for the diagnosis of bronchitis with COPD emphysema 

along with a request for medical authorization of medical equipment and medicine. 

By decision dated March 11, 2014, OWCP denied appellant’s claim for compensation for 

the period April 11, 2011 through December 31, 2013, finding that the medical evidence 

submitted was insufficient to explain why she was unable to work during the period claimed. 

On October 21, 2014 OWCP received appellant’s request for reconsideration. Appellant 

stated that he was sending in evidence which documented he was under care of a black lung 

clinic. Evidence received included a duplicate copy of Dr. Buchanan’s January 27, 2014 report. 

Also received was a March 28, 2014 x-ray, interpreted by Dr. Wayne Myers, a Board-certified 

radiologist, who concluded that the x-ray showed moderate-to-severe pulmonary emphysema, 

chronic interstitial lung disease, and a questionable nodule of the left upper lobe. In addition, 

 2

 Docket No. 13-657 (issued July 22, 2014). On June 21, 200 appellant, a retired 55-year-old machinist, filed an 

occupational disease claim alleging that factors of his employment caused or aggravated his pulmonary 

pneumoconiosis and asbestosis conditions. OWCP accepted pneumoconiosis as a work-related injury and paid 

benefits. Appellant stopped working in 1989. He has two other accepted work injuries: (1) a lumbar strain from 

December 13, 1988, resolved; (2) and a hearing loss claim for which he received 54 percent bilateral noise-induced 

hearing loss. 
3

appellant submitted pulmonary function reports dated January 27 and March 28, 2014, prepared 

by a technician. 

By decision dated October 28, 2014, OWCP denied reconsideration without reviewing 

the merits of the case. 

LEGAL PRECEDENT 

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

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) establish 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

 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.5

 

ANALYSIS 

The underlying issue on reconsideration is whether appellant has submitted sufficient 

evidence relevant to the issue of whether he is entitled to wage-loss compensation for the 

claimed period April 11, 2011 through December 31, 2013. His request for reconsideration 

neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point 

of law. Consequently, appellant was not entitled to a review of the merits based on the first and 

second above-noted requirements under 20 C.F.R. § 10.606(b)(2). 

The Board also finds that he did not provide any relevant or pertinent new evidence 

warranting the reopening of the case on the merits. Dr. Buchanan’s January 27, 2014 medical 

report was previously reviewed in OWCP’s March 11, 2014 decision. A duplicative medical 

report does not require that OWCP reopen appellant’s claim for further merit review.6 The form 

report regarding his hearing loss pertained to a different claim. 

While the March 28, 2014 chest x-ray, as well as the January 27 and March 28, 2014 

pulmonary function reports were new to this claim, they were not relevant to the issue of 

disability from work for the period April 11, 2011 through December 31, 2013. Thus, this 

information is insufficient to reopen appellant’s claim for further merit review. 

The Board finds that appellant did not establish that OWCP erroneously interpreted a 

specific point of law, advance a relevant legal argument not previously considered, or submit 

relevant and pertinent new evidence not previously considered by OWCP. Appellant did not 

 3

 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(2). 

5 Id. at § 10.608(b). 

6 M.W., Docket No. 15-499 (issued April 10, 2015). 
4

meet any of the regulatory requirements and OWCP properly declined to reopen his claim for 

further merit review.7 

On appeal appellant contends that his black lung condition has worsened and that he 

should be compensated. He bears the burden of proof to establish entitlement to wage-loss 

compensation. 

Appellant may submit additional evidence to OWCP with a formal, written request for 

reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.8 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

The Board notes that appellant has received schedule awards for hearing loss and 

impairment of both lungs.9

 To the extent appellant is claiming an increase in his permanent 

impairments due to his accepted pneumoconiosis condition and work-related hearing loss, he 

may request an increased schedule award based on evidence of a new exposure or medical 

evidence showing progression of an employment-related condition resulting in permanent 

impairment or increased impairment. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 

5 U.S.C. § 8128(a). 

 7 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010) (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). 

8 See A.L., Docket No. 08-1730 (issued March 16, 2009). 

9 See supra note 2. 
5

ORDER 

IT IS HEREBY ORDERED THAT the October 28, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board