United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Long Branch, NJ, Employer 

__________________________________________ 

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Docket No. 14-1266 

Issued: November 10, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 13, 2014 appellant filed a timely appeal from a February 5, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for 

further merit review. The last merit decision was issued on December 11, 2013. As more than 

180 days elapsed since that date and the filing of this appeal on May 13, 2014 and 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 further merit review 

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

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated December 11, 2013, 

the Board affirmed OWCP’s January 15, 2013 merit decision which found appellant had not met 

 1

 5 U.S.C. § 8101 et seq. 
2

his burden of proof to establish entitlement to a schedule award for permanent impairment.2

 The 

law and facts of the previous Board decision are incorporated herein by reference. 

In a January 6, 2014 letter, received by OWCP January 28, 2014, appellant requested 

reconsideration. He asserted that the reports of Dr. Gerard M. Gerling, a Board-certified 

neurologist and second opinion examiner, were insufficient to carry the weight of the medical 

evidence as he was unaware of several conditions appellant had suffered in the January 22, 1998 

work-related accident and had mixed up appellant’s diagnoses. Appellant also asserted that 

Dr. Gerling failed to report important examination findings and diagnoses as well as 

electromyography reports. 

In support of his reconsideration request, appellant submitted additional evidence. 

OWCP received follow-up reports from Dr. Omar Quiles, a Board-certified physiatrist, dated 

October 31, 2013, and Dr. Padmaja R. Yatham, an anesthesiologist, dated June 6, July 18, 

August 15, October 3 and December 5, 2013 and January 16, 2014, which provided impressions 

of cervicalgia, cervical degenerative disc disease, cervical facet joint arthritis and cervical 

radiculitis. In the July 18, 2013 report, Dr. Yatham noted that appellant had a work-related 

injury and “all the cervical pain was related to the work injury and his magnetic resonance 

imaging (MRI) scan showed cervical disc herniation after the work [injury] in 2009 and 

appellant states he has spondylosis and spinal stenosis.” He noted that OWCP approved facet 

joint injections in the past, but was no longer approving them. 

By decision dated February 5, 2014, OWCP denied reconsideration without reviewing 

the merits of the case. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

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.4

 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.5

 When a claimant fails to 

 2

 Docket No. 13-1323 (issued December 11, 2013). On January 22, 1998 appellant, then a 54-year-old postal 

worker, was involved in a work-related automobile accident while stopped at a traffic light. OWCP accepted his 

claim for a neck strain and sprains of the shoulder and upper arm, acromioclavicular, bilateral. Appellant did not 

stop work but was prescribed work restrictions for light-duty work effective January 23, 1998. Appellant’s 

concurrent or preexisting conditions include cervical degenerative disc disease, lumbar herniated disc, right ankle 

arthroscopy with synovectomy in 2003; history of right foot fifth metatarsal fracture; and a history of high blood 

pressure, asthma and diabetes. He was also involved in a nonemployment-related automobile accident on 

August 9, 1998. 

3

 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). 

4

 20 C.F.R. § 10.606(b)(2). 

5 Id. at § 10.607(a). 
3

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.6 

ANALYSIS 

The underlying issue on reconsideration is whether appellant has submitted sufficient 

evidence relevant to the issue of whether he sustained any permanent impairment as a result of 

his January 22, 1998 work injury warranting a schedule award. Appellant’s January 6, 2014 

request for reconsideration neither alleged nor demonstrated that OWCP erroneously applied or 

interpreted a specific point of law. While he contended that the reports of Dr. Gerling, a Boardcertified neurologist and second opinion examiner, were insufficient to carry the weight of the 

medical evidence, appellant had previously raised this argument and the Board affirmed in its 

December 11, 2013 decision that OWCP properly relied upon the reports of Dr. Gerling to deny 

appellant’s schedule award claim. The Board specifically found that Dr. Gerling reviewed the 

medical evidence and statement of accepted facts and provided examination findings and 

reasoning for his conclusion that appellant’s accepted conditions had resolved. Appellant has not 

raised any new arguments which were not previously addressed. Consequently, he was not 

entitled to a review of the merits based on the first and second above-noted requirements under 

20 C.F.R. § 10.606(b)(2). 

The Board also finds that appellant did not provide any relevant or pertinent new 

evidence warranting the reopening of the case on the merits. The October 31, 2013 medical 

report from Dr. Quiles and the June 6, July 18, August 15, October 3 and December 5, 2013 and 

January 16, 2014 reports from Dr. Yatham provide impressions of cervicalgia, cervical 

degenerative disc disease, cervical facet joint arthritis and cervical radiculitis. These reports, 

while new to the claim, are not relevant to the issue of whether appellant sustained permanent 

impairment as a result of his work injury. None of the reports provided a well-rationalized 

opinion as to how his current conditions caused any impairment related to the accepted work 

injury. It is appellant’s burden to prove that the condition for which a schedule award is sought 

is causally related to his employment.7

 He must establish that impairment to a scheduled 

member was caused by the accepted injury before impairment can be assessed.8 Thus, these 

medical reports are insufficient to reopen appellant’s claim for further merit review.9

 

The Board finds that appellant did not show that OWCP erroneously interpreted a 

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

relevant and pertinent new evidence not previously considered by OWCP. Appellant did not 

 6 Id. at § 10.608(b). 

7 Veronica Williams, 56 ECAB 367 (2005). 

8 See generally Thomas P. Lavin, 57 ECAB 353 (2006). 

9

 OWCP properly noted that appellant’s file remained open for medical treatment of the accepted diagnoses for 

right shoulder strain, cervical strain and thoracic strain and that the new evidence relates to his current medical 

treatment. 
4

meet any of the regulatory requirements and OWCP properly declined to reopen his claim for 

further merit review.10 

On appeal, appellant reiterates his contention that Dr. Gerling’s reports were insufficient 

to carry the weight of the medical evidence. As noted, this argument was previously raised and 

addressed. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 5 

U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the February 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 10, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the 

case for a review on the merits).