United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.F., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, Quantico, VA, 

Employer 

__________________________________________ 

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Docket No. 17-0694 

Issued: June 22, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 February 6, 2017 appellant filed a timely appeal from a November 3, 2016 nonmerit 

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

has elapsed from the last merit decision dated July 14, 2016, 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 this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration of 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 15, 2007 appellant, then a 41-year-old supervisory special agent, filed an 

occupational disease claim (Form CA-2) alleging that he sustained cervical disc injuries as a 

result of his federal employment. He alleged that in November 1993 as well as from 1999 to 

2002, he was a member of a special weapons and tactics team, and his duties included numerous 

physical activities while wearing a heavy vest and helmet. Appellant also indicated that from 

November 15 to 16, 2006 he was in charge of a work-related exercise and had sharp pain in his 

neck. 

OWCP accepted the claim on October 24, 2008 for aggravation of cervical disc 

displacement without myelopathy. There is no indication that appellant claimed or received 

wage-loss compensation at the time. 

Appellant filed a claim for compensation (Form CA-7) on November 10, 2008, indicating 

that he was claiming a schedule award. By decision dated March 12, 2009, OWCP issued a 

schedule award for 14 percent left upper extremity permanent impairment. The period of the 

award was 43 weeks, commencing December 8, 2008. 

On January 11, 2016 appellant filed a claim for a recurrence (Form CA-2a) commencing 

December 1, 2015. He indicated that on the claim form that the recurrence was for medical 

treatment only. 

OWCP advised appellant by letter dated January 14, 2016 that further medical evidence 

was necessary to establish his recurrence claim. Appellant was afforded 30 days to submit the 

necessary evidence. 

In response to the January 14, 2016 OWCP letter, appellant wrote that he had chronic, 

recurring pain. 

By decision dated February 17, 2016, OWCP denied the claim for a recurrence of a 

medical condition. It indicated that no medical evidence had been received regarding the need 

for further medical treatment. 

OWCP thereafter received a February 2, 2016 report from Dr. H. Edward Lane, III, a 

Board-certified orthopedic surgeon, on February 19, 2016. Dr. Lane wrote that appellant had an 

existing C5-7 disc issue from 2005 to 2006 that was aggravated by required weight training for 

the employing establishment. He reported that appellant’s cervical pain had worsened as of 

December 2015 and appellant was unable to do any physical training. 

Appellant requested reconsideration on June 15, 2016. He submitted a May 25, 2016 

report from Dr. Lane. Dr. Lane reported that appellant had persistent cervical pain, as 

demonstrated by a January 15, 2016 magnetic resonance imaging scan confirming changes at the 

C5-6 and C6-7 levels. He opined that this was an ongoing issue related to appellant’s original 

work injury and he would benefit from a cervical discectomy and fusion surgery. 
3

By decision dated July 14, 2016, OWCP reviewed the merits of the claim and the 

February 2 and May 25, 2016 reports from Dr. Lane and had found that the medical evidence 

was insufficient to establish the recurrence claim. 

Appellant again requested reconsideration on November 1, 2016. In a letter of that date, 

he wrote that in the July 14, 2016 OWCP decision there was “no reference or consideration” of 

Dr. Lane’s May 25, 2016 report. Appellant argued that Dr. Lane’s report made it clear that his 

original injury had become more symptomatic over time. He resubmitted the May 25, 2016 

report from Dr. Lane. 

By decision dated November 3, 2016, OWCP declined to review the merits of the claim. 

It found that appellant had not met any of the requirements for a merit review pursuant to 5 

U.S.C. § 8128(a). 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

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.”3 20 

C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.4

ANALYSIS 

Appellant submitted a November 1, 2016 reconsideration request from a July 14, 2016 

OWCP decision denying his claim for a recurrence of a medical condition. 

Appellant did not show that OWCP had erroneously applied or interpreted a specific 

point of law, or advance a relevant legal argument not previously considered by OWCP. His 

argument on reconsideration was that OWCP had failed to consider Dr. Lane’s May 25, 2016 

report, but in the July 14, 2016 merit decision OWCP noted that it had received and reviewed 

Dr. Lane’s May 25, 2016 report. While it quoted from Dr. Lane’s February 2, 2016 report, 

OWCP also explained that there was a gap in the medical record from approximately 2010 

through 2016. It found that the medical evidence of record was insufficient to establish an 

employment-related condition as of December 2015. There is no indication that OWCP failed to 

consider the May 25, 2016 report. It is well established that the reopening of a case is not 

 2

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.”) 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
4

required where the legal contention has no reasonable color of validity.5 The Board finds that 

appellant’s argument has no reasonable color of validity in this case. 

As to the submission of evidence, appellant resubmitted the May 25, 2016 report from 

Dr. Lane. Material which is duplicative of that already contained in the case record does not 

constitute a basis for reopening a case.6 Since this report was previously of record and 

considered by OWCP, it did not constitute relevant and pertinent new evidence not previously 

considered by OWCP. 

The Board accordingly finds that appellant has not met any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence not previously considered by OWCP. OWCP 

therefore properly denied merit review in this case. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

 5 Elaine M. Borghini, 57 ECAB 549 (2006); Annette Louise, 54 ECAB 783 (2003). 

6 M.V., Docket No. 17-0132 (issued April 7, 2017). 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 3, 2016 is affirmed. 

Issued: June 22, 2017 

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