United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.B., Appellant 

and 

DEPARMENT OF THE ARMY, 

Fort Rucker, AL, Employer 

__________________________________________ 

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Docket No. 14-1310 

Issued: September 17, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 19, 2014 appellant filed a timely application for review from a December 16, 

2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) declining 

his request for reconsideration. More than 180 days elapsed from October 9, 2013, the date of 

the most recent merit decision, 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 

pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 27, 2013 appellant, then a 49-year-old electronic multimedia information 

specialist, filed a traumatic injury claim (Form CA-1) alleging that on June 26, 2013 he tripped 

while entering a video duplication room and fell onto his left leg. His supervisor checked a box 

indicating that he had been injured in the performance of duty. 

On June 27, 2013 Dr. Christopher Ahmed, a Board-certified diagnostic radiologist, 

reviewed an x-ray of appellant’s left knee. He noted moderate degenerative changes trace 

effusion and no acute fracture. 

In a diagnostic report dated July 19, 2013, Dr. Hugh Holloway, a radiologist, obtained a 

magnetic resonance imaging (MRI) scan of appellant’s left knee.2

 He noted a tear of the 

posterior horn of the medial meniscus and a small joint effusion, degenerative changes and 

marginal osteophyte formation. 

On August 29, 2013 Dr. Marien Tavarez, a Board-certified internist, performed a 

physical examination and reviewed appellant’s x-rays and MRI scan. She noted that appellant 

was involved in a work-related accident when he stepped onto a raised portion of flooring and 

tripped, twisting and injuring his left knee. On physical examination, Dr. Tavarez noted that his 

left knee was cool with no effusion and he had discrete medial joint line tenderness and a 

negative Lachman’s test. She noted that drawer testing was also negative, and that his range of 

motion and quad tone were excellent. Dr. Tavarez noted that x-rays showed moderate arthritic 

changes in the knee, and that appellant’s MRI scan demonstrated a medial meniscal tear. 

Appellant told Dr. Tavarez that he would like to have his meniscal tear surgically repaired. 

On September 3, 2013 appellant requested authorization for surgery on his left knee. 

In a letter dated September 4, 2013, Dr. Christopher E. Robinson, a Board-certified 

orthopedic surgeon, noted that appellant could return to work following two weeks off after 

surgery to a sedentary position. 

By letter dated September 5, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish his claim. It noted that his claim initially appeared to be minor and 

payment of a limited amount of medical expenses allowed. The claim would be adjudicated 

because he requested surgery. OWCP requested that he submit a narrative medical report from 

an attending physician, including dates of examination and treatment, the history and date of 

injury given to the physician, a detailed description of findings, results of all x-ray and laboratory 

tests, a diagnosis and clinical course of treatment and an opinion based on how the claimed work 

incident caused or aggravated his left knee injury. On the same date, it denied authorization for 

left knee surgery. 

Appellant submitted a duty status report dated September 4, 2013 with an illegible 

signature. The report recommended sedentary duty for two weeks after surgery. 

 2

 Dr. Holloway’s certification as a radiologist could not be confirmed with a search of physicians certified by the 

American Board of Medical Specialties or the American Osteopathic Association. 
3

By decision dated October 9, 2013, OWCP denied appellant’s claim. It found that he had 

not established a causal relationship between his left knee injury and the incident of 

June 26, 2013. 

On December 3, 2013 appellant requested reconsideration of the October 9, 2013 

decision. With his request, he attached a narrative statement in which he reviewed the medical 

development of his condition. Appellant asserted that Dr. Tavarez clearly stated her opinion in a 

report dated November 7, 2013 that the fall on June 26, 2013 worsened and could have caused 

the tear of the posterior horn of his medial meniscus. This medical report was not submitted with 

appellant’s request for reconsideration. 

By decision dated December 16, 2013, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of the case. It found that his request neither raised 

substantive legal questions nor included new and relevant evidence. 

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 

evidence not previously considered by OWCP.3 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.4

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

record has no evidentiary value.5 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.6 

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.7 There was no medical evidence submitted with appellant’s request for 

reconsideration. 

 3

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

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

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

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

180, 187 (2000). 

7 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 
4

ANALYSIS 

OWCP issued an October 9, 2013 decision denying appellant’s claim for compensation. 

On December 3, 2013 appellant requested reconsideration of this decision. 

The Board does not have jurisdiction over the merits of the October 9, 2013 decision as 

more that 180 days passed prior to filing his appeal. 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 his claim. In his December 3, 2013 request for 

reconsideration, appellant did not contend that OWCP erroneously applied or interpreted a 

specific point of law, or advance a new and relevant legal argument not previously considered. 

Thus, he is not entitled to a review of the merits of his claim based on the first and second abovenoted requirements under section 10.606(b)(2). 

A claimant may be entitled to a merit review by submitting new and relevant evidence, 

but appellant did not submit any evidence with his request. Appellant submitted a statement 

addressing medical development of his claim. He asserted that Dr. Tavarez stated in a report 

dated November 7, 2013 that the fall on June 26, 2013 certainly worsened and could have caused 

the tear of the posterior horn of his medial meniscus. While appellant’s statement was not 

previously of record, it is not relevant to the grounds upon which OWCP denied his claim. His 

claim was denied because he did not submit a rationalized opinion from a physician addressing 

how his left knee injury resulted from the incident of June 26, 2013. This is a question to be 

resolved by probative medical opinion. Appellant’s letter listed physicians he had visited. He 

did not submit a physician’s opinion on the causal relation of his left knee condition to the 

accepted incident at work. As such, appellant’s letter was not relevant and thus insufficient to 

require a merit review of his claim. 

Appellant contends that the report from Dr. Tavarez dated November 7, 2013 contained a 

statement on causal relationship. This report was not before OWCP at the time of its 

December 16, 2013 denial of reconsideration. If a claimant fails to submit relevant evidence not 

previously of record, or advance legal contentions of facts not previously considered, OWCP has 

the discretion to refuse to reopen a case for further consideration of the merits.8

 

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. 

The Board notes that appellant submitted evidence after the issuance of the December 16, 

2013 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.9

 8 Pamela I. Holmes, 49 ECAB 581, 586 (1998). 

9

 20 C.F.R. § 501.2(c). 
5

CONCLUSION 

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

of his 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 December 16, 2013 is affirmed. 

Issued: September 17, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board