United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Dallas, TX, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0015 

Issued: March 23, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 5, 2015 appellant filed a timely appeal of a May 29, 2015 nonmerit decision 

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

from the issuance of the most recent merit decision of October 8, 2014 to the filing of this 

appeal, 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

 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the May 29, 2015 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

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

FACTUAL HISTORY 

On November 22, 2013 appellant, a 61-year-old health technician, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a lower back injury due to factors of his 

federal employment, including many years of lifting and pulling patients in the performance of 

duty. He stated that he first became aware of his condition and attributed it to his employment 

on March 20, 2013. The employing establishment indicated that appellant first reported his 

condition to his supervisor on March 20, 2013. 

By decision dated May 19, 2014, OWCP denied the claim as appellant failed to establish 

fact of injury. It found that the evidence was insufficient to establish that the alleged work 

events and injuries occurred as alleged. 

On July 14, 2014 appellant requested reconsideration and submitted a position 

description and a memorandum dated July 1, 2014 from the employing establishment stating that 

appellant’s duties included assisting and transporting patients by stretcher and wheelchair to and 

from procedures at least 30 times per day, which required pushing, pulling, and lifting. He also 

submitted a narrative statement dated July 8, 2014 alleging that he first injured his back at work 

on August 23, 2005 while assisting a total care patient into his vehicle. Appellant further alleged 

a second injury to his lower back on September 13, 2012 while assisting a patient onto a stretcher 

for transport. 

By decision dated October 8, 2014, OWCP denied modification of its prior decision. 

On January 28, 2015 appellant requested reconsideration and submitted medical reports 

and diagnostics studies dated July 12, 2002 through May 29, 2014. Two duty status reports 

(Form CA-17) dated August 24 and 31, 2005 from a physician assistant diagnosed lumbar strain 

and indicated on the employing establishment’s portion of the form that appellant was injured at 

work on August 23, 2005 while lifting a patient into a car.3

 In a March 25, 2010 report, Dr. Jan 

Diehl, a radiologist, found an abnormal magnetic resonance imaging (MRI) scan of the lumbar 

spine and noted that appellant twisted his back while pushing a heavy patient at work. 

By decision dated May 29, 2015, OWCP denied appellant’s request for reconsideration of 

the merits finding that he did not submit pertinent new and relevant evidence and did not show 

that OWCP erroneously applied or interpreted a point of law not previously considered by 

OWCP. 

LEGAL PRECEDENT 

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

a matter of right. It vests OWCP with discretionary authority to determine whether it will review 

                                                             3

 Previous duty status reports in the record contain similar histories on the employing establishment’s side of the 

form. 
3 

an award for or against compensation.4 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).5 

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

OWCP 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.6 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.7 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.8

 

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record9

 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.10 

ANALYSIS 

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

reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). Appellant did not demonstrate that 

OWCP erroneously applied or interpreted a point of law. Moreover, he did not advance a 

relevant legal argument not previously considered by OWCP. 

In support of his January 28, 2015 reconsideration request, appellant submitted medical 

reports and diagnostics studies dated July 12, 2002 through May 29, 2014, including two duty 

status reports from a physician assistant and an MRI scan report from a radiologist. The Board 

finds that submission of these reports do not require reopening appellant’s case for merit review 

as they do not address the factual issue, whether the claimed work events happened as alleged. 

As noted, OWCP denied the claim based on the lack of supportive factual evidence establishing 

that the alleged work events and injuries occurred as alleged. The Board, therefore, finds that 

                                                             4

 5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the 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 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

6

 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009). 

7

 20 C.F.R. § 10.607(a). 

8

 20 C.F.R. § 10.608(b). 

9 See supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

10 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
4 

these medical reports do not constitute pertinent new and relevant evidence.11 Therefore, they 

are insufficient to require OWCP to reopen appellant’s claim for consideration of the merits. 

On appeal appellant argues the merits of his claim. The Board noted above that it only 

has jurisdiction over OWCP’s May 29, 2015 nonmerit decision which denied his request for 

reconsideration and therefore is precluded from conducting a merit review. Appellant did not 

submit any evidence to show that OWCP erroneously applied or interpreted a specific point of 

law or advanced a relevant legal argument not previously considered by OWCP nor did he 

submit pertinent new and relevant evidence with his request for reconsideration. The Board 

finds, therefore, that he did not meet any of the necessary requirements and is not entitled to 

further merit review.12 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the May 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees' Compensation Appeals Board 

                                                             11 See S.P., 59 ECAB 184 (2007) (where a claimant did not establish an employment incident alleged to have 

caused his or her injury, it was not necessary to consider any medical evidence). 

12 See L.H., 59 ECAB 253 (2007).