United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Baltimore, MD, Employer 

__________________________________________ 

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Docket No. 14-1911 

Issued: February 3, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 29, 2014 appellant filed a timely appeal of a June 16, 2014 nonmerit decision 

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

from the issuance of the most recent merit decision of December 11, 2013, to the filing of this 

appeal and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.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). 

On appeal, appellant submitted an updated magnetic resonance imaging (MRI) scan of 

the lumbar spine. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the June 16, 2014 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

final decision. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On September 5, 2013 appellant, then a 50-year-old distribution window clerk, filed an 

occupational disease claim (Form CA-2) alleging aggravation of preexisting neck and back 

conditions due to factors of her federal employment, including constant lifting. 

In reports dated January 31 through April 11, 2013 Dr. Mohammad Rana, a Boardcertified neurologist, diagnosed moderate multilevel degenerative disc disease of the neck and 

spine and indicated that appellant’s pain symptoms got worse at work while lifting and pushing. 

On October 19, 2012 Dr. Manish Rai, a Board-certified internist, diagnosed low back 

pain without radiculopathy and lumbosacral disc degeneration. 

In an October 10, 2013 letter, OWCP notified appellant of the deficiencies of her claim 

and afforded her 30 days to submit additional evidence and respond to its inquiries. 

Appellant submitted a January 30, 2011 MRI scan of the cervical spine which revealed 

moderate multilevel degenerative disc change. 

In a November 10, 2011 report, Dr. Brian Block, a Board-certified anesthesiologist and 

pain medicine specialist, diagnosed low back pain, leg pain, and neck pain. He opined that 

appellant’s cervical pain was “likely from her degenerated discs” and her back pain “could also 

be from degenerated or herniated discs.” Dr. Block further indicated that her adhesive capsulitis 

was “likely because she ha[d] not moved her arm enough due to the neck pain.” 

On October 30, 2013 Dr. Rana indicated that appellant had been under his care since 

2009 and had chronic neck, shoulder, and arm pain since December 22, 2010. He reiterated that 

appellant had been diagnosed with cervical spine degenerative disc disease on x-rays, later 

confirmed on MRI scans, and that her symptoms got worse over a period of time due to lifting, 

pulling, and pushing heavy boxes at work. He opined that these work-related exertions on her 

spine made her pain symptoms so bad that she had to miss work. 

By decision dated December 11, 2013, OWCP denied the claim on the basis that 

appellant failed to submit sufficient evidence to establish that a diagnosed medical condition was 

causally related to factors of her federal employment. 

On April 1, 2014 appellant requested reconsideration and submitted a disc containing 

multiple images from an MRI scan of the lumbar spine dated September 26, 2013 and a 

questionnaire completed by appellant prior to the study. 

By decision dated June 16, 2014, OWCP denied appellant’s request for reconsideration of 

the merits finding that she did not submit pertinent new and relevant evidence and did not show 

that OWCP erroneously applied or interpreted a point of law not previously considered by 

OWCP. 

On appeal appellant submitted an updated MRI scan of the lumbar spine and a completed 

medical questionnaire. 
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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 

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 also must file his or her 

application for review 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

 

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record8 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.9

 

ANALYSIS 

In support of her April 1, 2014 reconsideration request, appellant submitted a disc 

containing multiple images from a September 26, 2013 MRI scan of the lumbar spine and a 

questionnaire completed by appellant prior to the study. The Board finds that submission of 

these documents did not require reopening appellant’s case for merit review as they do not 

contain rationale by a physician relating a diagnosed medical condition to factors of her federal 

employment, which was the issue before OWCP.10 Therefore, these documents do not constitute 

 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). 

5

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

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 

8 See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

9 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

10 See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, 

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the 

scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. 

Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989). 
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relevant and pertinent new evidence and are not sufficient to require OWCP to reopen the claim 

for further consideration of the merits. 

Appellant did not submit any evidence to show that OWCP erroneously applied or 

interpreted a specific point of law or advanced a relevant legal argument not previously 

considered by OWCP, nor did she submit any relevant and pertinent new evidence not 

previously considered. On appeal, appellant submitted an updated MRI scan of the lumbar 

spine. The Board, however, is precluded from reviewing evidence which was not before OWCP 

at the time it issued its final decision.11 Thus, the Board finds that appellant did not meet any of 

the necessary requirements and is not entitled to further merit review.12 

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). 

ORDER 

IT IS HEREBY ORDERED THAT the June 16, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 See supra note 2. 

12 See L.H., 59 ECAB 253 (2007).