United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

GOVERNMENT PRINTING OFFICE, 

Washington, DC, Employer

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Docket No. 17-0867

Issued: October 24, 2017

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 10, 2017 appellant, through counsel, filed a timely appeal from a 

September 12, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days have elapsed from the last merit decision of OWCP dated 

September 14, 2015, to the filing of this appeal, pursuant to the Federal Employees’

 

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

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to 

review the merits of this case.3

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).

On appeal counsel asserts that appellant’s claims for a recurrence of disability and 

schedule award were improperly denied.

FACTUAL HISTORY

OWCP accepted that on June 8, 2012 appellant, then a 44-year-old fork/clamp truck 

operator, sustained left ankle ligament instability when he slipped and rolled his left ankle on 

fluid on the floor at work. He stopped work on the date of injury and returned to regular-duty 

work on October 2, 2012.

On August 12, 2013 OWCP granted appellant a claim for a schedule award (Form CA-7) 

for 11 percent permanent impairment of the left lower extremity based on a July 10, 2013 

medical opinion of an attending physician, Dr. Kevin E. McGovern, a Board-certified orthopedic 

surgeon and an OWCP district medical adviser (DMA). The period of the award ran from 

February 18 to September 27, 2013.

In a September 10, 2013 letter postmarked September 12, 2013 and received on

September 18, 2013, appellant requested a telephone hearing with an OWCP hearing 

representative. In an October 30, 2013 decision, OWCP denied appellant’s request for a hearing 

because it was not timely filed within 30 days of its August 12, 2013 decision. It also exercised 

its discretion and determined that the issue in the case could equally well be addressed through 

the reconsideration process.

On November 15, 2013 appellant filed a recurrence of disability claim (Form CA-2a) 

commencing on October 29, 2013, which was causally related to his accepted June 8, 2012 

employment-related injury. OWCP, in a January 6, 2014 decision, denied appellant’s recurrence 

claim, finding that the evidence of record was insufficient to establish that he was disabled due to 

a material worsening of his accepted work-related condition.

In an undated letter, received by OWCP on March 6, 2014, appellant requested

reconsideration of the January 6, 2014 recurrence decision. He claimed that he sustained a new 

 

2

5 U.S.C. § 8101 et seq.

3 Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules 

of Procedure, 20 C.F.R. § 501.5(b). By order dated July 25, 2017, the Board exercised its discretion and denied the 

request, finding that the arguments presented on appeal could adequately be addressed based on review of the case 

record. Order Denying Oral Argument, Docket No. 17-0867 (issued July 25, 2017). The Board’s Rules of 

Procedure provide that any appeal in which a request for oral argument is not granted by the Board will proceed to a 

decision based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b).
3

left lower limb injury due to the accepted June 8, 2012 work injury. Appellant also requested 

that his claim be expanded to include the acceptance of right hip and leg, and lower back 

injuries. 

In support of his reconsideration request, appellant submitted an occupational disease 

claim (Form CA-2) alleging that he sustained thoracic lumbosacral neuritis and radiculitis, 

displacement of intervertebral disc without myelopathy, contusion of the left foot, lumbosacral 

joint sprain, enthesopathy of the right hip, and post-traumatic neuritis of the left foot as a result 

of the June 8, 2012 employment incident. He alleged that he first became aware of these 

conditions and their relationship to his employment on October 28, 2013. 

On April 2, 2014 appellant requested reconsideration of the August 12, 2013 schedule 

award decision.

In a May 15, 2014 decision, OWCP denied modification of the January 6, 2014 

recurrence decision. It found that the medical evidence appellant submitted addressed his back 

condition which was not accepted as work related and, thus, he did not have a recurrence of 

disability causally related to his accepted June 8, 2012 work injury. On May 28, 2014 appellant 

requested reconsideration of this decision. OWCP, in a June 3, 2014 decision, denied 

reconsideration, finding that appellant did not raise substantive legal questions or include new

and relevant evidence sufficient for further merit review.

In a June 11, 2014 decision, OWCP denied modification of the August 12, 2013 schedule 

award decision, finding the DMA’s opinion continued to carry the weight of the medical 

evidence. On June 23, 2014 appellant requested reconsideration.

OWCP received additional medical evidence, which included a medical report dated 

July 21, 2014 and a progress note dated October 29, 2014 from Dr. Eric L. Weisbrot, a family 

practitioner. Dr. Weisbrot noted his history of injury which included the June 8, 2012 

employment injury, but indicated that the date of injury was June 6, 2012, and a 

September 27, 2014 fall at home. He examined appellant and diagnosed chronic causalgia of the 

lower limb, chronic displacement of a lumbar intervertebral disc without myelopathy, and 

chronic sprain and strain of unspecified site of the left ankle. In the October 29, 2014 progress 

note, Dr. Weisbrot advised that appellant was unable to work from October 28, 2014 through 

January 14, 2015. In the July 21, 2014 report, he opined that the diagnosed conditions were 

causally related to the June 6, 2012 accident. Dr. Weisbrot noted that appellant had been off 

work since October 28, 2013 and that he could engage in activity as tolerated. On October 31,

2014 OWCP received a February 26, 2014 report from Dr. Gary Pushkin, a Board-certified 

orthopedic surgeon who reported that appellant had no permanent impairment of his left leg.

In a November 20, 2014 decision, OWCP denied modification of its prior schedule award 

decision as the evidence presented was insufficient to establish that appellant had more than 11 

percent permanent impairment of the left leg. It also found that, based on Dr. Pushkin’s report, 

further development of the medical evidence was required as that physician reported that 

appellant had no impairment of the left lower extremity.
4

OWCP, in January 16 and March 10, 2015 decisions, denied modification of its prior 

recurrence decisions as the medical evidence was insufficient to establish that appellant sustained 

a recurrence of disability on October 29, 2013 or a back condition causally related to his 

accepted left ankle condition.

On January 22, 2015 OWCP notified appellant that a second opinion medical 

examination had been scheduled in his claim.

After further development of the medical evidence on the extent of appellant’s left leg

impairment, OWCP, in a March 19, 2015 letter, informed appellant that it had rescinded its

November 20, 2014 decision. It issued a decision on March 19, 2015, finding that the medical 

evidence was sufficient to establish that appellant had no more than 11 percent permanent 

impairment of the left lower extremity based on the second opinion report of Dr. Robert A. 

Smith, a Board-certified orthopedic surgeon and an OWCP referral physician.

In a June 26, 2015 letter received on June 30, 2015, appellant requested reconsideration 

of the March 19, 2015 schedule award decision. In a June 28, 2015 letter also received on 

June 30, 2015, he requested reconsideration of the March 10, 2015 recurrence decision.

OWCP, in a September 14, 2015 decision, denied modification of its March 10, 2015 

recurrence decision. It again found that the medical evidence submitted by appellant was 

insufficient to establish that he sustained a back condition causally related to the accepted June 8, 

2012 employment injury.

In a separate September 14, 2015 decision, OWCP denied modification of its March 19, 

2015 schedule award decision. It found that the medical evidence submitted by appellant was 

insufficient to outweigh the opinions of the DMA and Dr. Smith.

On February 11, 2016 appellant requested reconsideration, a review of the written record, 

before an OWCP hearing representative, a decision with appeal rights concerning his 

occupational disease claim filed on October 28, 2013, and an amended schedule award. He 

contended that he sustained additional injuries for which he filed the October 28, 2013 Form CA2 and which resulted in greater permanent impairment and not a recurrence of disability as 

adjudicated by OWCP.

In a May 11, 2016 decision, OWCP denied appellant’s request for reconsideration of the 

merits of his claim. It found that it was not clear which September 14, 2015 decision he was 

appealing.

OWCP received a May 19, 2016 progress note in which Dr. Weisbrot examined appellant 

and again diagnosed chronic causalgia of the lower limb, chronic displacement of a lumbar 

intervertebral disc without myelopathy, and chronic sprain and strain of unspecified site of the 

left ankle.

In a June 13, 2016 letter received on June 14, 2016, appellant requested reconsideration

of the May 11, 2016 decision. He again requested a formal decision regarding his October 28, 

2013 Form CA-2 claim. Appellant asserted that OWCP either had abused its discretion by

continuously denying his claim as a recurrence claim or erred in not assigning a file number to 
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his Form CA-2 claim. He contended that the medical evidence of record was sufficient to 

establish his claim. OWCP also received duplicate copies of Dr. Weisbrot’s July 21, 2014 report 

and October 29, 2014 progress note.

By decision dated September 12, 2016, OWCP denied further merit review of appellant’s 

claim. It found that his request for reconsideration neither raised substantive legal questions nor 

included new and relevant evidence. 

LEGAL PRECEDENT

Section 8128 of FECA vests OWCP with a discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.4 Section 10.608(b) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).5 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain 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.6 Section 10.608(b) provides that when a request for 

reconsideration is timely but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.7

ANALYSIS

OWCP issued an August 12, 2013 merit decision granting appellant a schedule award for 

11 percent permanent impairment of the left lower extremity due to his accepted June 8, 2012 

employment-related left ankle ligament instability condition. In a January 6, 2014 decision, it

denied his claim for a recurrence of disability commencing on October 29, 2013 due to the 

accepted work injury. Subsequently, OWCP issued a series of decisions, denying modification 

of both decisions. It rescinded its November 20, 2014 decision, denying modification of its 

schedule award decision for further development of the medical evidence. In a March 19, 2015 

decision, OWCP found that the weight of the medical evidence established that appellant had no 

more than 11 percent permanent impairment of the left leg. By decision dated September 14, 

2015, it denied modification of this decision. In a separate decision also dated September 14, 

2015, OWCP denied modification of its recurrence decision. On May 11, 2016 it denied 

appellant’s request for a merit review of his claim as it was not clear which September 14, 2015 

decision he was appealing. On June 14, 2016 appellant requested reconsideration. OWCP 

declined his request for reconsideration in a September 12, 2016 nonmerit decision.

 

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(b).
6

The Board does not have jurisdiction over OWCP’s merit decisions and can consider 

only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which would 

prompt OWCP to reopen the case for merit review. The underlying issues on reconsideration are

medical in nature, whether appellant met his burden of proof to establish that he had more than 

11 percent permanent impairment of the left lower extremity, for which he previously received a 

schedule award, and whether he sustained a recurrence of disability commencing October 29, 

2013 due to his accepted work condition.

The Board finds that in his June 14, 2016 request for reconsideration, appellant did not 

show that OWCP erroneously applied or interpreted a specific point of law, or advance a new 

and relevant legal argument not previously considered. He reiterated his contention that OWCP 

should adjudicate his October 28, 2013 Form CA-2 claim as he sustained a new injury due to the 

accepted June 8, 2012 employment injury and not a recurrence of disability. 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 Therefore, appellant’s contentions are 

insufficient to warrant further merit review of his claim.

The Board further finds that appellant did not submit relevant or pertinent new evidence 

not previously considered. Appellant resubmitted copies of Dr. Weisbrot’s July 21, 2014 report 

and October 29, 2014 progress note. As noted, 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.9 The Board finds, therefore, that the evidence submitted by appellant is 

insufficient to reopen his claim for a merit review.

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10

On appeal counsel argues the merits of appellant’s claim and asserts that his claims for a 

recurrence of disability and schedule award were improperly denied. The Board, as noted above, 

only has jurisdiction over OWCP’s September 12, 2016 nonmerit decision which denied 

appellant’s request for reconsideration and, therefore, is precluded from conducting a merit 

review.

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in increased permanent impairment.

 

8 D.K., 59 ECAB 141 (2007).

9

Id.

10 See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,

Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); 

(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).
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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 September 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 24, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board