United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Holtsville, NY, Employer 

___________________________________________

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Docket No. 15-21 

Issued: March 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 6, 2014 appellant filed a timely appeal from an April 9, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 As the last merit decision 

was issued on February 14, 2014 more than 180 days from the filing of this appeal, the Board 

does not have jurisdiction over the merits of the claim. Pursuant to the Federal Employees’ 

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the nonmerit decision. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred eighty days from April 9, 2014, the date of OWCP’s last decision, was 

October 6, 2014. Since using October 8, 2014, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is October 6, 2014, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On August 6, 2013 appellant, then a 66-year-old clerk and assistant filed a traumatic 

injury claim alleging that on that date, she was walking and tripped over the saddle of the 

threshold that was in the doorway. She indicated that she fell face first, skinned her knee, and 

her mouth hit the floor. Appellant indicated that her tooth was loosened and she hurt her back in 

the performance of duty. She stopped work on that date. The employing establishment checked 

the box “no” in response to whether appellant was in the performance of duty. It noted that she 

was entering the building for work. 

By letter dated August 29, 2013, OWCP informed appellant of the type of evidence 

needed to support her claim and requested that she submit such evidence within 30 days. 

OWCP received a statement from appellant and a diagram describing the area and 

location of her fall. Appellant indicated that the fall occurred at 6:55 a.m. 

 By decision dated October 2, 2013, OWCP denied appellant’s claim on the grounds that 

she failed to establish the medical component of fact of injury. It noted that they did not receive 

any medical evidence containing a diagnosis in connection with the work event. 

On November 12, 2013 appellant requested reconsideration and submitted additional 

medical evidence. This included a November 5, 2013 duty status report from Dr. Brian Morelli, 

a Board-certified orthopedic surgeon, who diagnosed a spinal contusion and indicated that 

appellant could not work. In an attending physician’s report of the same date, Dr. Morelli 

diagnosed spinal contusion and exacerbation of degenerative disease secondary to a fall. He 

checked a box yes to indicate that appellant’s trip and fall at work caused her condition. 

In a decision dated February 14, 2014, OWCP denied modification of the October 2, 

2013 decision. 

On March 24, 2014 OWCP received appellant’s request for reconsideration. Appellant 

indicated that she was under the impression that if she fell at work during working hours and had 

a witness, her claim would be covered as she was in the performance of her duties. She noted 

that a security guard picked her up bleeding and a nurse helped her to a wheelchair. 

Evidence submitted included copies of photographs of herself and a summary of answers 

from her traumatic injury claim form.3

 Appellant resubmitted copies of Dr. Morelli’s 

November 5, 2013 duty status and attending physician’s reports. Also resubmitted was a 

January 13, 2014 letter from the employing establishment advising appellant that she had 

received an overpayment of salary due to a time and attendance adjustment. 

 3

 The copies of photographs are only partially viewable due to poor image quality. 
3

In a decision dated April 9, 2014, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant review of its prior decision. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4

 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”5

 Section 10.608(b) of Title 20 of the Code of Federal Regulations provide that any 

application for review of the merits of the claim which does not meet at least one of the 

requirements listed in section 10.606(b) will be denied by OWCP without review of the merits of 

the claim.6

ANALYSIS 

Appellant disagreed with the denial of her traumatic injury claim and timely requested 

reconsideration. The underlying issue on reconsideration is medical in nature, whether the 

August 6, 2013 work incident caused or contributed to an injury. 

On reconsideration, appellant argued that she was under the impression that if she fell at 

work during working hours and had a witness, her claim would be covered as she was in the 

performance of her duties. She noted that a security guard picked her up bleeding and a nurse 

helped her to a wheelchair. The Board finds that the falling incident on August 6, 2013 is not in 

dispute. Rather, OWCP denied the claim because the medical evidence submitted did not 

contain medical opinion evidence explaining how her back, tooth, and knee conditions were 

caused or aggravated by specific factors of her employment. This argument by appellant does 

not show that OWCP made a legal error nor does it advance a relevant legal argument not 

previously considered by OWCP. 

Furthermore, appellant did not submit new medical evidence addressing whether her 

employment contributed to her claimed condition. Although she resubmitted November 5, 2013 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.606(b). 

6 Id. at § 10.608(b). 
4

medical reports from Dr. Morelli, the Board has held that evidence that repeats or duplicates 

evidence already in the case record has no evidentiary value and does not constitute a basis for 

reopening a case.7 Likewise, resubmission of the January 13, 2014 letter from the employing 

establishment with regard to an overpayment is not relevant. The summary of answers from her 

traumatic injury claim form is essentially repetitive of information on her August 6, 2013 claim 

form and does not serve as a basis for reopening the claim. The copies of photographs, while 

new, are not relevant to the underlying medical issue. The Board has held that the submission of 

evidence which does not address the particular issue involved does not constitute a basis for 

reopening a case.8

Appellant therefore 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 

constitute new and relevant evidence not previously considered. As she did not meet any of the 

necessary regulatory requirements, she is not entitled to further merit review. 

On appeal, appellant submitted new medical evidence. However, the Board has no 

jurisdiction to review this evidence for the first time on appeal.9

 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim under 5 U.S.C. § 8128(a). 

 7 James W. Scott, 55 ECAB 606 (2004). 

8 Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000). 

9

 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). 
5

ORDER 

IT IS HEREBY ORDERED THAT the April 9, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 17, 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