United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

Y.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jackson, MI, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-406 

Issued: May 20, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 11, 2014 appellant filed a timely appeal of the August 29 and October 7, 

2014 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP).1

 As more 

than 180 days elapsed since the most recent merit decision dated May 16, 2014 and the filing of 

this appeal on December 11, 2014, the Board lacks jurisdiction to review the merits of the claim 

pursuant to the Federal Employees’ Compensation Act2

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

501.3.3

 1

 With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider 

new evidence on appeal; see 20 C.F.R. § 501.2(c). 

2

 5 U.S.C. §§ 8101-8193. 

3

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). 
2

ISSUE 

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

pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On September 9, 2013 appellant, then a 30-year-old mail processing clerk, filed a Form 

CA-2, notice of occupational disease, alleging that she developed a fractured left foot as a result 

of the prolonged standing on cement floors while in the performance of duty. OWCP accepted 

her claim for bilateral metatarsalgia and stress fracture of the right metatarsals. Appellant 

stopped work on August 23, 2013. 

Appellant was treated by Dr. Rose Sotolongo, a podiatrist, on August 29, 2013, for pain 

in the left foot at the fourth and fifth dorsal. Dr. Sotolongo noted x-ray of the right foot revealed 

a stress fracture at the base of the third metatarsal. She diagnosed pain in limb, edema, stress 

fracture and foot deformity with metatarsalgia and recommended orthotics. In an October 21, 

2013 report, Dr. Sotolongo noted that appellant had been released to work full time with 

restrictions on October 19, 2013. In a work capacity evaluation dated November 8, 2013, she 

noted that appellant could return to work full time with restrictions of no prolonged standing. In 

a subsequent duty status report dated February 18, 2014, Dr. Sotolongo again noted that 

appellant could return to work full time with restrictions. In another work capacity evaluation 

dated February 12, 2014, she noted that appellant could work eight hours per day with 

restrictions. 

On April 24, 2014 appellant filed a claim for a schedule award. She submitted reports 

from Dr. Sotolongo, dated April 15, 2014, who had treated appellant for foot pain and lower 

back, stenosis and neuropathy aggravated by standing on concrete floors. Dr. Sotolongo 

diagnosed neuropathy pain from the lower back stenosis both feet, metatarsalgia resolved with 

orthoses, stress fracture of the metatarsals healed, and enthesopathy of tarsus stable. She 

recommended neuropathy compound cream. In a May 2, 2014 report, Dr. Sotolongo diagnosed 

lumbar stenosis and metatarsalgia. Appellant reported that foot pain prevented her from 

working. Dr. Sotolongo noted that she could not rule out malingering. In a work capacity 

evaluation dated April 23, 2014, she diagnosed lower back stenosis causing neuropathy. 

Dr. Sotolongo returned appellant to work regular duty and requested that she be provided a 

rubber pad on which to stand while working. 

OWCP referred Dr. Sotolongo’s report and the case record to an OWCP medical adviser 

for evaluation as to the extent of permanent partial impairment of the bilateral lower extremities 

permanent impairment under the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment, (A.M.A., Guides).4 In a report dated May 8, 2014, the 

medical adviser opined that appellant had zero percent impairment of the bilateral lower 

extremities. He advised that there was no clinical or radiographic evidence that supported any 

impairment of the lower extremities. 

 4

 A.M.A., Guides (6th ed. 2008). 
3

In a decision dated May 16, 2014, OWCP denied appellant’s claim for a schedule award. 

On August 25, 2014 appellant requested reconsideration. She submitted statements dated 

August 1, 2014 which noted that she was working in the automation department and wore special 

shoe inserts. Appellant reported not being able to work a full shift without pain medication. She 

submitted an April 15, 2014 report from Dr. Sotolongo, an April 23, 2014 work capacity report 

from Dr. Sotolongo, and a May 8, 2014 report from an OWCP medical adviser, all previously of 

record. An April 1, 2014 x-ray report noted mild hallus, mild halux valgus, and mild flexion 

deformity. In a July 30, 2014 work capacity evaluation, Dr. Sotolongo noted treating appellant 

for chronic pain and that she was unable to perform her usual job for eight hours a day with 

restrictions because she was unable to stand. She noted that appellant’s examination was normal 

and she reached maximum medical improvement with regard to her feet but she still experienced 

chronic pain due to her back. Dr. Sotolongo noted that appellant sustained a possible stress 

fracture with pain and swelling which had resolved; however, she continued to complain of foot 

pain due to lumbar stenosis. 

In an August 29, 2014 decision, OWCP denied appellant’s request for reconsideration as 

the evidence submitted was insufficient to warrant a merit review. 

On September 8, 2014 appellant again requested reconsideration. She indicated that she 

was entitled to a schedule award because of the pain and suffering endured after working 

prolonged hours on a cement floor. Appellant indicated that the medication caused her to gain 

weight, she was required to wear shoe inserts, and her condition negatively affected her social 

life. She indicated that her physician had provided adequate information to support her claim. 

Appellant reported that she could hardly walk to the parking lot. She stated that she had used all 

her sick and annual leave, and now had to use leave without pay. Appellant submitted an x-ray 

report from Dr. Sotolongo dated April 1, 2014 and reports dated April 15 and 23, 2014, all 

previously of record. 

In an October 7, 2014 decision, OWCP again denied appellant’s request for 

reconsideration as the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,5

 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 provide 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 which: 

“(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 

 5

 5 U.S.C. § 8128(a). 
4

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”6

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.7

ANALYSIS 

OWCP, by decision dated May 16, 2014, denied appellant’s claim for a schedule award 

because she failed to establish permanent impairment due to her accepted work condition. 

Thereafter, on August 29 and October 7, 2014 it denied her reconsideration requests, without 

merit reviews. 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of her claim. 

In her August 25, 2014 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. She did not identify a specific point of 

law or show that it was erroneously applied or interpreted. Appellant did not advance a new and 

relevant legal argument. She submitted statements dated August 1, 2014 which noted that she 

was working in the automation department and wore special shoe inserts. Appellant noted not 

being able to work a full shift without pain medication. The underlying issue in this case is 

whether she sustained permanent impairment to a scheduled member due to her accepted work 

injury. That is a medical issue which must be addressed by relevant new medical evidence.8

 As 

appellant failed to submit any new and relevant medical evidence in support of her claim, her 

claim was denied without a merit review. In another request for reconsideration, dated 

September 8, 2014, she submitted an April 15, 2014 report from Dr. Sotolongo, an April 23, 

2014 work capacity report from Dr. Sotolongo, and a May 8, 2014 report from an OWCP 

medical adviser. However, these reports are duplicative of evidence previously submitted and 

considered by OWCP in its May 16, 2014 decision. 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.9

 Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit 

review. 

Appellant submitted a new July 30, 2014 work capacity evaluation from Dr. Sotolongo 

who treated appellant for chronic pain. Dr. Sotolongo noted that appellant was unable to 

 6

 20 C.F.R. § 10.606(b)(2). 

7 Id. at § 10.608(b). 

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

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

ECAB 1090, 1093-94 (1984). Furthermore, as appellant has not established a compensable factor of employment, it 

medical evidence addressing causal relationship, even if new, would not be relevant. See C.T., Docket No. 08-2160 

(issued May 7, 2009) (if a claimant has not established any compensable employment factors, OWCP need not 

consider the medical evidence). 
5

perform her usual job as she was unable to stand. She noted that appellant’s examination was 

normal and she reached maximum medical improvement with regard to her feet but she still 

experienced chronic pain due to her back. Dr. Sotolongo noted that appellant sustained a 

possible stress fracture with pain and swelling which resolved; however, she continued to 

complain of foot pain due to lumbar stenosis. Also submitted was a new April 1, 2014 x-ray 

report which noted mild hallus, mild halux valgus and mild flexion deformity. However, these 

reports, while new, are not relevant because they do not specifically address the issue of whether 

appellant sustained permanent impairment to a scheduled member due to her accepted work 

injury. The Board has held that the submission of evidence which does not address the particular 

issue involved in a case does not constitute a basis for reopening the claim.10 Thus, these reports 

are insufficient to require OWCP to reopen the claim for a merit review. 

With regard to her September 8, 2014, request for reconsideration, appellant did not show 

that OWCP erroneously applied or interpreted a specific point of law. She did not identify a 

specific point of law or show that it was erroneously applied or interpreted. Appellant did not 

advance a new and relevant legal argument. She indicated that she was entitled to a schedule 

award because of the pain and suffering she has endured after working prolonged hours on 

cement floors. Appellant indicated that medication caused her to gain weight, she was required 

to wear shoe inserts, had difficulty walking distances, and her condition negatively affected her 

social life. She indicated that her physician provided adequate information to support her claim. 

Appellant also asserted that, because of her condition, she had exhausted her leave. As noted, 

the underlying issue in this case is whether she sustained permanent impairment to a scheduled 

member due to her accepted work injury. That is a medical issue which must be addressed by 

relevant new medical evidence.11 A claimant may be entitled to a merit review by submitting 

new and relevant evidence, but appellant did not submit any new and relevant medical evidence 

in support of his or her claim. 

Appellant submitted an April 1, 2014 x-ray report from Dr. Sotolongo and other reports 

from Dr. Sotolongo dated April 15 and 23, 2014. However, as noted above, these reports from 

Dr. Sotolongo are duplicative of evidence previously submitted and considered by OWCP in its 

May 16 and August 29, 2014 decision. Therefore, these reports are insufficient to require 

OWCP to reopen the claim for a merit review. 

The Board accordingly 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 

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

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

 10 Johnnie B. Causey, 57 ECAB 359 (2006). 

11 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 7 and August 29, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: May 20, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board