United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

L.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Oakland, CA, Employer 

_________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0990 

Issued: December 4, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 30, 2015 appellant filed a timely appeal from a March 19, 2015 nonmerit 

decision the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from the most recent merit decision of September 4, 2014 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 this claim. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and history contained in the 

prior appeals are incorporated herein by reference. 

The relevant facts include that in 1992 appellant, then a 37-year-old mail processing 

clerk, filed an occupational disease claim (Form CA-2), which was accepted for bilateral carpal 

tunnel syndrome, lateral epicondylitis, right, and calcifying tendinitis of the left shoulder. On 

November 25, 2008 OWCP found that her actual earnings as a modified mail processing clerk 

fairly and reasonably represented her wage-earning capacity. 

Appellant filed claims (Forms CA-7) for wage-loss compensation beginning December 2, 

2009 because the employing establishment had withdrawn her limited-duty position on that date 

due to the National Reassessment Process (NRP). OWCP denied her claims for wage loss by 

decision dated October 29, 2010, finding that she had failed to establish that her formal loss of 

wage-earning capacity should be modified. Appellant requested a review of the written record 

by the Branch of Hearings and Review. 

By decision dated February 17, 2011, the hearing representative affirmed the October 29, 

2010 decision denying modification of the wage-earning capacity determination. Appellant 

requested reconsideration of that decision and, by decision dated March 12, 2012, OWCP 

reviewed the merits of the claim, but denied modification of the prior OWCP decisions. 

Appellant appealed to the Board on April 5, 2012 and, by decision dated January 15, 

2013,3

 the Board set aside the March 12, 2012 OWCP decision and remanded the case for 

OWCP to properly develop the evidence under FECA Bulletin 09-05, which had specific 

procedures in place when a limited-duty position was withdrawn under the NRP. 

By letter dated February 11, 2013, OWCP requested additional information from the 

employing establishment related to appellant’s modified-duty position. It requested that the 

employing establishment confirm that the position, upon which the wage-earning capacity 

decision was based, was a bona fide position.

In a letter dated April 3, 2013, Rachel Munoz, the health and resources manager, 

responded that the modified job offer was not makeshift work. She explained that appellant was 

offered a position as a modified mail processing clerk based upon the employee’s medical 

restrictions consistent with “Employee Labor Management 546.” Ms. Munoz noted that a 

grievance was settled and appellant was awarded a bid as a general clerk and continued to work 

 2

 By decision dated April 26, 2002, the Board affirmed the termination of appellant’s wage-loss compensation 

and medical benefits effective January 4, 2000 but remanded the case to OWCP for payment of wage-loss 

compensation for intermittent dates of medical examinations. Docket No. 00-1097 (issued April 26, 2002); petition 

for recon. denied October 17, 2002. By decision dated February 2, 2005, the Board affirmed the denial of 

appellant’s claims for shoulder and neck conditions causally related to her accepted employment injuries, affirmed 

the denial of intermittent wage-loss compensation for the period August 25 to October 10, 2003, and affirmed the 

denial of a merit review under 5 U.S.C. § 8128(a). Docket No. 04-1195 (issued February 2, 2005). 

3

 Docket No. 12-1001 (issued January 15, 2013). 
3

in that capacity. She noted that appellant was required to pass a typing test and was awarded the 

position because of her specialized skill. 

In an April 11, 2013 decision, after further developing the evidence pursuant to the 

Board’s remand, OWCP denied modification of its November 25, 2008 wage-earning capacity 

decision. It found that the original wage-earning capacity decision had been based on an actual, 

bona fide position, that it had been based on appellant’s medical restrictions at the time, that 

there was no material change in the nature or extent of the work-related conditions, and that she 

continued to be capable of performing the duties of that limited-duty position. 

On April 22 and June 23, 2013 appellant again requested reconsideration. She argued 

that her wage-earning capacity position was makeshift. Appellant claimed that she was offered 

duties within her medical restrictions, but they were not for an actual position. She requested 

compensation from December 2, 2009, the date she was sent home. In addition, appellant 

submitted medical reports from Dr. Michael E. Hebrard, a Board-certified physiatrist, dated 

July 11 and August 13, 2013. Dr. Hebrard found no evidence of peripheral neuropathy or that 

she should remain at the modified sedentary position. 

By decision dated September 17, 2013, OWCP found the evidence of record insufficient 

to modify its April 11, 2013 decision. It noted that the employing establishment had verified that 

the position was not makeshift and there was no evidence that she could no longer perform the 

light duties set out in the wage-earning capacity determination. 

On February 23 and 25, 2014 appellant requested reconsideration and submitted 

additional arguments. 

In a letter dated March 19, 2014, OWCP requested that the employing establishment 

provide additional information to clarify the details of the modified position of a mail processing 

clerk. In response, the employing establishment provided another copy of its April 3, 2013 letter 

and penciled in the date “May 15, 2014.” 

By decision dated May 28, 2014, OWCP denied modification of its prior decision. It 

reviewed the evidence and found it failed to establish that the wage-earning capacity decision 

should be modified. 

On June 1 and August 25, 2014 appellant again requested reconsideration. She reiterated 

that her wage-earning capacity decision was based upon a temporary makeshift position which 

terminated one year and six months after it was offered and she claimed that, as the work she had 

been doing was not necessary, it was not an actual position. Appellant further argued that 

OWCP had failed to review her evidence or her grievance. 

On August 11, 2014 OWCP received a July 30, 2014 supplemental report from 

Dr. Hebrard. Dr. Hebrard opined that appellant’s claims for wage loss were work related. He 

explained that her conditions developed from repetitive grasping, fingering, and pinching, 

flexion and extension of the hand and wrist, pressuring the median nerve in the carpal tunnel and 

over time, she developed paresthesias, weakness, and pain. Dr. Hebrard opined that appellant 

had weakness, stiffness, inflammation of the hands, and increased paresthesias. He noted that 

there was a subjective increase in pain which impeded her activities of daily living and her work 
4

performance which required grasping, fingering, and pinching, pushing, pulling, reaching, and 

lifting. Dr. Hebrard found that the activities and processes caused an aggravation of an 

underlying, preexisting condition. He explained that it was his opinion “with a reasonable 

degree of medical certainty that there is a causal relationship between [appellant’s] occupational 

exposure (date of injury of May 23, 1987) and her ongoing chronic condition.” Dr. Hebrard 

opined that appellant had permanent disability and impairment and, in light of the progression of 

pathology, might need wrist surgery. 

By decision dated September 4, 2014, OWCP denied modification of its prior decision. 

It found that the new evidence did not show a material change to the nature and extent of the 

original work-related conditions. 

On September 19, 2014 appellant again requested reconsideration. She argued that the 

original decision and rating were in error, she was retrained and or vocationally rehabilitated, and 

her medical condition changed from the original accepted condition. Appellant explained that 

she originally had several claims that were doubled and her claim was accepted for muscle 

spasm of the right trapezius area, right trapezius strain, and right tendinitis. She argued that 

Ms. Munoz provided only a statement and no proof of a bid posting that the modified assignment 

was an actual position. Appellant also argued that limited-duty assignments were provided to 

employees during the recovery process when the effects of the injury were considered temporary. 

She argued that her assignment was temporary and ended on December 1, 2009. Additionally, 

appellant indicated that she filed a grievance and it was found that the job was ended because it 

was unnecessary and the tasks were assigned to other employees with bidded positions. She 

argued that she sustained a material physical change in the nature and extent of her work-related 

conditions. Appellant explained that she now had subluxation of the shoulder, bicipital 

tenosynovitis, rotator cuff syndrome, bilaterally, and bursitis. She argued that OWCP failed to 

include her accepted conditions when her files were doubled. Appellant argued that she began 

the rehabilitation process in April 2007 and was able to return to the employing establishment in 

the capacity of a general clerk. 

Appellant provided copies of previously submitted evidence and a claim for 

compensation. Also submitted was a July 16, 2014 report from Dr. Hebrard. Dr. Hebrard noted 

seeing appellant for bilateral shoulder pain, worse on the right. He noted findings and diagnosed 

shoulder subluxation, bicipital tendinitis, and rotator cuff syndrome, bursitis. Dr. Hebrard 

opined that there was a causal relationship between a September 5, 1985 work event and 

appellant’s current condition.4

 

In a decision dated March 19, 2015, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant a merit review of 

its prior decision. It found that the evidence was cumulative and repetitive and thus substantially 

similar to evidence or documentation already contained in the case file and previously 

considered. 

 4

 Dr. Hebrard referenced claim number xxxxxx120. This claim is not before the Board on the present appeal. 
5

LEGAL PRECEDENT 

As a general rule, if a formal loss of wage-earning capacity decision has been issued, the 

rating should be left in place unless the claimant requests resumption of compensation for total 

wage loss. In that instance, the claims examiner should evaluate the request according to the 

customary criteria for modifying a formal loss of wage-earning capacity.5

 Nonetheless, in cases 

where arguments submitted have previously been addressed by OWCP and in which a claimant 

submits no new or relevant evidence, OWCP may address the request under the provisions found 

in section 8128 of FECA and deny merit review.6

 

The OWCP procedure manual provides that when appellant files a request for 

reconsideration after a wage-earning capacity is in place, OWCP should carefully review the 

request to determine whether it is actually a request for reconsideration of a prior decision, rather 

than a request for modification of the wage-earning capacity.7

 

Under section 8128(a) of FECA,8 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that: 

“(1) Shows that [OWCP] erroneously applied or interpreted a specific point of 

law; or 

“(2) Advances a relevant legal argument not previously considered by OWCP; or 

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

[OWCP].”9

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.10

 5 Katherine T. Kreger, 55 ECAB 633 (2004). 

6 A.P., Docket No. 14-851 (issued September 2, 2014). See also G.A., Docket No. 14-1505 (issued 

November 5, 2014). 

7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Case/Disability Management, Chapter 2.1501(4)(a) 

(June 2013). 

8 Supra note 1 at § 8128(a). 

9

 20 C.F.R. § 10.606(b). 

10 Id. at § 10.608(b). 
6

ANALYSIS 

The only decision before the Board in this appeal is the decision of OWCP dated 

March 19, 2015 denying appellant’s request for reconsideration, finding that the evidence of 

record was insufficient to warrant a merit review. The Board finds that OWCP properly handled 

this case as a request for reconsideration rather than a request for modification of the wageearning capacity determination. 

On November 25, 2008 OWCP found that appellant’s actual earnings fairly and 

reasonably represented her wage-earning capacity. In merit decisions dated April 11 and 

September 17, 2013 and May 28 and September 4, 2014, it denied her requests for modification 

of the wage-earning capacity decision. Appellant again requested reconsideration on 

September 19, 2014. 

Appellant disagreed with OWCP’s September 4, 2014 denial of her request for 

reconsideration and timely requested reconsideration on September 19, 2014. In this request for 

reconsideration, she repeated her previous arguments that the original decision and rating were in 

error, she was retrained and or vocationally rehabilitated, and her medical condition changed 

from the original accepted condition. Appellant argued that Ms. Munoz provided only a 

statement and no proof of a bid posting that the modified assignment was an actual position. 

Appellant also argued that limited-duty assignments were provided to employees during 

the recovery process when the effects of the injury were considered temporary. She believed that 

her assignment was temporary because it ended on December 1, 2009. Additionally, appellant 

indicated that she filed a grievance and it was found that the job was ended because it was 

unnecessary and the tasks were assigned to other employees with bid positions. She argued that 

she sustained a material physical change in the nature and extent of her work-related conditions. 

Appellant explained that she now had subluxation of the shoulder, bicipital tenosynovitis, rotator 

cuff syndrome, bilaterally, and bursitis. She argued that OWCP failed to include her accepted 

conditions when doubling her claims. Appellant also argued that she started the rehabilitation 

process in April 2007 and was able to return to the employing establishment in the capacity of a 

general clerk. 

The Board finds that OWCP had previously considered all of these or similar arguments 

when it had previously denied appellant’s requests for modification of her wage-earning capacity 

determination in the prior decisions. Appellant did not present any relevant or pertinent new 

evidence or arguments which had not been previously considered. The Board has held that 

evidence or argument which repeats or duplicates the existing case record does not constitute a 

basis for reopening a case.11 

Appellant also presented no new relevant evidence with her request for reconsideration to 

support her arguments regarding the suitability of the position utilized by OWCP when it issued 

its November 25, 2008 wage-earning capacity decision. She provided a July 16, 2014 report 

from Dr. Hebrard which pertained to a separate claim. Dr. Hebrard did not otherwise address 

 11 Eugene F. Butler, 36 ECAB 393, 398 (1984); see also A.K., Docket No. 15-451 (issued April 13, 2015). 
7

whether appellant had a material change in the nature and extent of her work-related 

conditions.12

Appellant therefore 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 

new and relevant evidence not previously considered. As she did not meet any of the necessary 

regulatory requirements, OWCP properly denied a merit review. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the March 19, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 12 See Betty A. Butler, 56 ECAB 545 (2005) (evidence that does not address the particular issue involved does not 

constitute a basis for reopening a claim).