United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

E.N., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Miami, FL, Employer 

___________________________________________

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Docket No. 16-1000 

Issued: September 20, 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 April 11, 2016 appellant filed a timely appeal of a December 1, 2015 nonmerit 

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

have elapsed from June 29, 2015, the date of the most recent OWCP merit decision, 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 to review the merits of appellant’s 

claim. 

ISSUE 

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

review of the merits under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On September 3, 2014 appellant, then a 43-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on September 2, 2014 he was cleaning the control center 

 1

 5 U.S.C. §§ 8101-8193.
2

and went to pick up a mop bucket full of water when his back tightened up. He indicated that he 

strained his back and had pain running down the right side and leg. Appellant stopped work on 

September 4, 2014. On October 2, 2014 OWCP accepted his claim for aggravation of 

displacement of lumbar intervertebral disc without myelopathy. 

On May 2, 2015 appellant filed a claim for a schedule award (Form CA-7). 

In support on the claim, appellant submitted an April 22, 2015 report from Dr. Behnam 

Myers, an osteopath and Board-certified orthopedic surgeon. Dr. Behman noted appellant’s 

history of injury and treatment and indicated that he had reached maximum medical 

improvement (MMI). He explained that appellant had a whole body impairment of seven 

percent under the American Medical Association, Guides to the Evaluation of Permanent 

Impairment, (6th ed. 2009) (hereinafter, A.M.A., Guides).

By letter dated May 14, 2015, OWCP explained that they were in receipt of the treatment 

note from Dr. Myers recommending a schedule award. Appellant was advised that it had 

received his claim for a schedule award; however, current medical evidence was needed. OWCP 

explained that although the A.M.A., Guides provided guidelines for estimating impairment due 

to disorders of the spine, a schedule award was not payable under FECA for injury to the spine.2 

However, while the A.M.A., Guides did not provide a direct method for evaluating the extremity 

impairments based upon sciatic nerve impairments, The Guides Newsletters offered an approach 

to rating spinal nerve impairments consistent with sixth edition methodology.3 Appellant was 

advised that his physician should provide a report that complied with the A.M.A., Guides. 

OWCP then received a copy of Dr. Myer’s April 22, 2015 report and his January 30, 

2015 report, which did not discuss impairment. 

By decision dated June 29, 2015, OWCP denied appellant’s claim for a schedule award. 

It found that the medical evidence on file did not support a permanent impairment to a scheduled 

member or function of the body. 

OWCP then received several treatment notes from Dr. Myers. They included a 

September 25, 2015 office visit note in which he reiterated his opinion that appellant reached 

MMI on April 22, 2015 and that his rating of seven percent was still valid according to Table 75 

of the A.M.A., Guides. Dr. Myers explained that appellant had electromyography (EMG) scan 

studies and nerve conduction studies which revealed chronic and ongoing denervation at the S1 

level, his symptomatology and subjective complaints correlated well with his physical 

examination and current nerve conduction studies. 

On November 6, 2015 appellant requested reconsideration. 

 By decision dated December 1, 2015, OWCP denied appellant’s request for 

reconsideration without a review of the merits as his request neither raised substantive legal 

questions nor included relevant and pertinent new evidence. It determined that the evidence was 

 2 Pamela J. Darling, 49 ECAB 286 (1998). 

3 L.J., Docket No. 10-1263 (issued March 3, 2011). 
3

an exact duplicate of evidence already part of the file or cumulative and thus it was insufficient 

to warrant review of its prior decision. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4

 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provides that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that: 

“(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 

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

by [OWCP].”5

 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.6

ANALYSIS 

Appellant disagreed with the denial of his claim for a schedule award and requested 

reconsideration on November 6, 2015. 

Appellant does not make any argument that OWCP erroneously applied or interpreted a 

specific point of law or advanced a relevant legal argument not previously considered by the 

OWCP. However, he did submit a new medical report, dated September 25, 2015 from 

Dr. Myers, who opined that appellant had seven percent whole person impairment. OWCP 

denied reopening appellant’s case on the merits, finding that he did not raise substantive legal 

questions or include relevant and pertinent new evidence. The Board agrees. While the report 

from Dr. Myers is new, he merely reiterated his prior opinion he proffered in an earlier report. 

The report of Dr. Myers is not relevant, pertinent new evidence related to the issue of whether 

appellant was entitled to a schedule award. The Board has held that evidence which repeats or 

duplicates evidence already in the case record does not constitute a basis for reopening a case.7

Consequently, the evidence submitted by appellant on reconsideration does not satisfy the 

third criterion, noted above, for reopening a claim for merit review. Furthermore, appellant also 

has not shown that OWCP erroneously applied or interpreted a specific point of law, or advanced 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608(b). 

7 D.K., 59 ECAB 141 (2007). 
4

a relevant new argument not previously submitted. Therefore, OWCP properly denied his 

request for reconsideration. 

On appeal, appellant argues that he had submitted new evidence showing that he had 

nerve damage from his back injury. However, as explained, the medical evidence was not 

relevant and pertinent new evidence and was thus insufficient to require a merit review. 

Regarding his claim for a schedule award, appellant may request a schedule award or 

increased schedule award based on evidence of a new exposure or medical evidence showing 

progression of an employment-related condition resulting in permanent impairment or increased 

impairment. 

CONCLUSION 

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

review of the merits of his claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the December 1, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 20, 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