United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 14-1014 

Issued: September 26, 2014 

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 28, 2014 appellant, through counsel, filed a timely appeal of the December 10, 

2013 decision of the Office of Workers’ Compensation Programs (OWCP) which denied his 

request for reconsideration without conducting a merit review. Because more than 180 days 

elapsed since the most recent merit decision dated August 29, 2013 to the filing of this appeal, 

the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On January 20, 2012 appellant, then a 43-year-old letter carrier, filed a recurrence of 

disability claim asserting that on December 29, 2011, while exiting his work vehicle and 

changing mail trays, he experienced low back pain. He listed the date of original injury as 

April 17, 2010. OWCP developed this claim as a new traumatic injury. Appellant stopped work 

on January 14, 2012. 

Appellant submitted a January 19, 2012 report from Dr. Wei Xu, a Board-certified 

physiatrist, who treated him for back and right lower limb pain which began three weeks prior at 

work. Dr. Xu noted findings of tenderness with spasm of the right lumbar fascia muscles and 

limited range of motion of the lumbar spine. He diagnosed new onset of back pain and right 

lower limb pain secondary to lumbar strain and sprain, possible aggravation of a disc herniation 

and right-sided L3-L4 nerve root compression. Dr. Xu noted a causal relationship between 

appellant’s pain and injury sustained at work three weeks prior. He returned appellant to work at 

limited duty. In a February 2, 2012 report, Dr. Xu noted improvement in appellant’s symptoms 

after physical therapy. He noted decreased range of motion of the lumbar spine and diagnosed 

improved back pain and recommended physical therapy. On March 1, 2013 Dr. Xu advised that 

appellant reported his symptoms were significantly improved with physical therapy. Physical 

examination was unchanged. Dr. Xu diagnosed improving back pain with physical therapy and 

increased appellant’s work hours with limited lifting. In reports dated April 5 and May 3, 2012, 

he noted that appellant’s back pain improved with physical therapy. During this time period, 

appellant reported radiating pain involving the right lower limb and decreased lumbar range of 

motion. Dr. Xu diagnosed improving lower back pain with radiating pain to the right lower 

limb. 

Appellant submitted a February 10, 2012 magnetic resonance imaging scan of the lumbar 

spine which revealed severe multilevel degenerative disc and facet changes with central stenosis 

and neural foraminal narrowing at L3-4, L5-S1 and L4-5. He also submitted physical therapy 

notes. 

On July 24, 2013 OWCP advised appellant that his claim was originally received as a 

simple, uncontroverted case which resulted in minimal or no time loss from work. It was 

administratively handled to allow limited medical payments. Because he sought further medical 

treatment, appellant’s claim would be formally adjudicated. OWCP requested that appellant 

submit a comprehensive medical report from his treating physician which included a reasoned 

explanation as to how the specific work factors or incidents identified by him contributed to his 

claimed lumbar condition. Appellant did not respond. 

In a decision dated August 29, 2013, OWCP denied appellant’s claim. It found that the 

December 29, 2011 incident occurred as alleged but the medical evidence was insufficient to 

establish that appellant’s claimed back condition was causally related to the work incident. 

In an appeal request form dated September 30, 2013, appellant through his attorney 

requested reconsideration. He submitted an October 8, 2013 letter and requested reconsideration 

asserting that OWCP wrongly denied his benefits. Appellant believed the factual and medical 

evidence demonstrated that his injury was accepted by OWCP. He requested that OWCP 
3

confirm the prior claim approval, and comply with an offer of modified assignment dated 

March 2, 2012, pay all wage loss and provide for all necessary medical treatment. Appellant 

submitted reports from Dr. Xu dated January 19 to April 5, 2012 and a notice of recurrence of 

disability dated January 20, 2012, all previously of record. He also submitted an OWCP letter 

accepting his claim for lumbar sprain in claim number xxxxxx655.2

 Also submitted was a lightduty job offer dated March 2, 2012. 

In a December 10, 2013 decision, OWCP denied appellant’s request for reconsideration. 

It found that the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,3

 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)(2) 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 that: 

“(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.”4

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.5

ANALYSIS 

OWCP denied appellant’s claim for a traumatic injury on the grounds that the medical 

evidence was insufficient to establish that appellant’s claimed conditions were causally related to 

work events.6

 Thereafter, it denied appellant’s reconsideration request, without a merit review. 

 2

 Claim number xxxxxx655 is not presently before the Board. 

3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(2). 

5 Id. at § 10.608(b). 

6

 The Board’s jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision; 

therefore, the Board is unable to review evidence submitted by appellant on appeal. 
4

The issue presented is whether appellant met any of the requirements of 20 C.F.R. 

§ 10.606(b)(2), for OWCP to reopen his case for review of the merits. In his request for 

reconsideration, appellant did not contend that OWCP erroneously applied or interpreted a 

specific point of law. In his October 8, 2013 statement, appellant asserted that factual and 

medical evidence demonstrated that his work injury claim was accepted by OWCP. He 

requested that OWCP confirm its prior approval of his claim and comply with the offer of 

modified assignment dated March 2, 2012, pay all wage loss and provide for all necessary 

medical treatment. Appellant’s contention does not establish a legal error by OWCP in the 

adjudication of his claim. The underlying issue in this case is whether appellant’s diagnosed 

lumbar condition was causally related to the December 29, 2011 work incident. That is a 

medical issue which must be addressed by relevant medical evidence.7

 A claimant may be 

entitled to a merit review by submitting new or relevant evidence, but appellant did not submit 

any new or relevant medical evidence in support of his request for reconsideration. 

Appellant submitted reports from Dr. Xu dated January 19 to April 5, 2012 and the notice 

of recurrence of disability dated January 20, 2012. However, this evidence is duplicative of 

evidence previously submitted and considered by OWCP in its decision dated August 29, 2013. 

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value 

and does not constitute a basis for reopening a case.8

 Therefore, these reports are insufficient to 

require OWCP to reopen the claim for a merit review. 

Appellant submitted an OWCP letter accepting his claim for lumbar sprain in claim 

number xxxxxx655 and a light-duty job offer dated March 2, 2012. As noted, this evidence 

notes that appellant has a separate claim accepted for a lumbar sprain and was on limited duty. It 

was not accompanied by any new medical evidence. As explained, the underlying issue in this 

claim is whether the medical evidence establishes that appellant’s back condition in the present 

claim was caused or aggravated by the December 29, 2011 incident. The letter of acceptance 

from OWCP on a separate claim and the job offer are not relevant to this issue. Therefore, this 

evidence is insufficient to warrant reopening the case for a merit review 

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP, or 

constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

On appeal, appellant’s counsel asserts that he submitted sufficient evidence to establish 

that he developed a lumbar condition causally related to his employment duties and that OWCP 

improperly denied his reconsideration request. As discussed, the Board does not have 

jurisdiction to review the merits of his claim. Appellant did not submit any evidence or 

argument in support of his reconsideration request that warrants reopening of his claim for a 

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

 7 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

8 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984). 
5

CONCLUSION 

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

under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the December 10, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 26, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board