United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.N., Appellant 

and 

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, Norfolk, VA, Employer 

__________________________________________ 

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Docket No. 16-0607 

Issued: August 5, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 February 10, 2016 appellant, through counsel, filed a timely appeal from a 

November 4, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed since the last merit decision dated October 24, 2014, 

to the filing of the appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case. 

 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

 5 U.S.C. § 8101 et seq. 
2 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

FACTUAL HISTORY 

On July 28, 2014 appellant, a 57-year-old junior engineer, filed a traumatic injury claim 

(Form CA-1), alleging that he injured a left knee on July 27, 2014 due to a twisting injury 

sustained in a cargo pump room while in the performance of duty. He stopped work on 

July 28, 2014. 

A July 28, 2014 chronological record of medical care was submitted indicating that 

appellant presented with a left knee twisting injury. It noted that appellant was “standing an 

engineering watch” the night before on July 27, 2014 when he was “stepping down one step onto 

a step down bar in [a] cargo pump room and twisted his left knee.” Appellant heard a pop and 

cracking sound and felt immediate pain. He was able to complete his watch until 11:30 p.m., 

went to his room, and iced his knee. Appellant claimed that his edema and pain did not subside 

and his knee stiffened up through the night causing more discomfort. He stated that his knee 

locked once and cracked with movement. 

An August 6, 2014 x-ray of the left knee demonstrated moderate joint effusion and 

osteoarthritis. There was no evidence of fracture or dislocation. 

In a September 2, 2014 attending physician’s report (Form CA-20), Dr. Dirk Proffer, a 

Board-certified orthopedic surgeon, advised that appellant reinjured his left knee on July 27, 

2014 following an original injury and surgery in 1990. He diagnosed end-stage degenerative 

joint disease and patellar instability of the left knee and recommended a total left knee 

replacement. 

In a September 2, 2014 report, Dr. Proffer advised that appellant complained of a twisting 

injury two months earlier. He noted that appellant related that it was a workers’ compensation 

injury that occurred as he was transitioning from one platform to another while working onboard 

a ship at sea. Dr. Proffer assessed degenerative joint disease of the left knee and left patellar 

instability. He noted that appellant had a prior left knee injury in the 1990’s and recommended a 

total knee replacement. 

In a September 2, 2014 diagnostic report, Dr. Proffer advised that a left knee x-ray 

revealed end-stage arthritis of the left knee with tricompartmental disease. 

By letter dated September 22, 2014, OWCP notified appellant of the type of evidence 

needed to establish his claim. Appellant was also instructed to complete and return a 

questionnaire establishing the factual element of his claim. He was afforded 30 days from the 

date of the letter to submit responsive evidence. 

An August 6, 2014 emergency department report cosigned by Dr. Stewart Martin, Boardcertified in emergency medicine, advised that appellant complained of left leg pain. He assessed 

knee pain and osteoarthritis and noted that appellant had no history of injury to his leg. A left 
3 

knee x-ray revealed moderate joint effusion and osteoarthritis with no definite fracture or 

dislocation visualized. 

By decision dated October 24, 2014, OWCP denied the claim as appellant failed to 

establish fact of injury. It found that the evidence was insufficient to establish that the alleged 

work events and injuries occurred as alleged and noted that appellant failed to provide any 

statement or explanation as to the mechanism of the injury. 

Appellant, through counsel, requested reconsideration and resubmitted several reports. In 

a September 2, 2014 report, Dr. Proffer advised that appellant was not fit for sea duty. He 

diagnosed left knee pain, swelling, and meniscus tear versus internal derangement. Dr. Proffer 

found that diagnostic testing revealed arthritic changes on the left knee and recommended a total 

left knee replacement. 

A November 7, 2014 hospital discharge summary was also submitted. It indicated that 

appellant was status post hospital stay for elective knee surgery due to osteoarthritis and patellar 

instability for the period October 27 to 30, 2014. 

By decision dated January 12, 2015, OWCP denied appellant’s request for 

reconsideration without a merit review finding that he did not submit relevant and pertinent new 

evidence and did not show that OWCP erroneously applied or interpreted a point of law not 

previously considered by OWCP. 

On September 14, 2015 appellant, through his attorney, requested reconsideration. He 

resubmitted several reports to OWCP including the July 28, 2014 chronological record of 

medical care, the August 6, 2014 emergency department report, Dr. Proffer’s September 2, 2014 

report, and his September 2, 2014 attending physician’s report. 

By decision dated November 4, 2015, OWCP denied appellant’s request for 

reconsideration without a merit review finding that he did not submit relevant and pertinent new 

evidence and did not show that OWCP erroneously applied or interpreted a point of law not 

previously considered by OWCP. 

LEGAL PRECEDENT 

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

a matter of right; it vests OWCP with discretionary authority to determine whether it will review 

an award for or against compensation.3

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).4

 

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

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 

 3

 5 U.S.C. § 8101 et seq. 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 See Annette Louise, 54 ECAB 783, 789-90 (2003). 
4 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.6

 When a claimant fails to meet one of 

the above standards, OWCP will deny the application for reconsideration without reopening the 

case for review on the merits.7

 

ANALYSIS 

In an October 24, 2014 merit decision, OWCP denied appellant’s claim finding that 

factual evidence of record was insufficient to establish that the injury and/or event occurred as 

alleged. Appellant submitted a timely request for reconsideration which was denied on 

January 12, 2015 without a merit review. He again submitted a timely request for 

reconsideration on September 14, 2015 which was denied without a merit review on 

November 4, 2015. 

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

without further merit review. In support of his September 14, 2015 reconsideration request, 

appellant resubmitted several reports to OWCP including the July 28, 2014 chronological record 

of medical care, the August 6, 2014 emergency department report, Dr. Proffer’s September 2, 

2014 report, and his September 2, 2014 attending physician’s report. However, 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

 Furthermore, the evidence submitted in support 

of reconsideration is not relevant to the underlying issue in the claim. In its October 24, 2014 

decision, OWCP denied appellant’s claim finding that the evidence of record was insufficient to 

establish that the event/injury occurred as alleged. This is a factual issue for which appellant has 

failed to provide any relevant and pertinent new evidence in support of his claim. 

Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a 

specific point of law nor advanced a relevant legal argument not previously considered by 

OWCP. Because he failed to meet one of the standards enumerated under section 8128(a) of 

FECA, he was not entitled to further merit review of his claim. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

reconsideration of the merits, pursuant to 5 U.S.C. § 8128(a). 

 5

 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009). 

6

 20 C.F.R. § 10.607(a). 

7 Id. at § 10.608(b). 

8 J.P., 58 ECAB 289 (2007). 
5 

ORDER 

IT IS HEREBY ORDERED THAT the November 4, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 5, 2016 

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