United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Wauchula, FL, Employer 

__________________________________________ 

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Docket No. 14-1507 

Issued: August 17, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 23, 2014 appellant, through counsel, filed a timely appeal of a June 2, 2014 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days has elapsed between the last merit decision on February 1, 2013 and 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 to review the merits of the claim. 

ISSUE 

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

without reviewing the merits of the claim for compensation pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case was before the Board on a prior appeal. By decision dated July 3, 2013, the 

Board affirmed a February 1, 2013 OWCP decision denying the claim for compensation.2

 

Appellant had filed a claim on January 5, 2012 alleging that she sustained a spinal nerve injury 

causally related to repetitive movements as a mail carrier. The Board found that the medical 

evidence from the attending orthopedic surgeon, Dr. Darryl Miller, was insufficient to establish 

the claim. As the Board noted, Dr. Miller did not discuss appellant’s job duties or provide a 

complete factual background. In addition, Dr. Miller had indicated only that appellant had been 

asymptomatic and this was not sufficient medical rationale to support an opinion on causal 

relationship with employment. 

Appellant, through counsel, filed a request for reconsideration dated December 5, 2013 

and a September 27, 2013 report from Dr. Miller. In his report Dr. Miller noted that he had seen 

appellant in November 2012, with magnetic resonance imaging (MRI) scans showing disc 

protrusion and bilateral foraminal stenosis at C5-6, and disc bulges at C3-7. He stated that 

appellant continued to have cervical symptomology. Dr. Miller further stated that appellant 

“previously was employed as a rural mail carrier which involved approximately 1,000 deliveries 

a day on her route. Additionally, she worked anywhere from five to six days per week. This 

involved entering and exiting the vehicle as well as rotation of body, torso, neck and upper 

extremities for the delivery of mail. I explained to [appellant] that due to the fact that she was 

asymptomatic before this event and with the type of work she does, this is certainly some type of 

injury that can be attributable to her work[-]related activities.” 

By decision dated June 2, 2014, OWCP denied merit review of the claim. It found the 

September 27, 2013 report from Dr. Miller was “substantially similar” to previous evidence of 

record. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or 

(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”4

 

20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.5

 2

 Docket No. 13-900 (issued July 3, 2013). 

3

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application”). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
3

ANALYSIS 

In the present case, appellant submitted on reconsideration a new medical report dated 

September 27, 2013 from Dr. Miller. The issue is whether the new evidence is “relevant and 

pertinent” to the medical issue under 20 C.F.R. § 10.606(b)(3). Although OWCP finds that the 

report was “substantially similar” to his prior reports, the Board finds the September 27, 2013 

report is new and relevant evidence.6

As the Board discussed in the prior appeal, Dr. Miller’s previous reports had not 

discussed appellant’s actual job duties or work history. In the September 27, 2013 report, 

Dr. Miller refers to appellant’s job duties of delivering mail, the amount of mail and the number 

of days performed. In addition, Dr. Miller for the first time refers to the mechanism of injury 

and the specific repetitive activity that occurred. In S.G., the claimant submitted on 

reconsideration a new medical report discussing, for the first time, the employment activity and 

the mechanism of injury involved.7

 The Board found this was sufficient to require OWCP to 

reopen the case for merit review. As the Board noted, appellant is not required to cure all 

deficiencies in the claim to meet the requirements of 20 C.F.R. § 10.606(b)(3). 

In this case the September 27, 2013 report is new, relevant, and pertinent evidence with 

respect to the medical issue in the case. Pursuant to 20 C.F.R. § 10.606(b)(3), appellant is 

entitled to a merit review of her claim. The case will be remanded to OWCP for a decision on 

the merits of the claim for compensation. 

CONCLUSION 

The Board finds appellant’s application for reconsideration was sufficient to warrant 

merit review of her claim for compensation. 

 6

 The Board has reviewed the September 27, 2013 report by Dr. Miller which was submitted in support of the 

reconsideration request dated December 5, 2013. That request for merit review was denied by the decision presently 

before the Board. The September 2013 medical report differs from prior reports such as the medical reports dated 

June 8 and December 18, 2012. 

7

 Docket No. 12-1107 (issued January 22, 2013). 
4

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 2, 2014 is set aside and the case remanded for further action 

consistent with this decision of the Board. 

Issued: August 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board