United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.H., Appellant 

and 

DEPARTMENT OF THE NAVY, MARINE 

CORPS LOGISTICS BASE, Albany, GA, 

Employer 

__________________________________________ 

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Docket No. 16-0829 

Issued: November 14, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 1, 2016 appellant filed a timely appeal from a September 4, 2015 nonmerit 

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

elapsed from the last merit decision dated August 25, 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 over the merits of the case. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. The facts relevant to the instant appeal 

will be set forth. Appellant, then a 27-year-old material handler, filed a traumatic injury (Form 

CA-1) on December 8, 1992 alleging that he injured his left hip and lower back on May 20, 

1992, when he slipped and fell to the floor. OWCP accepted the claim for lumbar sprain. 

Appellant stopped work on May 20, 1992 and returned on June 1, 1992. 

On July 11, 1996 OWCP terminated appellant’s compensation benefits. Appellant 

appealed the termination of his compensation benefits to the Board on September 16, 1996. By 

decision dated December 2, 1998, the Board affirmed the termination.2 

On September 24, 2003 appellant filed a recurrence of disability (Form CA-2a). On 

July 22, 2004 OWCP denied his recurrence claim. Appellant requested a hearing before an 

OWCP hearing representative on August 18, 2004. An OWCP hearing representative affirmed 

the denial of appellant’s recurrence claim by decision dated September 19, 2005. On 

December 27, 2005 appellant appealed the September 19, 2005 decision to the Board. By 

decision dated September 7, 2006, the Board affirmed OWCP’s September 19, 2005 decision.3

 

Appellant thereafter filed claims for compensation (Forms CA-7) on April 16, 2007 and 

May 7, 2008 alleging entitlement to wage-loss compensation as of September 6, 1995. 

On June 18, 2008 OWCP expanded acceptance of the claim to include aggravation of 

displacement of intervertebral disc without myelopathy, lumbosacral neuritis, radiculitis, 

sciatica, and aggravation of preexisting degenerative lumbosacral intervertebral disc. This 

acceptance was based upon the March 12, 2008 report of appellant’s treating physician, 

Dr. Wing K. Chang, Board-certified in physical medicine and rehabilitation, who diagnosed L5-

S1 disc degeneration and disc protrusion causally related to appellant’s employment injury, and 

the second opinion physician, Dr. Jeffrey Fried, Board-certified in orthopedic surgery, who 

concurred in a report dated April 15, 2008 that appellant’s lumbar disc disease caused by his 

employment injury had progressed and he now had disc herniation and serve degenerative 

changes at L5-S1. 

By decision dated June 19, 2008, OWCP denied appellant’s claims for disability 

compensation commencing September 6, 1995. Appellant requested a hearing before an OWCP 

hearing representative on July 30, 2008. By decision dated January 8, 2009, an OWCP hearing 

representative affirmed the June 19, 2008 decision. Appellant requested reconsideration on 

July 7, 2009. By decision dated September 2, 2009, OWCP denied modification of its prior 

decision. Appellant again requested reconsideration on August 2, 2010. By decision dated 

September 15, 2010, OWCP again denied modification of its prior decision. 

 2

 Docket No. 97-0164 (issued December 2, 1998). 

3

 Docket No. 06-0468 (issued September 7, 2006). 
3

Appellant appealed to the Board on February 11, 2011. By decision dated January 5, 

2012, the Board affirmed the September 15, 2010 OWCP decision.4 The facts and circumstances 

outlined in the Board’s prior decisions are incorporated herein by reference. 

On May 2, 2008 appellant filed a Form CA-7 claim for a schedule award based on an 

impairment of his lower extremities. 

In an August 27, 2009 report, Dr. John D. Marshall, a specialist in family medicine and 

appellant’s treating physician, advised that appellant was experiencing severe pain in the L5-S1 

region of the spine and that his condition had reached maximum medical improvement as of 

September 16, 1995. 

By letter dated October 21, 2009, OWCP informed appellant that it required additional 

medical evidence in order to determine whether he was entitled to a schedule award. It 

specifically asked him to have his treating physician submit a medical report containing an 

impairment rating rendered pursuant to the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed.). Appellant was afforded 30 

days to submit the additional evidence. 

By decision dated November 16, 2009, OWCP found that appellant had no ratable 

impairment causally related to his accepted lower back conditions and, therefore, was not 

entitled to a schedule award. 

On February 3, 2010 appellant requested reconsideration of the November 16, 2009 

decision. 

In a November 23, 2009 report, Sammy Bonfin, a physical therapist, indicated that 

appellant had three percent right lower extremity impairment and three percent left lower 

extremity impairment pursuant to the A.M.A., Guides. 

In a February 24, 2010 report, OWCP’s medical adviser reviewed Mr. Bonfin’s findings 

and found no ratable impairment of the lower extremities. He noted that there was no 

documentation of radiculopathy or findings of motor or sensory loss from the L4-5 levels, as 

required for an impairment rating under the A.M.A., Guides. 

By decision dated March 12, 2010, OWCP denied modification of the November 16, 

2009 decision. It found that appellant had submitted no impairment rating causally related to his 

accepted lower back conditions, which presented a basis for a schedule award. 

On June 12, 2013 appellant filed another Form CA-7 claim for a schedule award based on 

an impairment of his lower extremities. 

In order to determine whether appellant had any permanent impairment from his accepted 

lower back conditions, OWCP referred him to Dr. Douglas P. Hein, Board-certified in 

orthopedic surgery, for a second opinion examination and impairment rating. In a November 13, 

 4

 Docket No. 11-0848 (issued January 5, 2012). 
4

2013 report, Dr. Hein opined that appellant had no ratable impairment stemming from his 

accepted lower conditions. He advised that on examination appellant had a subjective L3, L4, 

L5, and SI decreased sensation in the left lower extremity. Dr. Hein reported that the 

electrodiagnostic tests he underwent in May 1995, including a magnetic resonance imaging 

(MRI) scan and a computerized axial tomography scan, did not show any evidence of 

compressive neuropathy or radiculopathy. He reported that more recent MRI scans did show 

definite progressive degeneration at the L5-S1 levels with some foraminal stenosis. Dr. Hein 

administered radiographic tests on the date of the examination, which showed significant L5-S1 

disc space degeneration and protrusion with minimal changes at higher levels. 

Dr. Hein opined that appellant had a lumbar strain with aggravation of his degenerative 

disc changes at the time of his work injury of May 20, 1992, with subsequent resolution of the 

acute lumbar strain. He noted that appellant had experienced ongoing symptoms since then, but 

advised that these were more compatible with progressive degeneration, which was not a direct 

result of the May 20, 1992 work injury. Dr. Hein asserted that this was the normal progression 

of appellant’s disease. He reported decreased range of motion on examination, but opined that 

this was greater than would be expected based on his objective findings, which were outweighed 

by his objective findings. Dr. Hein concluded that appellant had zero percent permanent 

impairment of the affected member from the accepted injuries. He asserted that all of appellant’s 

symptoms were attributable to preexisting abnormalities. 

By decision dated December 12, 2013, OWCP found that appellant had no ratable 

impairment causally related to his accepted lower back conditions and, therefore, was not 

entitled to a schedule award. It noted that Dr. Hein had asserted in his second opinion report that 

there was no basis for a schedule award stemming from appellant’s accepted lower back 

conditions. 

On December 17, 2013 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on June 9, 2014. 

By decision dated August 25, 2014, an OWCP hearing representative affirmed the 

December 12, 2013 decision denying appellant’s schedule award claim. He explained that 

appellant had not submitted evidence from a treating physician, establishing that appellant had 

permanent impairment pursuant to the A.M.A., Guides. Dr. Hein, the second opinion physician 

had provided a proper report, which concluded that appellant did not have ratable impairment 

pursuant to the A.M.A., Guides. 

On August 24, 2015 appellant requested reconsideration. With his request for 

reconsideration he submitted a number of documents that did not pertain to his schedule award 

claim. Appellant also submitted additional medical evidence. 

In reports dated August 5, September 3, and November 25, 2014, Dr. Lamar Moree, 

Board-certified in pain medicine, advised that appellant was experiencing chronic lower back 

pain secondary to degenerative disc disease of the lumbosacral spine and osteoarthritis. He 

noted in his September 3, 2014 report that on examination appellant showed moderate tenderness 

to palpation to the lumbosacral spine. In his November 25, 2014 report, Dr. Moree attributed his 

lower back pain to a previous work-related trauma. 
5

In a December 11, 2014 report, Dr. Marshall advised that appellant was experiencing 

work-related back spasms and numbness in his left foot. He opined that appellant had lumbar 

disc disease and paresthesias of the left leg. 

In a May 19, 2015 report, Dr. Marshall advised that appellant had sharp pain in his right 

side, lumbosacral back pain with movement, and cramping of the left leg. 

By decision dated September 4, 2015, OWCP denied appellant’s application for review 

as it neither raised substantive legal questions, nor included new and relevant evidence sufficient 

to require OWCP to review its prior decision. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.5

 Section 10.608(a) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).6 This section provides that the application for reconsideration must be submitted 

in writing and 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 Section 10.608(b) provides that when a request for 

reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.8

ANALYSIS 

In the present case, appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law, nor has he advanced a relevant legal argument not previously 

considered by OWCP. He did submit a series of reports from Drs. Moree and Marshall from 

2014 and 2015. 

The Board has held that the submission of evidence which does not address the particular 

issue involved in the case does not constitute a basis for reopening the claim.9

 The issue in this 

case is medical; i.e., whether appellant had any ratable impairment causally related to his 

accepted lower back conditions entitled him to a schedule award. The reports from Drs. Moree 

and Marshall are not relevant as they do not contain an impairment rating rendered pursuant to 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.608(a). 

7 Id. at § 10.606(b)(3). 

8 Id. at § 10.606(b). 

9 See David J. McDonald, 50 ECAB 185 (1998). 
6

the A.M.A., Guides. These reports merely state findings on examination and indicate that 

appellant was experiencing continuing lower back pain generally attributable to the May 20, 

1992 work injury. 

Appellant’s reconsideration request failed to show that OWCP erroneously applied or 

interpreted a point of law, nor did it advance a point of law not previously considered by OWCP. 

The additional evidence submitted by appellant with his request for reconsideration did not 

constitute pertinent new and relevant evidence. The Board thus finds that OWCP did not abuse 

its discretion in refusing to reopen appellant’s claim for a review on the merits. 

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 

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

ORDER 

IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 14, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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