United States Department of Labor 

Employees’ Compensation Appeals Board 

____________________________________________

K.R., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET SOUND 

NAVAL SHIPYARD & INTERMEDIATE 

MAINTENANCE FACILITY, Bremerton, WA, 

Employer 

____________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-732 

Issued: September 2, 2014 

Appearances: Case Submitted on the Record

Cathy C. Deno, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On February 12, 2014 appellant, through her representative, filed a timely application for 

review from the October 10, 2013 and January 16, 2014 nonmerit decisions of the Office of 

Workers’ Compensation Programs (OWCP) denying her requests for reconsideration. Because 

more than 180 days elapsed from June 24, 2013, the date of the most recent merit decision, to 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 appellant’s 

claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s requests for further merit review 

of her claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 15, 2011 appellant, then a 66-year-old lead library technician, filed an 

occupational disease claim (Form CA-2) alleging that she developed post-traumatic or secondary 

osteoarthritis of the right knee as a result of repeated traumas to her knees at work. She became 

aware of her condition and of its relationship to her employment on July 27, 2010. Appellant did 

not stop work. 

By letter dated November 30, 2011, OWCP requested additional factual and medical 

evidence from appellant. It noted that she had not submitted factual or medical evidence in 

support of her claim and afforded her 30 days to submit additional evidence. OWCP requested 

information regarding appellant’s duties from the employing establishment on the same date. 

In a report dated July 20, 2011, Dr. Michael S. McManus, Board-certified in occupational 

medicine, diagnosed appellant with work-related post-traumatic or secondary osteoarthritis of the 

right knee. He reviewed the history of her right knee condition, which revealed multiple prior 

injuries to her right knee with an original injury to her right knee in a fall at work on 

September 8, 1992. At that time, appellant was diagnosed with right traumatic chondromalacia 

patellae. She subsequently reinjured her right knee at work on December 14, 1999. Appellant 

had stepped onto a stepstool when she felt a sudden “pop” and immediate onset of severe pain in 

her right knee joint. She was diagnosed with probable internal derangement and continued 

conservative treatment measures. Appellant underwent arthroscopic surgery with an orthopedic 

specialist. She subsequently continued to experience intermittent problems with her right knee, 

noting aching, stiffness and occasional catching. Appellant reinjured her knee again at work on 

July 27, 2010. She entered the back seat of a taxi at her workplace and felt a “pop” with 

immediate onset of severe pain in the anterolateral aspect of her right knee. Appellant was 

diagnosed with aggravation of secondary or post-traumatic osteoarthritis of the right knee. 

In a report dated October 5, 2011, Dr. McManus noted no improvement in appellant’s 

right knee symptoms. He stated that her pain was aggravated by walking up and down inclines 

and stairs. On October 26, 2011 Dr. McManus diagnosed appellant with aggravation of 

secondary osteoarthritis in the right knee, status post arthroscopic partial meniscectomy. He 

stated that she was last seen on October 5, 2011 and that her condition was improved. 

Appellant submitted a statement on November 14, 2011. She noted that she had 

previously filed traumatic injury claims for her right knee for injuries on September 8, 1992 

under claim number xxxxxx087 and on December 14, 1999 under claim number xxxxxx119. 

Appellant stated that, from 1991 through 2006, she worked at a technical data center, in a 

position where she would spend 70 to 85 percent of her days on her feet. On January 14, 2000 

she underwent right knee surgery. Appellant noted that her right knee had bothered her 

intermittently ever since the surgery and that it had progressively worsened. 

The employing establishment responded to OWCP’s inquiries on December 14, 2011, 

providing a description of tasks performed by appellant and a copy of her position description 

with physical requirements. A supervisor sent an e-mail to OWCP on December 9, 2011, noting 

that appellant had not worked in a position that required continuous or frequent kneeling or work 
3

on the knees, and that she did not recall appellant reporting any knee injuries in the summer 

of 2010. 

By decision dated February 22, 2012, OWCP denied appellant’s claim. It found that she 

had not provided an explanation from a physician as to the causal relationship between accepted 

work factors and her diagnosed condition. 

Appellant submitted an incomplete duty status report. She also submitted a summary of 

her visit with Dr. McManus on July 20, 2011, which stated diagnoses of strain of the knee, tear 

of the medial meniscus of the knee and osteoarthritis of the right knee. 

In a report dated May 1, 2012, Dr. McManus diagnosed appellant with a right knee 

sprain, right knee osteoarthritis and a possible recurrent tear of the medial meniscus of the right 

knee. He related each diagnosis to a date of injury of July 27, 2010 and provided an OWCP 

claim number of xxxxxx119. Dr. McManus noted that appellant’s pain was aggravated by 

walking up inclines and stairs. 

On June 4, 2012 appellant requested reconsideration of OWCP’s February 22, 2012 

decision. 

By letter dated February 27, 2013, the employing establishment stated that appellant had 

timely requested reconsideration, although OWCP did not have her request on file. It noted that 

OWCP had not sent a copy of the February 22, 2012 decision to her representative and requested 

that OWCP reissue this decision in order to protect appellant’s appeal rights. 

On March 11, 2013 OWCP vacated its February 22, 2012 decision and issued a de novo

decision on appellant’s claim on the basis that her representative had not been provided with a 

copy of the original decision. It considered all evidence that had been submitted since 

November 20, 2011. OWCP denied appellant’s claim on the basis that she had not provided an 

explanation from a physician as to the causal relationship between the accepted work factors and 

her diagnosed condition, noting that Dr. McManus’ most recent report of May 1, 2012 did not 

discuss work-related factors. 

On March 14, 2013 appellant requested reconsideration of OWCP’s March 11, 2013 

decision. With her request, she resubmitted Dr. McManus’ reports of July 20, October 5 and 26, 

2011 and May 1, 2012. 

In a duty status report dated February 14, 2013, Dr. McManus noted that appellant had 

injured her right knee on February 4, 2013 when she stepped on a rock, resulting in a varus stress 

injury. He diagnosed her with right knee sprain and right osteoarthritis of the lower leg. 

By decision dated June 24, 2013, OWCP reviewed the merits of appellant’s case and 

denied modification of its March 11, 2013 decision. It stated that none of the medical reports 

submitted contained a medical opinion explaining how her diagnosed conditions were medically 

related to her work activities. 

On September 6, 2013 appellant requested reconsideration of OWCP’s June 24, 2013 

decision. 
4

In a letter dated September 4, 2013, Dr. McManus noted that appellant’s present right 

knee condition was the direct result of a prior work injury on December 14, 1999. He stated that, 

on that date, she stepped onto a stool at work, felt a sudden pop and an immediate onset of severe 

deep right knee pain. Appellant was subsequently diagnosed with internal derangement and 

underwent arthroscopic surgery or bilateral partial meniscectomies. Dr. McManus noted that she 

subsequently reinjured or aggravated her right knee condition at work on July 27, 2010. 

By decision dated October 10, 2013, OWCP denied to consider the merits of appellant’s 

request for reconsideration. It found that Dr. McManus’ letter of September 4, 2013 was 

cumulative and substantially similar to evidence previously considered. 

Appellant again requested reconsideration of OWCP’s June 24, 2013 decision on 

October 23, 2013.2

In a letter dated October 21, 2013, Dr. McManus described appellant’s history of injury 

and stated his opinion that her condition resulted from work-related factors. He wrote, in part, 

“As per my letter of September 4, 2013, [appellant] required prior right knee 

arthroscopic partial lateral and medial meniscectomies due to her work injury of 

December 14, 1999. This injury and subsequent surgery resulted in a loss of the 

cushion in her knee joint, predisposing her to secondary osteoarthritis due to load 

and shear forces. With loss of the dis[c] space height, there was an associated 

laxity or redundancy of the ligaments, with increased shear stress with shear force 

and acceleration of the degenerative processes. This resulted in progressive posttraumatic osteoarthritis of [appellant’s] right knee, which she aggravated due to 

the work injury of July 27, 2010. Her present primary problem is secondary or 

post-traumatic osteoarthritis of her right knee due to her December 14, 1999 

injury, aggravated by her work injury of July 27, 2010 and also due to her prior 

need for arthroscopic partial medial meniscectomies. For this reason, I am 

specifically request[ing] reconsideration of your Notice of Decision dated 

June 24, 2013.” 

By decision dated January 16, 2014, OWCP denied to consider the merits of the request 

for reconsideration. It noted that the October 21, 2013 letter did not describe the traumatic event 

of July 27, 2010, and that it contained the same opinion on causation as in previous reports from 

Dr. McManus, such that it constituted cumulative and repetitious evidence. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

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 

 2

 The appeal request form lists a decision date of October 10, 2013, but as this decision was not made on the 

merits, OWCP treated her request as an appeal from the June 24, 2013 decision. 
5

evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.4

The Board held that evidence that repeats or duplicates evidence already in the case 

record has no evidentiary value.5

 The Board also has held that the submission of evidence which 

does not address the particular issue involved does not constitute a basis for reopening a case.6

 

While the reopening of a case may be predicated solely on a legal premise not previously 

considered, such reopening is not required where the legal contention does not have a reasonable 

color of validity.7

ANALYSIS 

OWCP issued a June 24, 2013 decision denying appellant’s claim for compensation. On 

September 6 and October 23, 2013 appellant requested reconsideration of this decision. OWCP 

declined her requests for reconsideration in nonmerit decisions on October 10, 2013 and 

January 16, 2014. 

The Board does not have jurisdiction over the June 24, 2013 merit decision. The issue on 

appeal is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring 

OWCP to reopen the case for review of the merits of her claim. In her September 6 and October 

23, 2013 requests for reconsideration, appellant did not establish 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 interpreted or applied. Thus, appellant is not entitled to a review of the merits 

of her claim based on the first and second above-noted requirements under section 10.606(b)(3). 

The Board finds that appellant did not submit any new and relevant evidence in this case. 

OWCP properly declined to reopen her case for review of the merits. 

With her reconsideration request of September 6, 2013, appellant submitted a letter dated 

September 4, 2013 from Dr. McManus. He reiterated his opinion that her right knee condition 

was the direct result of a prior work injury on December 14, 1999. Dr. McManus stated that on, 

that date, she stepped onto a stool at work, felt a sudden pop and an immediate onset of severe 

deep right knee pain. Appellant was subsequently diagnosed with internal derangement and 

underwent arthroscopic surgery or bilateral partial meniscectomies. Dr. McManus noted that she 

subsequently reinjured or aggravated her right knee condition at work on July 27, 2010. He 

 3

 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 

4 Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008). 

5 See Daniel Deparini, 44 ECAB 657, 659 (1993). 

6 P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB 

180, 187 (2000). 

7 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 
6

substantially repeated his opinion as noted in his May 1, 2012 report. Dr. McManus’ opinion 

was cumulative and substantially similar to prior evidence from him considered by OWCP. 

Thus, Dr. McManus’ September 4, 2013 letter did not constitute relevant and pertinent new 

evidence not previously considered by OWCP and its submission did not require OWCP to 

review appellant’s case on the merits. 

With her reconsideration request of October 23, 2013, appellant submitted a letter dated 

October 21, 2013, in which Dr. McManus stated that her injury and subsequent surgery resulted 

in a loss of the cushion in her knee joint, predisposing her to secondary osteoarthritis. There was 

an associated laxity or redundancy of the ligaments, with increased shear stress with shear force 

and acceleration of the degenerative processes which resulted in post-traumatic osteoarthritis of 

her right knee, which she aggravated on July 27, 2010. OWCP declined appellant’s request for 

reconsideration on the basis that this letter was duplicative of the September 4, 2013 letter that 

appellant’s condition was aggravated by an event on July 27, 2010. It found this letter 

cumulative and repetitious, and thus insufficient to warrant review of the June 24, 2013 decision. 

The underlying issue upon reconsideration was whether appellant submitted rationalized medical 

evidence of a causal relationship between her diagnosed knee condition and work-related factors. 

Dr. McManus reiterated his opinion on causal relationship in a substantially similar fashion as in 

prior reports. The Board finds that Dr. McManus’ October 21, 2013 letter did not constitute 

relevant and pertinent evidence not previously considered by OWCP, such that it required 

OWCP to reopen the case for merit review.8

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3) in her reconsideration requests of September 6 and October 23, 2013. 

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 new evidence not previously considered. Thus, pursuant to 20 C.F.R. § 10.608, OWCP 

properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further review of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). 

 8 See M.G., Docket No. 10-230 (issued September 7, 2010). 
7

ORDER 

IT IS HEREBY ORDERED THAT the January 16, 2014 and October 10, 2013 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: September 2, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board