United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Little Rock, AR, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1568 

Issued: November 12, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On July 7, 2014 appellant, through her attorney, filed a timely appeal from a June 19, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her 

request for reconsideration. As the last merit decision was issued in this case on May 31, 2013, 

more than 180 days prior 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 does not have 

jurisdiction over the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s May 29, 2014 request for 

reconsideration pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant’s attorney contends that the decision was contrary to law and fact. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On March 7, 2013 appellant, then a 53-year-old city carrier, submitted two traumatic 

injury claims pertaining to the same alleged injury of December 6, 2010.2

 In the first claim, she 

stated that on the morning of December 6, 2010 she sustained abrasions and scratches on her 

knees when she fell after turning to enter a yard on Mann Street. The employing establishment 

contended that the alleged injury did not occur in the performance of duty because appellant did 

not report the injury until months after the incident occurred. In the second claim form, appellant 

explained that on December 6, 2010 she sustained injuries to her hands and knees when she 

tripped on a water hose in a yard on Moore Street and fell down. She documented what 

happened and informed Postmaster Paul Frazier, but she was never told to file a claim or 

otherwise report the alleged injury. 

In a March 14, 2013 letter, the employing establishment controverted appellant’s claim 

contending it lacked reliable, probative or substantial value that an injury occurred in the 

performance of duty. It stated that she did not provide any documentation to substantiate that the 

accidents or injuries ever occurred. The employing establishment noted that it received three 

different traumatic injury claims from appellant describing different injuries of June 22, 2009 

and December 6, 2010. 

In a statement, Mr. Frazier, appellant’s postmaster, advised that on November 5, 2010 

appellant only had 11 minutes on her route when she clocked out, stating she had foot problems. 

In an October 25, 2010 hospital discharge instruction, Dr. Robert Breving, a Boardcertified surgeon, reported that appellant was diagnosed and treated in emergency medical care. 

The instructions included fact sheets on plantar fasciitis and celecoxib, an anti-inflammatory 

medication. 

By letter dated April 23, 2013, OWCP advised appellant that the evidence submitted was 

insufficient to establish her claim. It requested additional evidence to establish that the 

December 6, 2010 incident occurred at the time, place and in the manner alleged and that she 

sustained a diagnosed condition as a result of the alleged incident. Appellant did not respond. 

In a decision dated May 31, 2013, OWCP denied appellant’s claim. It found that the 

factual evidence was insufficient to establish that the December 6, 2010 slip and falls occurred at 

the time, place or in the manner alleged. 

In a letter received by OWCP on May 29, 2014, appellant’s counsel requested 

reconsideration. 

In a May 22, 2013 report, Dr. Joseph M. LaCava, a podiatrist, related appellant’s 

complaints of painful bilateral heel pain. He noted that she worked as a postal carrier. 

Dr. LaCava reviewed appellant’s history and conducted an examination. He reported that plantar 

fascia of both feet exhibited mild, moderate pain to palpation. Dr. LaCava also observed 

 2

 Appellant had also filed a previous traumatic injury claim for a June 22, 2009 employment incident (File No. 

xxxxxx289). 
3

excessive pronation of both feet and deformity of the ankle dorsiflexion. He diagnosed bilateral 

plantar fasciitis, heel pain syndrome and calcaneal exostosis. 

In a May 22, 2014 report, Dr. Michael Shane Higginbotham, a Board-certified family 

practitioner, stated that appellant was a patient at his clinic. He reported that she suffered from 

neuropathy and plantar fasciitis, which could be made worse by excessive walking or standing 

on her feet. 

By decision dated June 19, 2014, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant further merit review under 

5 U.S.C. § 8128(a). It determined that the evidence submitted was irrelevant and immaterial to 

the issue in the case. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation.3

 OWCP regulations provide that OWCP may 

review an award for or against compensation at any time on its own motion or upon application. 

The employee shall exercise his or her right through a request to the district office.4

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.5 

A request for reconsideration must also be submitted within one year of the date of 

OWCP decision for which review is sought.6 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.7 If the request is timely but fails to 

meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits.8

 3

 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008). 

4

 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

5 Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued 

December 9, 2008). 

6 Id. at § 10.607(a). 

7 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

8 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
4

ANALYSIS 

Following the May 31, 2013 decision denying her claim, appellant submitted a request 

for reconsideration that was received by OWCP on May 29, 2014. The denial decision 

determined that she submitted insufficient factual evidence to establish that the December 6, 

2010 incidents occurred at the time, place or in the manner alleged. OWCP noted that appellant 

failed to explain why she waited over two years to file a claim and why she did not seek 

immediate medical attention after the alleged falls at work. 

With her reconsideration request, appellant submitted medical reports from Drs. LaCava 

and Higginbotham regarding treatment for her bilateral heel pain, plantar fasciitis and 

neuropathy. These reports, however, are not new or relevant evidence to the underlying factual 

issue regarding whether the December 6, 2010 employment incidents occurred as appellant 

alleged. The Board notes that the submission of evidence that does not address the particular 

issue involved does not constitute a basis for reopening a case.9

 Accordingly, these medical 

reports are insufficient to warrant further merit review under 5 U.S.C. § 8128(a). 

On appeal appellant’s counsel contends generally that OWCP decision was contrary to 

law and fact. The Board notes that appellant has not provided any evidence to establish that 

OWCP improperly denied further merit review of this case. Appellant did not meet any 

requirements of 20 C.F.R. § 10.606(b)(2). She did not submit any evidence with her request for 

reconsideration to establish that OWCP erroneously applied or interpreted a specific point of law 

or advance a relevant legal argument not previously considered by OWCP. Pursuant to 20 

C.F.R. § 10.608(b), OWCP properly declined to reopen the case for review of the merits. 

The Board finds that appellant failed to submit relevant and pertinent new evidence, a 

relevant legal argument not previously considered by OWCP or evidence or argument which 

shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP 

properly refused to reopen her case for further consideration of the merits of her claim under 

5 U.S.C. § 8128. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s May 29, 2014 request for 

reconsideration pursuant to 5 U.S.C. § 8128(a). 

 9 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 
5

ORDER 

IT IS HEREBY ORDERED THAT the June 19, 2014 nonmerit decision of the Office 

of Workers’ Compensation Programs is affirmed. 

Issued: November 12, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board