United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.S., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, NATIONAL INSTITUTES OF 

HEALTH, Bethesda, MD, Employer 

__________________________________________ 

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Docket No. 14-2010 

Issued: September 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 18, 2014 appellant filed a timely appeal from the March 24, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 

days elapsed between the last merit decision of OWCP, dated September 18, 2012, and the filing 

of this appeal, and 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 this case.2

 1

 5 U.S.C. §§ 8101-8193. 

2

 In connection with his appeal, appellant timely requested an oral argument before the Board. In an order dated 

February 23, 2015, the Board denied his request for oral argument, noting that the appeal could be adequately 

addressed in a decision based on the case record. By letter dated July 5, 2015, appellant filed a “request for 

reconsideration” of the Board’s denial. There is no provision in the Board’s regulations for such reconsideration. 

Oral arguments are held solely within the discretion of the Board. As noted in the February 23, 2015 order, the 

Board does not have jurisdiction over the merits of the case and in its discretion denied to hear oral argument. 
2

ISSUE 

 The issue is whether OWCP properly denied appellant’s request for further review of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

This case has previously been before the Board. In June 1978 appellant, then a 36-yearold statistician, filed an occupational disease claim alleging that he sustained a digestive system 

disorder due to the stress of his work duties, which included managing the collection of data 

relating to drug usage and treatment, extensive travel, and having discrimination suits filed 

against him and his employing establishment. OWCP accepted that he sustained work-related 

temporary aggravation of preexisting Crohn’s disease. Appellant stopped working for the 

employing establishment on June 16, 1978. He underwent a resection of his right colon and 

small bowel in August 1981. In a January 17, 1983 report, Dr. Raymond Cohen, an attending 

Board-certified internist specializing in gastroenterology, stated that he had palpated a large mass 

of matted small intestine loops in appellant’s right lower quadrant during examinations between 

August 1978 and May 1980. 

In a November 20, 2001 decision,3

 the Board affirmed the June 16, 1978 OWCP 

termination of appellant’s compensation based on the February 20, 1991 opinion of Dr. Bernard 

Aserkoff, a Board-certified internist specializing in gastroenterology, who served as an OWCP 

referral physician. The Board determined that, because OWCP had relied upon the opinion of 

Dr. Aserkoff to terminate appellant’s compensation effective June 16, 1978, the burden of proof 

shifted to appellant to establish continuing compensation after that date. Appellant had 

submitted additional medical evidence from attending physicians which created a conflict in the 

medical opinion evidence on the issue of whether he had continuing work-related disability after 

June 16, 1978. The Board directed OWCP to refer appellant to an impartial medical specialist to 

resolve the conflict in medical evidence. 

On remand OWCP referred appellant to Dr. Joseph J. Genovese, Jr., a Board-certified 

internist specializing in gastroenterology, for an impartial medical examination. In a May 2, 

2002 report, Dr. Genovese determined that appellant did not have a work-related disability after 

his termination on June 16, 1978. 

Based on Dr. Genovese’s report, in a June 12, 2002 decision, OWCP denied appellant’s 

claim for continuing disability after June 16, 1978. 

In a November 12, 2002 decision,4

 the Board found that the opinion of Dr. Genovese 

required clarification. On remand, OWCP obtained an October 23, 2003 supplemental report 

from Dr. Genovese and, by decision dated November 14, 2003, denied appellant’s claim for 

disability after June 16, 1978 finding that the opinion of Dr. Genovese constituted the weight of 

the medical evidence. 

 3

 Docket No. 98-2175 (issued November 20, 2001). 

4

 Docket No. 02-1905 (issued November 12, 2002). 
3

In an April 5, 2007 decision,5

 the Board again found that the reports of Dr. Genovese did 

not constitute the weight of the medical opinion regarding whether appellant had an 

employment-related disability after June 16, 1978. The Board noted that the burden of proof 

continued to rest with appellant to offer probative evidence that he was entitled to compensation. 

The Board found a conflict in the medical evidence on whether there was a work-related 

disability after the termination of appellant’s benefits on June 16, 1978. The Board directed 

OWCP to refer appellant to a new impartial medical specialist for an examination. 

On remand OWCP referred appellant to Dr. Richard A. Baum, a Board-certified internist 

specializing in gastroenterology, for an impartial medical examination and an opinion on 

appellant’s continuing disability. In a July 23, 2007 report, Dr. Baum found that the 

exacerbation of appellant’s Crohn’s disease had been temporary and the temporary aggravation 

had resolved. He found no continuing disability after the June 16, 1978 termination. Dr. Baum 

further stated that appellant’s disability, as related to a temporary aggravation, should have 

resolved fairly quickly after cessation of his employment. It was Dr. Baum’s opinion that the 

long-term problems appellant had experienced were related only to his underlying Crohn’s 

disease. 

In an August 22, 2007 decision, OWCP determined that appellant had not established 

entitlement to compensation after June 16, 1978. It found that the weight of the medical 

evidence regarding this matter rested with the July 23, 2007 report of Dr. Baum. 

Appellant submitted a March 24, 2006 report from Dr. Robert Lerman, an attending 

Board-certified internist specializing in nutrition. Dr. Lerman reported that appellant suffered 

from a permanent work-related aggravation of his Crohn’s disease as there continued to exist 

objective evidence of Crohn’s disease, including an intestinal mass, after the termination of 

benefits, effective June 16, 1978. 

In an August 19, 2008 decision, an OWCP hearing representative remanded the case for a 

supplemental report from Dr. Baum. 

OWCP requested that Dr. Baum review Dr. Lerman’s March 24, 2006 report to 

reevaluate whether appellant continued to have work-related disability after the termination of 

benefits on June 16, 1978. Dr. Baum found in his supplemental September 11, 2008 report that 

there were no new facts in the additional information which would cause him to modify his 

July 23, 2007 assessment. 

By decision dated October 23, 2008, OWCP again determined that appellant had not 

established entitlement to compensation after June 16, 1978. It found that the weight of the 

medical evidence regarding this matter rested with the July 23, 2007 and September 11, 2008 

reports of Dr. Baum. In a June 30, 2009 decision, an OWCP hearing representative affirmed 

OWCP’s October 23, 2008 decision. 

 5

 Docket No. 06-1756 (issued April 5, 2007). 
4

In a February 11, 2011 decision,6

 the Board found a continuing conflict in the medical 

evidence between Dr. Baum and Dr. Lerman and as to continuing disability caused by the 

accepted condition of temporary aggravation of preexisting Crohn’s disease. The Board 

remanded the case referral to a new impartial medical specialist for an examination and an 

opinion on the persistent question of whether appellant had established continuing disability after 

June 16, 1978. 

On remand OWCP referred appellant to Dr. Gary Thompson, a Board-certified internist 

specializing in gastroenterology. In his July 8, 2011 report, Dr. Thompson discussed the 

progression of appellant’s Crohn’s disease since the late 1960s, the treatment appellant had 

received for his condition, and reported the findings of his examination. He discussed the 

relationship between psychological stress and the manifestation of symptoms related to Crohn’s 

disease. Dr. Thompson stated, “In summary, the claimant has unfortunately suffered from the 

chronic, unpredictable, and sometimes devastating natural history of Crohn’s disease. His illness 

was not due to his employment factors.” 

In a July 11, 2011 decision, OWCP denied appellant’s claim for continuing disability 

after June 16, 1978 based on the opinion of Dr. Thompson. 

In a June 10, 2012 letter received on June 13, 2012, appellant requested reconsideration 

of OWCP’s July 11, 2011 decision and again asserted that he had actually suffered a permanent, 

work-related aggravation of his preexisting Crohn’s disease. He argued that he continued to 

have disability due to this permanent, work-related condition. Appellant claimed that 

Dr. Thompson failed to provide adequate medical rationale in support of his opinion that there 

was no work-related medical condition or disability after June 16, 1978. 

In a September 28, 2012 decision, OWCP affirmed its July 11, 2011 decision after 

reviewing the merits of appellant’s arguments. 

In a September 21, 2013 letter received on September 26, 2013, appellant requested 

reconsideration of OWCP’s September 28, 2012 decision and presented arguments in support of 

his reconsideration request. He argued that, despite the fact that OWCP had accepted only a 

temporary, work-related aggravation; the evidence clearly established a permanent aggravation. 

Appellant contended that the July 8, 2011 report of Dr. Thompson was not well rationalized 

because it did not explain why the work-related residuals ceased after June 16, 1978. He argued 

that Dr. Thompson ignored medical evidence and also suggested that Dr. Thompson actually 

found a work-related permanent aggravation. Appellant also argued that OWCP’s September 28, 

2012 decision was internally inconsistent. Finally, he expressed his belief that it was illogical for 

OWCP to conclude that his condition had been suddenly “cured” of any work-related 

aggravation on June 16, 1978, his last official day of employment. 

In a March 24, 2014 decision, OWCP denied appellant’s request for further review of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that his arguments were not new or 

relevant and had already been considered and rejected. 

 6

 Docket No. 10-502 (issued February 11, 2011). 
5

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7

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.8 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.9

 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.10 The Board has held that the submission of evidence 

or argument which repeats or duplicates evidence or argument already in the case record11 and the 

submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a case.12 While a 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.13 

ANALYSIS 

OWCP issued a decision on September 28, 2012 finding that appellant had not 

established work-related disability after June 16, 1978. Appellant requested reconsideration of 

that decision on September 26, 2013. 

The Board lacks jurisdiction to review the merits of the underlying issue of whether 

appellant properly accepted only a temporary aggravation of Crohn’s disease. The Board’s 

jurisdiction is limited to determining whether OWCP properly denied a merit review of his 

request for reconsideration. 

The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), 

which require OWCP to reopen the case for review of the merits. In his application for 

reconsideration, appellant failed to show that OWCP had erroneously applied or interpreted a 

specific point of law. He also failed to advance a new and relevant legal argument. Appellant’s 

argument was, and remains, that OWCP erred by accepting only a temporary work-related 

aggravation of his preexisting Crohn’s disease. He asserts that the evidence established a 

 7

 Under section 8128 of FECA, “[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). 

8

 20 C.F.R. § 10.606(b)(3). 

9 Id. at § 10.607(a). 

10 Id. at § 10.608(b). 

11 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980). 

12 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

13 John F. Critz, 44 ECAB 788, 794 (1993). 
6

permanent aggravation. Appellant has already made this argument many times. OWCP has 

considered and rejected it based on the record. A repetitious argument does not require a 

reopening of appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).14

The Board notes that the issue in this case remains whether appellant had, or has, a workrelated disability after June 16, 1978. That is a medical issue which must be addressed by 

relevant medical evidence.15 Appellant has argued that the July 8, 2011 opinion of 

Dr. Thompson was not well rationalized and should not constitute the weight of the medical 

evidence. However, OWCP has previously considered and rejected his argument as well. 

The Board notes that appellant has filed numerous papers in this appeal and at other 

stages in the proceedings which relate to factual and legal issues. These briefs, letters, 

memoranda, and other submissions make clear appellant’s disagreement with OWCP’s decisions 

over a number of years. The Board has reviewed these arguments and factual assertions as they 

relate to the narrow confines of this appeal. 

At this time, the only question to be decided is whether appellant has shown that OWCP 

erred when it denied him a merit review of his claim in its decision of March 24, 2014. The vast 

preponderance of appellant’s submissions do not address this test and need not be discussed in 

deciding the single issue presented in his appeal to this Board. 

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

§ 10.606(b)(3) to warrant a review of the merits. Appellant did not show that OWCP had 

erroneously applied or interpreted a specific point of law; he did not advance a relevant legal 

argument not previously considered by OWCP; and he failed to submit relevant and pertinent 

new evidence. As such, the Board finds that, pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied merit review. 

CONCLUSION 

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

merits of his claim pursuant to 5 U.S.C. § 8128(a). 

 14 See supra note 12. 

15 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 24, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 2, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board