United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Charleston, WV, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 13-2158 

Issued: March 7, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 23, 2013 appellant filed a timely appeal from an August 12, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for 

further merit review. As more than 180 days elapsed from the last merit decision of August 2, 

2012 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 this claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

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

FACTUAL HISTORY 

On December 6, 2011 appellant, then a 47-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that his back condition was caused or aggravated by factors 

 1

 5 U.S.C. § 8101 et seq. 
2

of his employment which included constant lifting, bending, stooping and other carrier duties. 

He indicated that he became aware of his condition on November 1, 2003 and realized it was 

caused or aggravated by factors of his employment on November 20, 2011. Appellant submitted 

a December 6, 2011 statement describing his employment duties, a copy of his position 

description, a December 6, 2011 report from Dr. Jonathan Carmouche, a Board-certified 

orthopedic surgeon, and x-ray results dated December 6, 2011. 

By letter dated February 3, 2012, OWCP advised appellant of the deficiencies in the 

evidence and requested that he submit a medical report which contained a physician’s wellrationalized opinion supported by objective evidence as to how his employment activities 

caused, contributed to or aggravated any diagnosed condition(s). 

Appellant submitted additional medical reports which included a January 5, 2012 report 

from Dr. Murray E. Joiner, a Board-certified physiatrist, January 13, 2012 electromylogram and 

nerve conduction velocity studies and fluoroscopic procedure reports dated January 12 

and 26, 2012. 

By decision dated April 9, 2012, OWCP denied the claim on the grounds that the medical 

evidence did not establish that appellant sustained an injury that was causally related to his 

employment duties. 

On May 7, 2012 appellant requested a review of the written record before an OWCP 

hearing representative. In a May 8, 2012 statement, he described his employment injuries 

sustained and alleged that those accidents also worsened his condition. Appellant noted that his 

doctor had placed him on light duty. However, the employing establishment did not put him on 

light duty but, instead, issued a letter of removal. No additional evidence was submitted. 

On June 7, 2012 OWCP provided a copy of appellant’s May 8, 2012 statement to the 

employing establishment and requested comments or a response within 20 days. However, no 

response was received from the employing establishment. 

By decision dated August 2, 2012, an OWCP hearing representative affirmed the April 9, 

2012 denial of appellant’s claim. 

In a September 27, 2012 letter, appellant requested reconsideration. He advised that he 

was forwarding copies of two doctor reports which he believed should satisfy the requirement for 

causal relationship between his position as a city mail carrier and his injury. However, no 

medical evidence was received. 

By decision dated August 12, 2013, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of the case. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP’s 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 

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

pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.4

 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.5

 

ANALYSIS 

OWCP denied appellant’s claim as it found that the medical evidence did not establish 

that appellant sustained a medical condition causally related to the accepted factors of his federal 

employment. On appeal, appellant asserts his belief that his entire medical record was not 

considered and makes various arguments that address the merits of his case. However, the last 

merit decision in this case was issued on August 2, 2012 at which time OWCP determined that 

none of the medical reports of record were sufficient to meet his burden of proof in establishing 

that his medical conditions are causally related to specific factors of his employment. As 

previously stated, this decision was issued over 180 days prior to the filing of this appeal and, 

accordingly, the Board does not have jurisdiction to review the merits of the case.6 The only 

issue before the Board is whether OWCP properly denied appellant’s reconsideration request. 

In his letter requesting reconsideration, appellant did not allege or show that OWCP 

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

previously considered. Consequently, he was not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(2). 

In support of his reconsideration request, appellant alleged that he was submitting 

additional documentation from physicians which support causal relationship. However, he did 

not identify the physicians, or the date of the reports and no additional evidence was submitted 

into the record. Thus, appellant did not submit relevant and pertinent new evidence not 

previously considered by OWCP and is not entitled to a review of the merits based on the third 

requirement under 20 C.F.R. § 10.606(b)(2). 

 2

 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). 

3

 20 C.F.R. § 10.606(b)(2). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 

6 Id. at § 501.3(e). 
4

Because appellant did not show that OWCP erroneously interpreted a specific point of 

law, advance a relevant legal argument not previously considered or submit relevant and 

pertinent new evidence not previously considered by OWCP, it did not abuse its discretion in 

denying appellant’s request for reconsideration.7

 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 5 

U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the August 12, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 7, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7

 Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first time 

on appeal. 20 C.F.R. § 501.2(c).