United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.E., Appellant 

and 

DEPARTMENT OF COMMERCE, NATIONAL 

OCEANIC ATMOSPHERIC 

ADMINISTRATION, Seattle, WA, Employer 

__________________________________________ 

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Docket No. 15-0963 

Issued: May 18, 2017 

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 16, 2015 appellant, through counsel, filed a timely appeal from a 

September 15, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).2

 As more than 180 days elapsed from OWCP’s last merit decision on July 11, 2012 to 

 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

 Appellant, through counsel, timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of 

Procedure. 20 C.F.R. § 501.5(b). The Board denied the request in an October 9, 2015 order as his arguments could 

be adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral 

Argument, Docket No. 15-0963 (issued October 9, 2015). The Board issued a decision and order dated 

September 2, 2016. A September 29, 2016 petition for reconsideration from counsel was granted by the Board. 

Order Granting Petition for Reconsideration, Docket No. 15-0963. This decision and order on reconsideration is 

issued to correct errors in the September 2, 2016 decision. 
2

the filing of this appeal, pursuant to the Federal Employees’ Compensation 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 reconsideration of 

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

FACTUAL HISTORY 

This case has previously been before the Board.4

 The facts of the case as presented in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

In 2005, OWCP accepted that appellant, an engineer, developed an aggravation of 

chronic obstructive pulmonary disease in the performance of duty. Appellant’s pay rate has 

remained a disputed issue in his claim. 

In a July 11, 2012 decision, an OWCP hearing representative found that the effective date 

of appellant’s pay rate should be December 6, 2004, the date his disability began. The record 

indicated that he was earning $50,798.00 as a second assistant engineer on December 6, 2004. 

Appellant had represented on his initial injury claim form that he was a second engineer. The 

hearing representative found that average annual earnings should be determined under 5 U.S.C. 

§ 8114(d)(2). She also found that OWCP properly included increments for penalty pay/post 

differential, monthly leave supplement/nonwatch standing allowance, and subsistence and 

quarters. The hearing representative ultimately concluded in a decision of July 11, 2012, that 

appellant’s weekly pay rate for compensation purposes was $1,079.62. 

On August 14, 2013 the Board affirmed the hearing representative’s July 11, 2012 

decision as to appellant’s pay rate for compensation purposes.5

On July 29, 2014 OWCP received appellant’s request for reconsideration.6 Appellant 

noted that he was submitting new evidence to show that at the time disability began he was a first 

assistant engineer and had been since 2004 (sic). He argued that this was relevant because the 

employing establishment injury compensation officer had claimed that he was a second assistant 

engineer on the date disability began, and that he did not work as a first assistant engineer during 

substantially the whole year immediately preceding the date disability began. This new 

 3

 5 U.S.C. § 8101 et seq. 

4

 Docket No. 13-0522 (issued August 14, 2013). 

5 Id. 

6

 Although appellant claimed to be filing a request for reconsideration from the Board’s August 14, 2013 

decision, OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to 

the subject matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. 

§ 501.6(d). Although the August 14, 2013 Board decision was the last merit decision, the hearing representative’s 

July 11, 2012 decision is the appropriate subject of possible modification by OWCP. 
3

evidence, appellant argued, was proof that he worked as a first assistant engineer for more than 

11 straight months prior to and including the date disability began. Documentation notes: 

“The employing establishment acknowledges in their letter of April 4, 2012 that 

[appellant] was promoted to First Ass[istant] Engineer on June 29, 2003. It was a 

temporary promotion and his permanent promotion to First Ass[istant] Engineer 

became effective on June 11, 2004. [Appellant] worked continuously as a First 

Ass[istant] Engineer from June 29, 2003 until the date disability began on 

January 31, 2005.” 

Appellant submitted a copy of the April 4, 2012 letter from the manager of the employing 

establishment’s workers’ compensation program. The manager advised that appellant was a 

second assistant engineer at the time of injury and was promoted, on a temporary basis, to the 

position of first assistant engineer on June 29, 2003, two months after the injury. The manager 

argued that appellant’s weekly salary rate should be based on his pay rate as a second assistant 

engineer. 

Appellant also submitted an SF-3112B, a supervisor’s statement in connection with 

disability retirement, which indicated that the title of appellant’s position of record was first 

assistant engineer. The statement also noted that he had entered into that position on 

June 11, 2004. The statement also indicated that he had retired effective January 31, 2005. 

By decision dated September 15, 2014, OWCP denied appellant’s reconsideration 

request. It found that the evidence submitted was cumulative and thus substantially similar to 

evidence or documentation that was already contained in the case file and was thus previously 

considered. 

On appeal appellant argues that his pay rate should be based on his total gross earnings a 

year prior to the date disability began, not based on the earnings of a hypothetical second 

assistant engineer under 5 U.S.C. § 8114(d)(2). He argues that the new evidence he submitted is 

relevant and proves that he was a first assistant engineer on December 6, 2004. 

The Board issued a decision dated September 2, 2016.7

 Following a petition for 

reconsideration filed by counsel on September 29, 2016, the Board has issued this decision and 

order on reconsideration. 

LEGAL PRECEDENT 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or upon application.8

 An employee (or representative) seeking reconsideration 

should send the request for reconsideration to the address as instructed by OWCP in the final 

decision. The request for reconsideration, including all supporting documents, must be in 

writing and must set forth arguments and contain evidence that either: (1) shows that OWCP 

 7 Supra note 4. 

8

 5 U.S.C. § 8128(a). 
4

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 evidence not 

previously considered by OWCP.9

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.10 The one-year period begins on the date of the 

original decision. However, a right to reconsideration within one year accompanies any 

subsequent merit decision on the issues. This includes any hearing or review of the written 

record decision, any denial of modification following reconsideration, any merit decision by the 

Board, and any merit decision following action by the Board, but does not include 

prerecoupment hearing decisions.11

A timely request for reconsideration may be granted if OWCP determines that the 

employee has presented evidence or argument that meets at least one of the three standards. If 

reconsideration is granted, the case is reopened and is reviewed on its merits. Where the request 

is timely, but fails to meet at least one of these standards, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.12

ANALYSIS 

OWCP received appellant’s reconsideration request on July 29, 2014, within one 

calendar year of the Board’s August 14, 2013 merit decision. The request is therefore timely. 

The issue on appeal is whether appellant has met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). 

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. 

Counsel’s argument was that he was submitting new evidence with respect to appellant’s rate of 

pay. For the reasons discussed below, the Board finds that appellant did not submit relevant and 

pertinent evidence not previously considered by OWCP. 

The April 4, 2012 correspondence from the manager of the employing establishment’s 

workers’ compensation program is not new evidence. OWCP previously received this evidence 

on April 9, 2012 in connection with appellant’s hearing request. The hearing representative 

noted this evidence in her July 11, 2012 decision. Evidence that repeats or duplicates evidence 

already of record has no evidentiary value and constitutes no basis for reopening a case.13 

 9

 20 C.F.R. § 10.606(b). 

10 Id. at § 10.607(a). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b(1) (January 2004). 

(Emphasis deleted.) 

12 20 C.F.R. § 10.608. 

13 Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984). 
5

Accordingly, the Board finds that this evidence does not meet the third standard for obtaining a 

merit review of appellant’s claim. 

The August 15, 2005 SF-3112B, supervisor’s statement in connection with disability 

retirement, is also not new evidence. OWCP previously received this evidence on August 30, 

2005, together with appellant’s IRS Form W-2 wage and tax statements. It later received this 

same evidence on March 28, 2007. As before, evidence that repeats or duplicates evidence 

already of record has no evidentiary value and does not constitute a basis for reopening 

appellant’s claim. Accordingly, the Board finds that this evidence does not meet the third 

standard for obtaining a merit review of his claim. 

The Board 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 evidence not previously considered by OWCP. The Board accordingly 

finds that OWCP properly denied merit review in this case. 

Counsel argues on appeal that the evidence he submitted is new and relevant and 

therefore entitles him to a merit review. However, as explained above, the evidence is not new. 

Because the evidence repeats or duplicates evidence already in the record, it provides no basis 

for reopening his case. For the reasons discussed above, the Board finds that appellant did not 

meet any of the requirements of 20 C.F.R. § 10.606(b). 

CONCLUSION 

The Board finds that OWCP properly denied merit review of appellant’s claim pursuant 

to 5 U.S.C. § 8128(a). 
6

ORDER 

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

Compensation Programs dated September 15, 2014 is affirmed. 

Issued: May 18, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board