United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.D., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

SAN JUAN NATIONAL HISTORIC SITE, 

San Juan, PR, Employer 

__________________________________________ 

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Docket No. 15-0178 

Issued: June 19, 2015 

Appearances: Case Submitted on the Record

William Nadal, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 3, 2014 appellant, through counsel, filed a timely appeal from a 

September 23, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days has elapsed from February 21, 2014, the date of the most 

recent OWCP merit decision, 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 reconsideration 

without a merit review, under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 5, 2012 appellant, then a 30-year-old mason helper, filed a traumatic 

injury claim alleging that he sustained a left arm injury in the performance of duty. He alleged 

that a tree branch hit his arm while he was picking up trash and waste material. Appellant 

stopped work on September 5, 2012. His claim was initially accepted for contusion of the left 

shoulder and later expanded to include complex regional pain syndrome of the left arm. 

Appellant received wage-loss compensation from October 21, 2012 to April 20, 2013 and from 

May 5 to 18, 2013. On May 22, 2013 he was terminated by the employing establishment. 

OWCP referred appellant to Dr. Fernando Rojas, a Board-certified orthopedic surgeon.2

 

In a June 21, 2013 report, Dr. Rojas noted the history of injury and diagnosed shoulder 

contusion. He also advised that appellant might either have complex regional pain syndrome, or 

brachial plexus or a nerve root avulsion problem caused by his work injury. Dr. Rojas 

recommended appellant’s referral to a neurosurgeon. 

On August 14, 2013 OWCP referred appellant to Dr. Basil M. Yates, a Board-certified 

neurosurgeon, for a second opinion examination.3

 The examination was scheduled for 

September 3, 2013 in Hialeah, Florida. Appellant was advised that if he did not attend his 

appointment and could not establish good cause for his failure to appear then OWCP could find 

that he obstructed the examination and suspend his compensation benefits until the refusal to 

submit or obstruction ended. He was further advised that if he could not attend his appointment 

he should call to reschedule. Appellant was provided with a Form OWCP-957 allowing him to 

claim reimbursement for any travel-related expenses. OWCP requested that appellant contact 

OWCP if he did not understand any part of the letter. 

An August 30, 2013 telephone call memorandum indicated that appellant’s counsel called 

to advise that appellant could not attend the scheduled examination as he had no way to travel to 

Florida from Puerto Rico. OWCP indicated that it returned the call on September 3, 2013 and 

asked that appellant call OWCP. 

On September 4, 2013 OWCP’s medical scheduler advised that appellant failed to appear 

at his scheduled second opinion examination. 

In a September 5, 2013 letter, appellant’s counsel inquired about the status of appellant’s 

payments for wage-loss compensation. He also stated that it was impossible for appellant to 

attend a scheduled medical appointment in Hialeah, Florida. Counsel stated that it was 

impossible for appellant to attend any medical examination outside of Puerto Rico. 

By letter dated September 19, 2013, OWCP informed appellant that it proposed a 

suspension of his compensation benefits. Appellant was advised that he had 14 days to provide 

an explanation as to why he failed to appear at his appointment. He was further advised that, if 

 2

 Dr. Rojas’ office is located in Caguas, Puerto Rico. 

3

 Dr. Yates’ office is in Hialeah, Florida. OWCP records indicate that OWCP initially tried to locate a 

neurosurgeon in Puerto Rico before searching in the Miami, Florida area. 
3

he did not show good cause, then his entitlement to compensation would be suspended until after 

he attends and fully cooperates with the examination. 

By decision dated October 18, 2013, OWCP finalized the suspension of appellant’s 

compensation benefits. It noted that appellant’s counsel did not offer any specific reason to 

support appellant’s inability to leave Puerto Rico for a medical appointment. 

On November 27, 2013 appellant requested reconsideration. Counsel argued that 

appellant did not have the financial means to fly from Puerto Rico to Florida to attend the 

examination. He advised that he called OWCP and sent a September 19, 2013 letter explaining 

the reasons why appellant was unable to attend a medical examination outside of Puerto Rico. 

Counsel advised that appellant did not want to obstruct or affect the process, but reiterated that 

he was poor, disabled, and unemployed. 

By decision dated February 21, 2014, OWCP affirmed its suspension of appellant’s 

compensation benefits. It found that appellant did not notify his claims examiner or attempt to 

reschedule his appointment. OWCP also noted that appellant was informed that he could be 

reimbursed for his travel expenses or, if he had no financial means to purchase a ticket to 

Florida, that it would have made arrangements for his travel. 

In an appeal request form dated March 27, 2014, received by OWCP on September 16, 

2014, appellant’s counsel requested reconsideration. He argued that appellant lived 1,850 

kilometers from Florida and that he did not have the means to buy a plane ticket to Florida. 

Counsel requested that an appointment be scheduled in Puerto Rico. 

By decision dated September 23, 2014, OWCP denied appellant’s request for 

reconsideration without a merit review finding that the evidence presented was not sufficient to 

warrant review of its prior decision. 

LEGAL PRECEDENT 

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

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

(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.4

 Where the request from 

reconsideration fails to meet at least one of these standards, OWCP will deny the application for 

reconsideration without opening the case for a review of the merits.5

ANALYSIS 

In a February 21, 2014 merit decision, OWCP affirmed its decision suspending 

appellant’s compensation under 5 U.S.C. § 8123(d) as appellant did not appear for a scheduled 

 4 E.K., Docket No. 09-1827 (issued April 27, 2010). See 20 C.F.R. § 10.606(b)(2). 

5 L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.606(b). 
4

examination. Appellant submitted a timely request for reconsideration and his counsel asserted 

that he lived far away from Florida and he did not have the financial means to buy a plane ticket 

to Florida. On September 23, 2014 OWCP denied the reconsideration request without a merit 

review. 

The Board finds that OWCP properly denied appellant’s request for reconsideration 

without further merit review. In support of reconsideration, counsel argued that he does not have 

the financial means to fly to Florida from Puerto Rico. He previously made this argument in 

support of reconsideration and OWCP fully addressed it in its February 21, 2014 merit decision. 

Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary 

value and does not constitute a basis for reopening a case.6 Because this argument has been 

previously considered, it was insufficient to require OWCP to conduct a merit review. Appellant 

also did not submit any new evidence nor did he otherwise argue that OWCP erroneously 

applied or interpreted a specific point of law. Because he failed to meet one of the standards 

enumerated under section 8128(a) of FECA, he was not entitled to further merit review of his 

claim. 

On appeal, appellant asserts that OWCP’s decision was unfair as he did not have the 

means to purchase an airplane ticket to Florida. He stated that he would go anywhere in Puerto 

Rico, but reiterated that he did not have the resources to travel to Florida. The Board does not 

have jurisdiction to review the merits of the case. As explained above, appellant did not submit 

any evidence or argument in support of his reconsideration request that warranted reopening of 

his claim for a merit review under section 8128(a). 

CONCLUSION 

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

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

 6 J.P., 58 ECAB 289 (2007). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board