United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.R., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

FINANCE & ACCOUNTING SERVICE, 

Indianapolis, IN, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1924 

Issued: September 27, 2016 

Appearances: Case Submitted on the Record

Leah Bachmeyer, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 23, 2015 appellant, through counsel, filed a timely appeal from a 

March 30, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2

 

As more than 180 days elapsed from January 10, 2014, the date of the most recent OWCP merit 

decision, to the filing of the current appeal, pursuant to the Federal Employees’ Compensation 

 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

 With her appeal, appellant’s counsel submitted a timely request for oral argument in connection with OWCP’s 

March 30, 2015 decision. By order issued on May 15, 2016, the Board granted appellant’s request for oral 

argument. Order Granting Request for Oral Argument, Docket No. 15-1924 (issued May 15, 2016). On August 9, 

2016 appellant’s counsel requested that the oral hearing be cancelled. 
2

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the 

merits of the claim. 

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 

On January 27, 2012 appellant, then a 58-year-old accounting technician, filed an 

occupational disease claim (Form CA-2) alleging that prolonged sitting aggravated preexisting 

accepted conditions that OWCP had developed under claim number xxxxxx345.4

 He claimed 

that work activities aggravated his lumbar spondylosis and osteoarthritis, cup arthroplasty, right 

and left hip arthritis, and disc displacement. Appellant became aware of his condition on 

January 23, 2012. 

In a February 19, 2012 report, Dr. Eric Aitken, a Board-certified physiatrist, provided a 

history of appellant’s treatment. He advised that appellant underwent an arthroplasty in the 

1980’s that resulted in a shortened lower extremity and in 2003 he began experiencing symptoms 

with no clear inciting event. Dr. Aitken noted that appellant had significant pain with internal 

and external rotation of the right hip. He contended that, due to significant limitation in 

appellant’s mobility and his inability to sit for prolonged periods, he was unable to work in any 

capacity. Dr. Aitken noted that appellant was scheduled for a total hip arthroplasty, but it was 

postponed due to his weight. 

Appellant submitted a statement summarizing a conference with his orthopedic surgeon 

on February 22, 2012 in which the surgeon noted that an x-ray of the right hip, for which 

appellant had surgery in July 1984, showed bone growth that restricted the rotation of the right 

leg and shortening of that leg. He indicated that he was contemplating further surgery, but the 

surgeon was reluctant to operate due to appellant’s weight. 

In a March 21, 2012 statement, appellant attributed his condition to prolonged sitting and 

continuous pressure on his hip over time. He noted that in 2007 he was moved to a sitting job 

due to aggravation of his preexisting conditions. Appellant indicated that he used a power chair 

during his tour of duty and took occasional breaks from sitting. 

In a decision dated May 10, 2012, OWCP denied appellant’s claim because evidence of 

record was insufficient to establish causal relationship between the accepted factors of his federal 

employment and his medical conditions. 

 3

 5 U.S.C. § 8101 et seq. 

4

 Claim number xxxxxx345 is not before the Board on the present appeal. OWCP developed the present matter 

under claim number xxxxxx098. 
3

In a March 28, 2013 report, Dr. Aitken noted that appellant underwent a total hip 

arthroplasty which provided some improvement in pain. He opined that the “settling of [his] 

right hip may in part be contributed by his work and may in part have been a result of the 

sedentary position that he was maintaining.” Dr. Aitken further opined that his increasing right 

hip pain was attributable to his previous work-related injuries explaining that it increased weight 

bearing to the right lower extremity which led to degeneration of his previous partial hip surgery. 

He concluded that there was a causal relationship between appellant’s previous injury and his 

most recent pain and issues related to the right hip. 

Appellant requested reconsideration on April 9, 2013. 

By decision dated April 17, 2013, OWCP denied modification of its prior decision. It 

noted that appellant’s claim under number xxxxxx345 had been accepted for aggravation of his 

preexisting back, and left and right hip conditions resulting from factors of his federal 

employment. However, after reviewing Dr. Aitken’s report, OWCP concluded that his opinion 

was speculative as it remained unclear as to how appellant’s sedentary work duties further 

worsened or aggravated his preexisting conditions “that were already worsened by your prior 

work duties” under claim number xxxxxx345. 

On November 5, 2013 appellant requested reconsideration. 

In a September 12, 2013 report, Dr. Aitken advised that he had treated appellant since 

2008. He noted that appellant related a history of symptoms since 2003 without any clear 

inciting events. Dr. Aitken reported appellant’s work history with the employing establishment 

and listed examination findings. He noted that he saw appellant in February 2012 with 

complaints of increasing right hip pain that occurred with prolonged sitting at work. X-rays 

showed the previous conservative hip arthroplasty with the femoral head resurfacing on the right 

with settling of the femoral head and neck within the resurfaced area. Dr. Aitken indicated that 

appellant was referred to a surgeon and underwent a right total hip arthroplasty which provided 

improvement in his symptoms.5

 He opined that appellant’s sedentary position at work resulted 

in a settling of the femoral head and the neck within the resurfaced area and necessitated the total 

hip arthroplasty at that time. 

On November 22, 2013 OWCP prepared a statement of accepted facts (SOAF). It 

addressed claims under xxxxxx345, xxxxxx729, and xxxxxx098. OWCP noted that appellant’s 

claim under xxxxxx345 was accepted for aggravations of lumbar spondylosis, herniated disc, 

right hip arthroplasty, and left hip degenerative joint disease.6

 Appellant received a schedule 

award for six percent permanent impairment of the left leg and 15 percent permanent impairment 

of the right leg due to the accepted conditions under claim number xxxxxx345. OWCP stated 

that he had a total right hip replacement in September 2012. It sent the SOAF to Dr. Aitken on 

November 22, 2013 and requested that he address how any diagnosed conditions were caused or 

aggravated by appellant’s occupational exposures in January 2012. Dr. Aitken did not respond. 

 5

 No operative report appears in the record before the Board. 

6

 No conditions were accepted under claim number xxxxxx729. 
4

By decision dated January 10, 2014, OWCP denied modification of its prior decision. 

OWCP found that Dr. Aitken did not explain in his September 12, 2013 report how appellant’s 

“sedentary occupational exposure during January 2012 directly caused a new medical condition 

or aggravated or caused a material worsening to a preexisting medical condition.” OWCP noted 

that the doctor did not respond to its request for a supplemental medical opinion to explain 

causation or aggravation. 

In a January 7, 2015 letter, received by OWCP on January 12, 2015, appellant, through 

counsel, requested reconsideration. Counsel contended that there was no reason to file a new 

claim or a recurrence claim as his current condition was a natural progression of the conditions 

accepted by OWCP under claim number xxxxxx345. She noted that her firm was retained to 

determine if an increased schedule award was warranted under claim number xxxxxx345 due to 

appellant’s increased impairment. Counsel concluded that there was no reason to file a 

recurrence claim, nor a claim for a new injury under the current file number. She requested that 

the current claim be combined with the original claim number, xxxxxx345, and that OWCP 

consider appellant’s entitlement to further compensation based on the natural progression of the 

employment condition accepted under claim number xxxxxx345. 

By decision dated March 30, 2015, OWCP denied appellant’s request for reconsideration 

without a merit review. 

On appeal before the Board counsel argues that appellant had preexisting displacement of 

a lumbar intervertebral disc without myelopathy, lumbosacral spondylosis without myelopathy, 

right unspecified arthroplasty of the pelvic region and thigh, and left localized primary 

osteoarthritis of the pelvic region and thigh accepted under claim number xxxxxx345. She notes 

that his claims examiner denied authorization for a hip replacement and informed him that he 

needed to file a recurrence claim. Counsel asserts that both appellant and his doctor believed the 

surgery was causally related to his accepted conditions, and that his need for a hip replacement 

was not a medical recurrence as there was no breakage in the chain of causation, release from 

treatment, spontaneous change in condition, change in a light-duty assignment, or withdrawal of 

an accommodation. Counsel contended that “the entire matter” should be “rebundled back to 

the original claim number” xxxxxx345. 

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 

an award for or against compensation.7 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).8 

 

 7

 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). 

8 See Annette Louise, 54 ECAB 783, 789-90 (2003). 
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.9 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received by OWCP within one year of the date of that decision.10 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.11 

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

duplicates evidence or argument already in the case record does not constitute a basis for 

reopening a case.12

ANALYSIS 

The most recent decision reviewing the merits of appellant’s case was OWCP’s 

January 10, 2014 decision which found that the medical evidence was insufficient to establish 

that appellant’s work duties caused or aggravated his claimed conditions. In support of his 

reconsideration request, appellant has neither shown that OWCP erroneously applied or 

interpreted a specific point of law, nor has he submitted relevant and pertinent new evidence. 

Instead, counsel alleged that appellant’s current condition is a natural progression of his 

conditions that have been accepted under claim number xxxxxx345, and thus, is not a new 

injury. She asserts that, in order to properly determine whether appellant has established that 

compensation benefits are warranted based on the natural progression of the employment 

condition accepted under claim number xxxxxx345, OWCP should combine claim number 

xxxxxx345 with the current claim, number xxxxxx098 to resolve the issue. 

The Board finds that appellant’s reconsideration request fails to advance a relevant legal 

argument not previously considered by OWCP. In its April 17, 2013 and January 10, 2014 merit 

decisions, OWCP had determined that the medical evidence of record, as represented by 

Dr. Aitken, did not sufficiently explain how and why appellant’s work duties either caused or 

aggravated his accepted conditions. On reconsideration, counsel raises the same argument as 

appellant had before he retained counsel. As this argument was previously advanced and 

reviewed by OWCP, the Board finds that it is insufficient to warrant reopening the case for 

further consideration of the merits. The Board has held that the submission of evidence or 

argument which repeats or duplicates evidence or argument already in the case record does not 

constitute a basis for reopening a case.13 The Board finds that, as appellant has not met any of 

 9

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

10 Id. at § 10.607(a). 

11 Id. at § 10.608(b). 

12 See Eugene F. Butler, 36 ECAB 393, 398 (1984); see also V.R., Docket No. 16-0969 (issued August 8, 2016). 

13 Id. 
6

the criteria for further consideration of the merits of his claim, OWCP properly denied his 

request for reconsideration.14

CONCLUSION 

The Board finds that OWCP properly denied appellant’s January 12, 2015 

reconsideration request under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 27, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 Should appellant wish to pursue an increased schedule award in claim number xxxxxx345, the Board notes that 

he 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.