United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.D., Appellant 

and 

U.S. POSTAL SERVICE, NORTH GRAND 

POST OFFICE, Santa Ana, CA, Employer 

__________________________________________ 

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Docket No. 14-1273 

Issued: January 23, 2015 

Appearances: Case Submitted on the Record

Jeffrey Doyle, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 12, 2014 appellant, through her representative, filed a timely appeal from a 

November 25, 2013 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying her request for reconsideration. Because more than 180 days elapsed between 

the last merit decision dated October 26, 2012 to the filing of this appeal and 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 case. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 7, 2010 appellant, then a 59-year-old clerk, filed an occupational disease 

claim alleging that on November 18, 2009 she first realized that low back pain was due to her 

repetitive work duties. 

In her January 7, 2010 statement, appellant attributed her low back pain to years of 

working at the employing establishment including the computer forward system (CFS) and her 

duties of sitting and keying. Accompanying her claim and statement, appellant provided a 

diagram of her workstation. 

In a January 7, 2010 duty status Form CA-17, Dr. Hosea Brown, III, a treating Boardcertified internist, diagnosed lumbosacral radiculitis and provided work restrictions. 

By letter dated January 13, 2010, the employing establishment controverted the claim and 

submitted statements from Samantha Hoang, Nancy Yan, and Richard Dolfi, supervisors. 

Ms. Hoang, Ms. Yan, and Mr. Dolfi, indicated in their statements that at a meeting with appellant 

regarding her current claim that appellant informed them that she was trying to reopen prior 

claims, which had been closed and her injury had nothing to do with her work at CFS. 

By letter dated February 4, 2010, OWCP informed appellant that the evidence of record 

was insufficient to establish her claim. Appellant was advised as to the medical and factual 

evidence required and given 30 days to provide this information. 

In response to OWCP’s request, appellant submitted her statement and a December 30, 

2009 report from Dr. Brown who provided an employment, medical and injury history, and 

physical examination findings. Dr. Brown diagnosed lumbar radiculopathy/radiculitis and 

permanent lumbosacral degenerative disc disease aggravation. A physical examination revealed 

decreased lumbosacral range of motion and significant paraspinal lumbosacral musculature 

spasm. A review of electromyographic studies showed chronic left L5 radiculopathy. He 

attributed appellant’s back condition to her 28 years of work at the employing establishment and 

her duties as a distribution clerk. 

In her February 16, 2010 statement, appellant noted that her request for a union 

representative to be present during her meeting regarding her claim had been denied by 

Mr. Dolfi. She provided a brief description of her job duties and injury claims which had 

occurred prior to 2007 when she was transferred to CFS. Appellant noted that, following her 

meeting with Ms. Hoang, Ms. Yan and Mr. Dolfi, she believed a new claim should be filed as 

she believed her work at CFS aggravated or caused her condition. She alleged that at the CFS 

she was required to sit and work on a computer eight hours a day. According to appellant the 

position at CFS required her to turn and twist which aggravated her back condition. She also 

alleged that she was required to lift heavy boxes and bundles in her position at CFS. 

By decision dated April 14, 2010, OWCP denied appellant’s claim on the grounds that 

she failed to establish fact of injury. It noted that she had been informed that she needed to 

explain the discrepancy between her claim that her injury had been caused by her work at CFS 
3

and the statement she made to management that her current condition was unrelated to her work 

at CFS. 

On May 25, 2010 OWCP received appellant’s April 14, 2010 request for reconsideration 

and medical evidence. 

In a May 5, 2010 report, Dr. Brown opined that “[it] is a well-known medical fact that 

prolonged sitting” can permanently aggravate a preexisting lumbosacral degenerative disc 

condition. He stated that the medical evidence was clear that appellant’s duties as a CFS clerk 

included repetitive twisting and turning and prolonged periods of sitting. 

On April 26, 2010 the employing establishment controverted appellant’s claim and 

provided copies of her limited-duty position. It noted that Dr. Brown’s description of appellant’s 

work duties regarding keying and stacking tubs of mail was inaccurate. 

In a May 5, 2010 statement, appellant stated that her work description had been the same 

since becoming a rehabilitated clerk 17 years ago and prior to her current work at CFS in 2007. 

She stated that her current position at CFS required her to sit for eight hours per day except for 

breaks and her duties involved repetitive keying. 

A statement signed by Cecilia Manzanares, David Daniels, Wanda Ferguson, and Regina 

Tripp described the processing of flats and parcels at CFS. 

A June 11, 2010 statement signed by Ms. Hoang, Ms. Yan, and Mr. Dolfi provided a 

description of appellant’s work duties at the CFS. They stated that appellant’s work assignment 

at CFS was within her work restrictions and that it did not require any twisting, pushing, 

bending, or pulling. In addition, they stated that appellant was not required to sit the whole time 

as she could stand to process the mail. 

On July 7, 2010 Ms. Hoang, Ms. Yan, and Mr. Dolfi reviewed the statement provided by 

Ms. Manzanares, Mr. Daniels, Ms. Ferguson, and Ms. Tripp. They stated that none of the duties 

described in the statement were applicable to appellant and that flat processing does not require 

repetitive back twisting as alleged by appellant. 

By decision dated August 4, 2010, OWCP denied modification. 

On May 16 and 23, 2011 appellant requested reconsideration and submitted medical and 

factual evidence. 

In a November 10, 2008 report, Dr. Zafar S. Khan, a treating Board-certified orthopedic 

surgeon, noted that appellant was first seen on September 10, 2007 for back and leg complaints. 

He noted that appellant’s back pain and prior work-related back injury had been aggravated by 

twisting and extended periods of sitting. 

An undated statement signed by coworkers, including Ms. Manzanares, Josephine Sakim, 

Ms. Ferguson, Karen Woods, and Kiet Huang, provided a description of mechanized terminals 

and nonmechanized terminals. 
4

In an April 9, 2011 statement, Mr. Huang indicated that in 2007 he was an on-the-job 

instructor and remembered helping appellant carry flats and parcels to her workstation terminal. 

He noted that these parcels and flats weighed from 1 to 40 pounds. 

In an April 25, 2011 statement, Ms. Manzanares stated she had been a supervisor in the 

CFS unit from January to May 2008. She described the work for nonmechanized terminals as 

requiring constant bending to lift 775 mail tubs and turning and twisting while keying in mail. 

Ms. Manzanares stated that appellant was assigned on a daily basis to this operation since 

arriving in 2007. She stated that it would be impossible to key in mail on the terminals while 

standing. 

In an April 29, 2011 statement, Ms. Ferguson stated that appellant had been a clerk since 

2007 at CFS where she keyed in mail on the flat forwarding terminal system. 

By decision dated August 15, 2011, OWCP denied modification. 

On July 24, 2012 appellant requested reconsideration. In support of her claim, she 

resubmitted evidence previously submitted. 

Appellant submitted a copy of a July 17, 2007 notice of recurrence (Form CA-2a) with an 

injury date of March 30, 1990 under OWCP File No. xxxxxx500.2

 She noted that she did not 

stop working following the March 30, 1990 injury and referred to a “Dr. Gibson,” who 

reportedly had set medical restrictions for her. Appellant claimed that her low back pain was 

employment related and that she was trying to reopen her claim under OWCP File No. 

xxxxxx500. 

In a July 25, 2012 statement, appellant denied stating that her current claim had nothing 

to do with her duties at CFS. Instead she alleged that her supervisors misinterpreted her as she 

had stated that her duty status form, which concerned restrictions following her surgery, had 

nothing to do with the filing of her current claim. Appellant again reiterated that she sustained a 

new work injury which is why she filed the current claim. 

By decision dated October 26, 2012, OWCP denied modification. 

On October 4, 2013 appellant requested reconsideration and submitted modified job 

offers from 1996, 1997, 2007, and 2008. On October 8, 2013 OWCP received a previously 

submitted November 10, 2008 report from Dr. Khan and factual evidence as set forth below. 

In her statement, which was cosigned by her representative, appellant provided a history 

of responsibilities and job status prior to 2007 and the conditions at CFS that she alleged caused 

her lower back injury. She contended that the job offer at CFS in 2007 was not based on her 

work restrictions. Appellant listed her medical treatment including lower back surgery on 

October 17, 2007 and light-duty jobs at CFS for the period October 17, 2007 through January 7, 

 2

 The record reveals that on August 23, 1990 OWCP accepted appellant’s occupational disease claim for a 

temporary aggravation of lumbar spondylosis. 
5

2010, when she filed her current occupational disease claim. In concluding she provided a brief 

description of her work conditions during the period July to October 2007. 

In an October 22, 2013 statement, Ms. Hoang responded to appellant’s appeal letter. She 

denied appellant’s allegations that she was offered a CFS job in 2007 without medical 

documentation and noted that appellant did not file a claim until January 7, 2010. Ms. Hoang 

stated that appellant was only assigned to flat forwarding and never was assigned to dispatching 

or parcel work. Next, she related that employees were assigned to keying if they knew how to 

key and they were not required to load or dispatch their own mail. 

By decision dated November 25, 2013, OWCP denied reconsideration.3

 It noted that 

appellant had filed a claim for a back injury under OWCP File No. xxxxxx500, that the claim 

had been accepted for temporary aggravation of lumbar spondylosis and that her claims for a 

recurrence of disability had been denied in July 2007 and February 2009. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP’s regulations provide that 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.5 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.6 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.7

ANALYSIS 

On January 7, 2010 appellant filed a claim for an occupational disease injury, which 

OWCP denied by decisions dated April 14 and August 4, 2010, August 15, 2011 and 

October 26, 2012. OWCP found that she failed to establish fact of injury as she initially stated 

that her injury was due to her current job at CFS and later stated that it was not. On October 4, 

 3

 The Board notes that, following the November 25, 2013 decision, OWCP received additional evidence. 

However, the Board may only review evidence that was in the record at the time OWCP issued its final decision. 

See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); 

G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 

4

 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that 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

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218, issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

6 Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7 Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
6

2013 appellant disagreed with OWCP’s October 26, 2012 decision and requested 

reconsideration. 

The issue presented 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 the claim. 

In her October 4 2013 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. She did not advance a new and 

relevant legal argument not previously considered. Appellant reiterated her arguments that her 

current condition was due to her job duties at CFS and at no time did she state that she was trying 

to reopen a previously closed claim. She also reargued that her job duties at CFS were not 

within her work restrictions. 

In her most recent narrative, appellant provided a history of responsibilities and job status 

prior to 2007 and the conditions at CFS that she alleged caused her lower back injury. She 

contended that the job offer at CFS in 2007 was not based on her work restrictions. Appellant 

listed her medical treatment including lower back surgery on October 17, 2007 and light-duty 

jobs at CFS for the period October 17, 2007 through January 7, 2010, when she filed her current 

occupational disease claim. In concluding, she provided a brief description of her work 

conditions during the period July to October 2007. 

A claimant may be entitled to a merit review by submitting pertinent new and relevant 

evidence or new argument, but appellant did not submit any pertinent new and relevant evidence 

or argument in this case. In support of her claim, appellant submitted modified job offers from 

1996, 1997, 2007, and 2008, and her statement. The Board notes that submission of this 

statement and the modified job offers did not require reopening appellant’s case for merit review. 

OWCP denied her claim finding that she had failed to establish fact of injury. Neither the 

modified job offers nor appellant’s statement describing her low back surgery on October 17, 

2007 and the light jobs she held is relevant and pertinent to the underlying issue in this case, i.e.,

that her job duties required her to perform repetitive work; she did not address the 

inconsistencies in the factual evidence. Thus, the submissions were not sufficient to require 

OWCP to reopen her claim for consideration of the merits.8

Appellant also submitted a November 10, 2008 report by Dr. Zahar which had been 

previously submitted and considered by OWCP. The Board has held that 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 Appellant did not submit any pertinent new and relevant factual 

evidence addressing this issue. Thus, OWCP properly denied her request for reconsideration 

As appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3), pursuant 

to 20 C.F.R. § 10.608, OWCP properly denied her request for reconsideration of the merits of 

her case. 

 8 See James W. Scott, 55 ECAB 606 (2004). 

9 E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007); D’Wayne Avila, 57 ECAB 

642 (2006). 
7

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 25, 2013 is affirmed. 

Issued: January 23, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board