United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kansas City, MO, Employer 

__________________________________________ 

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Docket No. 15-451 

Issued: April 13, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 22, 2014 appellant, through counsel, filed a timely appeal of a 

November 20, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) which denied her request for reconsideration. The most recent merit decision is a 

Board decision dated November 19, 2013, which became final after 30 days of issuance,1

 and is 

not subject to further review.2

 Pursuant to the Federal Employees’ Compensation Act3 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction over the nonmerits of this 

case. 

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). 

 1

 20 C.F.R. § 501.7(a); see R.M., Docket No. 14-1213 (issued October 15, 2014). 

2 Id. at § 501.6(d); see R.M., id. 

3

 5 U.S.C. § 8101 et seq. 
2

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. 

FACTUAL HISTORY 

This case was previously before the Board.4

 On January 16, 2007 appellant, a 37-yearold city carrier, filed a traumatic injury claim (Form CA-1) alleging that she injured her head, 

neck, and back as a result of stepping out of a vehicle and slipping on ice. By decision dated 

April 7, 2011, OWCP accepted the claim for neck sprain. On March 31, 2011 appellant, through 

counsel, filed a claim for a recurrence of disability (Form CA-2a). In a December 9, 2011 

decision, OWCP denied the recurrence claim on the basis that the medical evidence was 

insufficient to establish that appellant sustained a recurrence of her medical condition 

commencing March 30, 2011 causally related to the January 16, 2007 employment injury. By 

decision dated May 8, 2012, an OWCP hearing representative affirmed the December 9, 2011 

decision. Appellant requested reconsideration. By decision dated April 19, 2013, OWCP denied 

modification of its prior decision. By decision dated November 19, 2013, the Board affirmed the 

April 19, 2013 OWCP merit decision which denied appellant’s recurrence claim. The facts of 

the case, as set forth in the prior decision, are hereby incorporated by reference. 

On December 11, 2013 appellant, through counsel, requested reconsideration and 

submitted an April 14, 2011 report from Dr. Harold Hess, a Board-certified neurosurgeon, who 

diagnosed cervical pain and opined that the condition was causally related to appellant’s 

employment injury when she slipped at work in January 2007. Dr. Hess indicated that, if 

appellant’s pain did not improve after a full course of conservative treatment, he would 

recommend further diagnostic testing, including a cervical myelogram followed by a 

computerized axial tomography (CAT) scan. 

By decision dated January 9, 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 November 4, 2014 appellant, through counsel, requested reconsideration and 

submitted an October 24, 2014 report from Dr. Hess who indicated that his opinion remained the 

same as his last visit with appellant on February 14, 2013, which was that she was suffering from 

cervical discogenic pain and he recommended a cervical discogram of C3-7. 

By decision dated November 20, 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. 

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 

 4

 Docket No. 13-1430 (issued November 19, 2013). 
3

an award for or against compensation.5

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).6

 

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.7 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.8

 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.9

 

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

duplicates evidence or argument already in the case record10 and the submission of evidence or 

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

reopening a case.11 

ANALYSIS 

In support of her November 4, 2014 reconsideration request, appellant submitted an 

October 24, 2014 report from Dr. Hess who indicated that his opinion remained the same as his 

last visit with appellant on February 14, 2013, which was that she was suffering from cervical 

discogenic pain and he recommended further diagnostic testing. The Board finds that 

submission of this report did not require reopening appellant’s case for merit review. As OWCP 

denied her claim based on the lack of supportive medical evidence and this report repeats 

evidence already in the case record, it is cumulative and does not constitute relevant and 

pertinent new evidence. Therefore, it is not sufficient to require OWCP to reopen the claim for 

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. Because she only submitted cumulative evidence with her request for 

 5

 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). 

6 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

7

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

8 Id. at § 10.607(a). 

9 Id. at § 10.608(b). 

10 See A.L., supra note 7. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

11 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
4

reconsideration, the Board finds that she did not meet any of the necessary requirements and she 

is not entitled to further merit review.12 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons stated above, the Board finds counsel’s arguments are not 

substantiated. 

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 November 20, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

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