United States Department of Labor

Employees’ Compensation Appeals Board

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C.B., Appellant

and

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, Bayonne, NJ, Employer

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Docket No. 18-0322

Issued: July 17, 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 4, 2017 appellant filed a timely appeal from an October 13, 2017 nonmerit 

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

elapsed from OWCP’s most recent merit decision dated December 1, 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 the case.

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). 

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts of the case as presented in the 

prior Board decisions are incorporated herein by reference. The relevant facts are as follows. 

Appellant, then a 33-year-old ordinary seaman, filed a traumatic injury claim (Form CA1) on January 4, 1996, alleging that he was injured, while in the performance of duty, when a light 

fixture struck him on the head on January 3, 1996. He stopped work that day and received 

continuation of pay from January 4 to February 17, 1996. OWCP accepted the claim for 

concussion and compression injury to the neck. Appellant received FECA wage-loss 

compensation from February 18, 1996 to August 16, 1997.

By December 15, 1999 decision, the Board affirmed a November 2, 1998 OWCP decision,

which found that appellant had no disability after September 10, 1997 causally related to his 

accepted January 3, 1996 employment injury.

By decision dated September 7, 2000, OWCP expanded acceptance of the claim to include 

the additional conditions of chronic cervical strain, postconcussion syndrome, and left eye visual 

loss. Appellant again received wage-loss compensation on the periodic rolls, retroactive to 

September 10, 1997. By decision dated January 11, 2001, OWCP granted appellant a schedule 

award for 34 percent loss of use of the left eye.3 Upon expiration of the schedule award, it returned 

him to the periodic compensation rolls.

OWCP continued to develop the claim and, in October 2011, referred appellant to

Dr. Henry J. Comiter, a Board-certified neurologist, for a second opinion evaluation. Based on

Dr. Comiter’s November 10, 2011 and January 10, 2013 reports, by decision dated June 5, 2013,

OWCP terminated appellant’s wage-loss compensation and medical benefits. The termination was 

affirmed by an OWCP hearing representative on February 10, 2014. In merit decisions dated 

April 9, 2015 and February 1, 2016, OWCP denied modification of the prior decisions. 

Appellant, through counsel, requested reconsideration on October 13, 2016. He submitted 

a two-page letter/pleading and an additional medical report. In a merit decision dated December 1, 

2016, OWCP denied modification of its prior decisions.4

On October 6, 2017 appellant requested reconsideration and submitted a statement that was 

largely identical to his October 13, 2016 reconsideration request, but with references to his former 

counsel removed. 

 

2 Docket No. 99-0784 (issued December 15, 1999); Docket No. 05-0307 (issued June 9, 2005).

3

In an August 25, 2004 decision, OWCP found that appellant had received an overpayment of compensation in the 

amount of $8,914.11 for the period July 25, 1999 to April 15, 2004 because he had received compensation at the 

augmented compensation rate when he furnished no financial support for his minor child. Appellant was found at 

fault in the creation of the overpayment and his compensation was reduced to the basic compensation rate. By decision 

dated June 9, 2005, the Board affirmed the overpayment finding. Docket No. 05-0307 (issued June 9, 2005). 

4 At that time appellant was represented by the Webster Law Group. It withdrew representation on 

December 9, 2016. 
3

By nonmerit decision dated October 13, 2017, OWCP denied appellant’s October 6, 2017 

request for reconsideration. It found that appellant’s statement submitted on reconsideration was 

insufficient to warrant merit review.

LEGAL PRECEDENT

Under section 8128(a) of FECA,5 OWCP has the discretion to reopen a case for review on 

the merits. It must exercise this discretion in accordance with the guidelines set forth in section 

10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain 

review of the merits of his or her written application for reconsideration, including all supporting 

documents, sets forth arguments and contain evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(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

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP 

without review of the merits of the claim.7

ANALYSIS

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

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

With his October 6, 2017 reconsideration request, appellant submitted a statement which 

is a word-for-word copy of his October 13, 2016 request for reconsideration, but with all references 

to his former counsel removed. The October 13, 2016 reconsideration request was previously 

reviewed by OWCP in its December 1, 2016 merit decision.

Evidence or argument that repeats or duplicates evidence previously of record has no 

evidentiary value and does not constitute a basis for reopening a case.8 As the document submitted 

on reconsideration had previously been reviewed by OWCP, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not 

 

5 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(b).

8

J.M., Docket No. 17-1950 (issued April 2, 2018); S.J., Docket No. 08-2048 (issued July 9, 2009).
4

previously considered by OWCP. Consequently, he was not entitled to a review of the merits of 

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

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted no additional medical evidence with his October 6, 2017 reconsideration request. 

As appellant’s October 6, 2017 reconsideration request did not set forth argument or 

contain evidence which shows that OWCP erred in applying a point of law, advances a relevant 

legal argument not previously considered, or constitutes relevant and pertinent new evidence not 

previously considered by OWCP, the Board finds that OWCP properly denied further merit 

review.

10

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).

ORDER

IT IS HEREBY ORDERED THAT the October 13, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 17, 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

 

9 20 C.F.R. § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

10 M.A., Docket No. 16-1846 (issued October 20, 2017).