United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.B., Appellant 

and 

U.S. GOVERNMENT PUBLISHING OFFICE, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-1699 

Issued: November 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 7, 2015 appellant timely appealed the April 16, 2015 nonmerit decision of the 

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

last merit decision of August 1, 2014 to the filing of the current 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.2

ISSUE 

The issue is whether OWCP properly declined to reopen appellant’s case for merit review 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.

2

 The case record provided the Board includes evidence received after OWCP issued its April 16, 2015 decision. 

The Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its 

final decision. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On June 22, 2009 appellant, then a 52-year-old printing plant worker, was injured in the 

performance of duty when a freight elevator door struck him in the head, neck, and shoulder. 

OWCP initially accepted the claim for neck contusion, but subsequently expanded appellant’s 

claim to include brachial neuritis/radiculitis, thoracic or lumbosacral neuritis/radiculitis, and 

lumbar intervertebral disc displacement without myelopathy. 

On May 1, 2013 OWCP granted a schedule award for five percent permanent impairment 

of each upper extremity, for a total of 10 percent. The award covered a period of 31.2 weeks 

from June 22, 2010 through January 26, 2011. OWCP based the award on the district medical 

adviser’s (DMA) March 29, 2013 report. In an August 10, 2012 report, Dr. Joshua M. 

Ammerman, a Board-certified neurosurgeon, found 10 percent permanent cervical spine 

impairment.3 The DMA relied, in part, on Dr. Ammerman’s examination findings, and found 

five percent permanent bilateral upper extremity impairment. 

On June 14, 2013 appellant filed a claim (Form CA-7) for an increased schedule award. 

He filed a similar claim on May 5, 2014. 

In a June 27, 2014 follow-up report, Dr. Ammerman noted that he last saw appellant in 

2012, at which time he assigned 10 percent permanent impairment of the cervical spine due to a 

June 22, 2009 work-related injury. He further noted that appellant currently complained of neck 

pain, low back pain, and radiation of tingling and numbness into the hands and feet. On 

examination, appellant’s motor testing was full in the arms and legs, and his reflexes were trace 

to 1+. Dr. Ammerman also noted that there was moderate restriction of cervical and lumbar 

range of motion. Lastly, he reported that sciatic tension signs and Spurling maneuver were 

negative. Dr. Ammerman recommended obtaining updated cervical and lumbar magnetic 

resonance imaging (MRI) scans, as well as a new set of cervical x-rays. He advised appellant to 

return once the additional studies were completed. 

By decision dated August 1, 2014, OWCP denied appellant’s claim for an increased 

schedule award. It noted that, while Dr. Ammerman referenced his previous 10 percent rating, 

he did not provide a current impairment rating. 

OWCP subsequently received October 25, 2014 cervical and lumbar MRI scan results, as 

well as a November 24, 2014 follow-up examination report from Dr. Ammerman. 

Dr. Ammerman reviewed the recent MRI scans and examined appellant. He noted that he 

discussed the possibility of surgical intervention at C4-5 and L5-S1, but appellant was not 

currently interested. Dr. Ammerman advised that under the circumstances, appellant would have 

to continue to live with his symptoms. He indicated that appellant currently carries a permanent 

 3

 No schedule award is payable for a member, function or organ of the body that is not specified in FECA or the 

implementing regulations. W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006). 

Neither FECA nor the regulations provide for the payment of a schedule award for the permanent loss of use of the 

back/spine or the body as a whole. 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 

367 (2000). However, a schedule award is permissible where the employment-related back condition affects the 

upper and/or lower extremities. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & 

Permanent Disability Claims, Chapter 2.808.5c(3) (February 2013). 
3

impairment rating of 10 percent of the cervical spine related to his June 22, 2009 employment 

injury, “which remains unchanged.” Dr. Ammerman discharged appellant from his care and 

advised that he return on an as-needed basis. 

On February 9, 2015 OWCP received appellant’s February 1, 2015 reconsideration 

request. Appellant submitted the appeal request form that accompanied OWCP’s August 1, 2014 

decision. OWCP later received another follow-up report from Dr. Ammerman dated 

January 30, 2015. Dr. Ammerman reiterated that appellant continues to carry a 10 percent 

permanent impairment rating of the cervical spine related to his June 22, 2009 work injury. He 

noted that he had nothing to offer besides surgery, that “no further neurological follow up is 

required”; and that he did not expect appellant’s symptoms to change without surgical 

intervention. 

In an April 16, 2015 decision, OWCP denied appellant’s request for reconsideration, and 

thus, did not review the merits of his claim. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5

 One such limitation is that the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.6

 A timely application for reconsideration, including all supporting documents, 

must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously 

applied or interpreted a specific point of law; (ii) advances a relevant legal argument not 

previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.7 When a timely application for reconsideration does not meet 

at least one of the above-noted requirements, OWCP will deny the request for reconsideration 

without reopening the case for a review on the merits.8

 4

 This section provides in pertinent part: “[t]he 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). 

5

 20 C.F.R. § 10.607. 

6 Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation 

System (iFECS). See also Chapter 2.1602.4b. 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at §§ 10.607(b), 10.608(b). 
4

ANALYSIS 

OWCP received appellant’s February 1, 2015 request for reconsideration on 

February 9, 2015. As noted, appellant submitted the appeal request form that accompanied the 

August 1, 2014 merit decision. He did not specify the grounds for his request. Appellant merely 

checked the appropriate space on the form indicating reconsideration. The Board finds that his 

February 1, 2015 request for reconsideration neither alleged nor demonstrated that OWCP 

erroneously applied or interpreted a specific point of law. Additionally, appellant did not 

advance any relevant legal arguments not previously considered by OWCP. Accordingly, he is 

not entitled to a review of the merits based on the first and second requirements under section 

10.606(b)(3).9

Appellant also failed to submit any “relevant and pertinent new evidence” with his 

request for reconsideration. Dr. Ammerman’s November 24, 2014 and January 30, 2015 followup examination reports reiterated his August 10, 2012 finding of 10 percent permanent cervical 

spine impairment. Providing additional evidence that repeats or duplicates information already 

in the record does not constitute a basis for reopening a claim.10 Not only is this evidence 

repetitive, but OWCP also previously advised appellant that FECA did not provide for the 

payment of a schedule award for the permanent loss of use of the back/spine.11 Consequently, 

Dr. Ammerman’s November 24, 2014 and January 30, 2015 follow-up examination reports are 

insufficient to warrant further merit review. Because appellant did not provide any “relevant and 

pertinent new evidence,” he is not entitled to a review of the merits based on the third 

requirement under section 10.606(b)(3).12 Accordingly, OWCP properly declined to reopen 

appellant’s case under 5 U.S.C. § 8128(a). 

CONCLUSION 

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

merit review under 5 U.S.C. § 8128(a). 

 9 Id. at § 10.606(b)(3)(i) and (ii). 

10 James W. Scott, 55 ECAB 606, 608 n.4 (2004). 

11 See supra note 3. 

12 20 C.F.R. § 10.606(b)(3)(iii). 
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ORDER 

IT IS HEREBY ORDERED THAT the April 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board