United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.E., Appellant 

and 

DEPARTMENT OF COMMERCE, 

NATIONAL OCEANIC ATMOSPHERIC 

ADMINISTRATION, Seattle, WA, Employer 

__________________________________________ 

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Docket No. 15-0963 

Issued: September 2, 2016 

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 16, 2015 appellant, through counsel, filed a timely appeal from a 

September 15, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).2 As more than 180 days elapsed from OWCP’s last merit decision on July 11, 2012 to 

the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 

20 C.F.R. § 501.5(b). The Board denied the request in an October 9, 2015 order as his arguments could be 

adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral 

Argument, Docket No. 15-0963 (issued October 9, 2015). 

3

 5 U.S.C. § 8101 et seq.
2

ISSUE 

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

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

FACTUAL HISTORY 

In 2005 OWCP accepted that appellant, an engineer about the McArthur II, developed an 

aggravation of chronic obstructive pulmonary disease in the performance of duty. His pay rate 

has remained a disputed issue in his claim. 

In the July 11, 2012 decision, an OWCP hearing representative found that the effective 

date of appellant’s pay rate should be December 6, 2004, the date his disability began. The 

record indicated that appellant was earning $50,798.00 as a second assistant engineer on 

December 6, 2004. Indeed, appellant represented on his initial injury claim form that he was a 

second engineer. The hearing representative found that average annual earnings should be 

determined under 5 U.S.C. § 8114(d)(2). She also found that OWCP properly included 

increments for penalty pay/post differential, monthly leave supplement/ nonwatch standing 

allowance, and subsistence and quarters. The hearing representative ultimately concluded in a 

decision of July 11, 2012, that appellant’s weekly pay rate for compensation purposes was 

$1,079.62. 

On August 14, 2013 the Board affirmed the hearing representative’s July 11, 2012 

decision4

 as to appellant’s pay rate for compensation purposes. 

On July 29, 2014 OWCP received appellant’s requested reconsideration.5 Appellant 

noted that he was submitting new evidence to show that at the time disability began he was a first 

assistant engineer and had been since 2004 [sic]. He argued that this was relevant because the 

employing establishment injury compensation officer had claimed that he was a second assistant 

engineer on the date disability began, and that he did not work as a first assistant engineer during 

substantially the whole year immediately preceding the date disability began. This new 

evidence, appellant argued, was proof that he worked as a first assistant engineer for more than 

11 straight months prior to and including the date disability began. Documentation notes: 

“The employing establishment acknowledges in their letter of April 4, 2012 that 

[appellant] was promoted to First Asst. Engineer on June 29, 2003. It was a 

temporary promotion and his permanent promotion to First Asst. Engineer 

became effective on June 11, 2004. [Appellant] worked continuously as a First 

Asst. Engineer from June 29, 2003 until the date disability began on 

January 31, 2005.” 

 4

 Docket No. 13-0522 (issued August 14, 2013). 

5

 Although appellant claimed to be filing a request for reconsideration from the Board’s August 14, 2013 

decision, OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to 

the subject matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. 

§ 501.6(d). Although the August 14, 2013 Board decision was the last merit decision, the hearing representative’s 

July 11, 2013 decision is the appropriate subject of possible modification by OWCP. 
3

Appellant submitted a copy of the April 4, 2012 letter from the manager of the employing 

establishment’s workers’ compensation program. The manager advised that appellant was a 

second assistant engineer at the time of injury and was promoted, on a temporary basis, to the 

position of first assistant engineer on June 29, 2003, two months after the injury. The manager 

argued that appellant’s weekly salary rate should be based on his pay rate as a second assistant 

engineer. 

Appellant also submitted an SF-3112B, a supervisor’s statement in connection with 

disability retirement, which indicated that the title of appellant’s position of record was first 

assistant engineer. The statement also noted that he had entered into that position on 

June 11, 2004. The statement also indicated that he retired effective January 31, 2005. 

By decision dated September 15, 2014, OWCP denied appellant’s reconsideration 

request. It found that the evidence submitted was cumulative and thus substantially similar to 

evidence or documentation that was already contained in the case file and was thus previously 

considered. 

On appeal, appellant argues that his pay rate should be based on his total gross earnings a 

year prior to the date disability began, not based on the earnings of a hypothetical second 

assistant engineer under 5 U.S.C. § 8114(d)(2). He argues that the new evidence he submitted is 

relevant and proves that he was a first assistant engineer on December 6, 2004. 

LEGAL PRECEDENT 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or upon application.6 An employee (or representative) seeking reconsideration 

should send the request for reconsideration to the address as instructed by OWCP in the final 

decision. The request for reconsideration, including all supporting documents, must be in 

writing and must set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.7

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP decision for which review is sought.8

 The one-year period begins on the date of the 

original decision. However, a right to reconsideration within one year accompanies any 

subsequent merit decision on the issues. This includes any hearing or review of the written 

record decision, any denial of modification following reconsideration, any merit decision by the 

Board, and any merit decision following action by the Board, but does not include prerecoupment hearing decisions.9

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.606(b). 

8 Id. § 10.607(a). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (January 2004). 

(Emphasis deleted.) 
4

A timely request for reconsideration may be granted if OWCP determines that the 

employee has presented evidence or argument that meets at least one of the three standards. If 

reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the 

request is timely but fails to meet at least one of these standards, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.10

ANALYSIS 

OWCP received appellant’s reconsideration request on July 29, 2014, within one 

calendar year of the Board’s August 14, 2013 merit decision. The request is therefore timely. 

The issue on this appeal is whether the evidence appellant submitted to support his request for 

reconsideration constitutes relevant and pertinent new evidence not previously considered by 

OWCP.11

The April 4, 2012 correspondence from the manager of the employing establishment’s 

workers’ compensation program is not new evidence. OWCP previously received this evidence 

on April 9, 2012 in connection with appellant’s hearing request. The hearing representative 

noted this evidence in her July 11, 2012 decision. Evidence that repeats or duplicates evidence 

already of record has no evidentiary value and constitutes no basis for reopening a case.12 

Accordingly, the Board finds that this evidence does not meet the third standard for obtaining a 

merit review of appellant’s claim. 

The August 15, 2005 SF-3112B, supervisor’s statement in connection with disability 

retirement, is also not new evidence. OWCP previously received this evidence on August 30, 

2005, together with appellant’s IRS Form W-2 wage and tax statements. It later received this 

same evidence on March 28, 2007. As before, evidence that repeats or duplicates evidence 

already of record has no evidentiary value and does not constitute a basis for reopening appellant’s 

claim. Accordingly, the Board finds that this evidence does not meet the third standard for 

obtaining a merit review of appellant’s claim. 

Appellant argues on appeal that the evidence he submitted is new and relevant and 

therefore entitles him to a merit review. However, as explained above, the evidence is not new. 

Because the evidence repeats or duplicates evidence already in the record, it provides no basis 

for reopening his case. 

CONCLUSION 

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

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

 10 20 C.F.R. § 10.608. 

11 Appellant did not attempt to show that OWCP erroneously applied or interpreted a specific point of law, nor 

did he advance a relevant legal argument not previously considered by OWCP 

12 Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 15, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board