United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.E., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, MOUNT 

RAINIER NATIONAL PARK, Ashford, WA, 

Employer 

__________________________________________ 

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Docket No. 14-1500 

Issued: November 6, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 17, 2014 appellant, through counsel, filed a timely appeal of the March 31, 2014 

decision of the Office of Workers’ Compensation Programs (OWCP) which denied her request 

for reconsideration without conducting a merit review. Because more than 180 days has elapsed 

since issuance of the most recent merit decision dated October 7, 2013 to the filing of this appeal 

on June 17, 2014, the Board lacks jurisdiction to review the merits of the claim pursuant to the 

Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On June 24, 2004 appellant, then a 39-year-old laborer, injured her back while lifting a 

garbage can lid. OWCP accepted the claim for lumbar strain. Appellant did not stop work but 

returned to a full-time light-duty position. 

Appellant underwent an electromyogram (EMG) on December 4, 2008 which revealed no 

lumbar radiculopathy or peripheral neuropathy. She came under the treatment of Dr. W. Brandt 

Bede, a Board-certified orthopedic surgeon, from February 18, 2009 to October 20, 2011, for 

back pain which developed after the June 24, 2004 work injury. In reports dated February 18, 

2009 to October 20, 2011, Dr. Bede noted that appellant continued to experience increased low 

back pain with radiation into the right buttock, thigh and leg. He noted limited range of motion 

of the spine, intact motor and sensory findings and symmetrical reflexes. Dr. Bede diagnosed 

degenerative disc disease, lumbosacral strain, facet arthropathy at L4-5 and L5-S1 without 

evidence of disc herniation. He opined that appellant was disabled from work. 

On November 7, 2011 appellant filed a CA-7, claim for compensation for total disability, 

beginning September 11, 2004. 

Appellant submitted reports from Dr. Bede dated November 9, 2011 to February 3, 2012. 

Dr. Bede treated her for increased back pain with radiation into the groin and right thigh. He 

noted findings of normal gait, intact motor and sensory findings and intact reflexes. Dr. Bede 

diagnosed degenerative disc disease of the lumbar spine and plantar fasciitis of the bilateral feet. 

He recommended anti-inflammatory medication and weight loss. 

In a letter dated November 21, 2011, OWCP requested that appellant submit medical 

evidence establishing that she was totally disabled due to the accepted condition for the period 

claimed. 

Appellant submitted a magnetic resonance imaging (MRI) scan of the lumbar spine dated 

December 7, 2011. It revealed mild lumbar disc and facet degeneration without central canal or 

neural foraminal stenosis and mild levoconvex lumbar scoliosis. 

In a decision dated March 7, 2012, OWCP denied appellant’s claim for compensation for 

total disability for the period beginning September 11, 2004. It found that the medical evidence 

of record failed to support total disability commencing that date. 

Appellant requested an oral hearing which was held on June 29, 2012. She submitted 

reports from Dr. Bede dated May 10 to July 27, 2012 who treated her for a work-related low 

back injury. Dr. Bede noted a history of appellant’s low back injury on June 24, 2004. He stated 

that she was treated with anti-inflammatory medications and physical therapy without success. 

Dr. Bede opined that more likely than not appellant had lumbosacral strain and facet strain 

directly related to the work injury of June 24, 2004. He opined that she could not return to her 

previous job or other work due to her industrial injury. 

In a decision dated September 20, 2012, an OWCP hearing representative affirmed the 

March 7, 2012 decision. 
3

On July 9, 2013 appellant through her attorney requested reconsideration. She submitted 

reports from Dr. Bede dated September 13, 2012 to June 5, 2013. Dr. Bede treated appellant for 

persistent low back pain. He noted limited range of motion of the spine, normal gait and intact 

motor and sensory examination. Dr. Bede diagnosed degenerative disc disease of the lumbar 

spine and opined that the L1-L2 and L3-L4 disc protrusions were related to appellant’s work 

injury and other degenerative changes were aggravated by the industrial injury. In reports dated 

July 18 and August 29, 2013, he noted her complaints of low back pain. Dr. Bede noted no 

change in the physical examination and diagnosed degenerative disc disease of the lumbar spine. 

In a decision dated October 7, 2013, OWCP denied modification of the decision dated 

September 20, 2012. 

On January 15, 2014 appellant through her attorney requested reconsideration. She 

asserted that OWCP erred in concluding that she did not submit sufficient medical evidence to 

support her claim for compensation. Appellant referenced a December 4, 2013 report from a 

Dr. Douglas Seiler; however, this report is not of record. She submitted an MRI scan of the 

lumbar spine dated December 7, 2011 performed by Dr. Seiler, previously of record. Also 

submitted were reports dated October 25 and December 4, 2013 and January 30, 2014 from 

Dr. Bede who treated appellant in follow-up for lower back pain. He noted her complaints of 

aching pain in her lower back which increased with standing and sitting. Dr. Bede noted 

findings of full range of motion of the lumbar spine, normal gait, intact sensory and motor 

examination and symmetrical reflexes. He diagnosed degenerative disc disease of the lumbar 

spine. Dr. Bede opined that more likely than not the disc protrusions on the MRI scan of 

December 7, 2011 were related to the industrial injury and that the industrial injury aggravated 

the preexisting degenerative disc disease. 

In a March 31, 2014 decision, OWCP denied appellant’s request for reconsideration on 

the grounds that the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,2

 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion 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 of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence which: 

“(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 

 2

 5 U.S.C. § 8128(a). 
4

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

by OWCP.”3

Section 10.608(b) provides 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.4

ANALYSIS 

OWCP denied appellant’s claim for wage-loss compensation for the period beginning 

September 11, 2004. It found that the evidence of record failed to support total disability. 

Thereafter, OWCP denied appellant’s reconsideration request, without a merit review. As noted, 

the Board does not have jurisdiction over the October 7, 2013 merit decision. 

The issue on appeal is whether appellant met any of the requirements of 20 C.F.R. 

§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In her 

request for reconsideration, appellant did not establish that OWCP erroneously applied or 

interpreted a specific point of law. Appellant, through her attorney, asserted that she submitted 

sufficient medical evidence to support her claim for compensation and referenced a report from 

Dr. Douglas Seiler dated December 4, 2013. As noted, the record on appeal does not contain this 

report. Appellant’s assertions do not show a legal error by OWCP or a new and relevant legal 

argument. The underlying issue in this case is whether appellant submitted medical evidence 

establishing that she was totally disabled due to the accepted condition for the period 

commencing September 11, 2004. That is a medical issue which must be addressed by relevant 

new medical evidence.5 Appellant did not submit any new and relevant medical evidence in 

support of her claim. 

Appellant submitted an MRI scan of the lumbar spine dated December 7, 2011 performed 

by Dr. Seiler. However, this report is duplicative of evidence previously submitted and was 

considered by OWCP in its March 7, 2012 decision. 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.6

 Therefore, this report is insufficient to require OWCP to reopen the claim for 

a merit review. 

Appellant submitted reports from Dr. Bede dated October 25 and December 4, 2013 and 

January 30, 2014. Dr. Bede noted an essentially normal physical examination and diagnosed 

degenerative disc disease of the lumbar spine. He opined that more likely than not the disc 

protrusions on the MRI scan of December 7, 2011 were related to the industrial injury and the 

injury aggravated the preexisting degenerative disc disease. However, these reports are similar 

 3

 20 C.F.R. § 10.606(b)(2). 

4 Id. at § 10.608(b). 

5 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

6 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984). 
5

to Dr. Bede’s previous reports dated July 27, 2012 and July 18 and August 29, 2013 which were 

previously submitted and considered by OWCP in its decision dated September 20, 2012 and 

October 7, 2013 and found insufficient. 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

 

Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit review. 

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(2). She did not establish 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. 

Appellant did not submit any evidence or argument in support of her reconsideration 

request that warrants reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(2). 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 6, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7 Id.