United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.F., Appellant

and

DEPARTMENT OF AGRICULTURE, 

FOREST SERVICE, Albuquerque, NM, 

Employer

__________________________________________

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Docket No. 18-0389

Issued: August 10, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 18, 2017 appellant filed a timely appeal from a June 23, 2017 nonmerit 

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

elapsed from OWCP’s last merit decision, dated April 10, 2017, 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 claim.2

 

1 5 U.S.C. § 8101 et seq.

2 The record on appeal includes evidence received after OWCP issued its June 23, 2017 decision. The Board’s 

jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

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

On February 5, 2017 appellant, then a 34-year-old snow ranger, filed a traumatic injury 

claim (Form CA-1) alleging that on February 4, 2017 he injured his left shoulder while up-righting 

his snowmobile while in the performance of his federal employment duties. The employing 

establishment did not controvert the claim. No evidence was submitted with the claim.

By development letter dated March 9, 2017, OWCP requested that appellant submit

additional factual and medical information in support of his claim. It advised him to submit a 

narrative medical report, which provided a diagnosis of his condition and rationale explaining the 

cause of the diagnosed condition. Appellant was also asked to complete a questionnaire soliciting 

additional factual information. OWCP afforded him 30 days to submit the necessary evidence.

Appellant submitted the completed development questionnaire on March 24, 2017. 

OWCP also received a report from Dr. Michael S. Sisk, a Board-certified orthopedic 

surgeon, dated March 7, 2017. In his March 7, 2017 report, Dr. Sisk indicated that appellant, a 

firefighter, presented with chronic issues regarding his left shoulder with no specific recent injury 

to the shoulder. He provided an assessment of acromioclavicular (AC) joint arthritis and possible 

rotator cuff disease of unknown extent. Dr. Sisk recommended a magnetic resonance imaging 

(MRI) scan due to the chronicity and failure to improve with activity modification and nonsteroids.

By decision dated April 10, 2017, OWCP found that the employment incident occurred as 

alleged, but denied the claim finding that the medical evidence of record was insufficient to 

establish causal relationship. It found that Dr. Sisk did not provide sufficient rationale as to how 

appellant’s diagnosed conditions were caused or aggravated by the accepted employment incident.

Appellant requested reconsideration on May 2, 2017. In an April 14, 2017 report, Dr. Sisk 

concluded that the MRI scan demonstrated AC arthritis with bursitis and impingement on the cuff 

with no cuff tear or biceps or labral disease. He recommended a Mumford procedure. 

By decision dated June 23, 2017, OWCP declined to reopen appellant’s claim for further 

consideration of the merits. It found that Dr. Sisk’s April 14, 2017 report was substantially similar 

to evidence already in the case record and previously considered. 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

 

3 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).
3

limitations in exercising its authority.4 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.5 

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.6 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.7

ANALYSIS

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

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

The underlying issue on reconsideration is medical in nature, whether the medical evidence 

establishes causal relationship between appellant’s diagnosed left shoulder condition and the 

established employment incident. 

The Board finds that appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law. Moreover, appellant did not advance a relevant legal argument not 

previously considered.8 Thus, he is not entitled to a review of the merits of his claim based on the 

first and second above-noted requirements under section 10.606(b)(3).9

The Board further finds that appellant did not submit on reconsideration relevant or 

pertinent new evidence not previously considered by OWCP. Dr. Sisk’s April 14, 2017 report

provided diagnoses pertaining to appellant’s left shoulder condition, but did not provide an opinion 

regarding the underlying issue of causal relationship. As Dr. Sisk had previously provided 

diagnoses in his March 7, 2017 report, this evidence was substantially similar to the evidence of 

record. Evidence that repeats or duplicates evidence already in the case record has no evidentiary 

value and does not constitute a basis for reopening a case under section 10.606(b)(3).

10

 The Board, 

 

4 20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

6 20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8 C.H., Docket No. 17-0074 (issued March 17, 2017).

9 S.J., Docket No. 17-1798 (issued February 23, 2018).

10 Id.; James W. Scott, 55 ECAB 606 (2004).
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therefore, finds that the April 14, 2017 report from Dr. Sisk is insufficient to warrant further merit 

review of the claim. 

As appellant’s request for reconsideration did not meet any of the three requirements 

enumerated under section 10.606(b)(3), the Board finds that OWCP properly denied the request 

for reconsideration without reopening the case for a review on the merits.11

On appeal appellant expressed his frustration with OWCP’s system and indicated that his 

claim was factually established. As previously noted, the Board does not have jurisdiction over 

the merits of the claim. 

CONCLUSION

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

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

 

11 See R.C., Docket No. 17-0595 (issued September 7, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); 

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), OWCP will deny the application for reconsideration without reopening the case for a review on the 

merits).
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ORDER

IT IS HEREBY ORDERED THAT the June 23, 2017 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: August 10, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board