United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Peru, NY, Employer 

__________________________________________ 

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Docket No. 15-1211 

Issued: August 21, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 5, 2015 appellant, through counsel, filed a timely appeal from a January 12, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed between the last merit decision, dated October 16, 2012, and 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 the claim. 

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). 

On appeal counsel argues that the decision is contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board. On April 12, 2012 appellant, then a 55-

year-old rural carrier associate, filed a traumatic injury claim alleging that on January 9, 2012 

she injured her right shoulder and biceps when she slipped while stepping off a porch and her 

shoe fell off of her left foot. 

By decision dated June 21, 2012, OWCP denied appellant’s claim on the basis that she 

failed to establish a causal relationship between her right shoulder and wrist conditions and the 

January 9, 2012 employment incident. Following appellant’s request for reconsideration, on 

October 16, 2012 OWCP denied modification. Appellant again requested reconsideration, which 

OWCP denied in a September 12, 2013 decision. On March 11, 2014 she appealed to the Board. 

By decision dated October 9, 2014 the Board affirmed the September 12, 2013 OWCP decision.2 

The facts and circumstances of the Board’s prior decision are incorporated by reference. 

On August 15, 2014 OWCP received a July 31, 2014 report from Dr. Stephane Mulligan, 

an examining Board-certified orthopedic surgeon, reporting that appellant was seen for an office 

visit on July 8, 2014, and that prior to this visit she was previously seen on July 26, 2012. 

Dr. Mulligan reported that appellant sustained a work injury on January 9, 2012. A review of a 

magnetic resonance imaging (MRI) scan revealed a mildly retracted full thickness supraspinatus 

tendon tear. Dr. Mulligan also diagnosed a subscapularis tendon tear with some biceps medial 

tendon displacement into the joint space. Lastly, he reported fairly good right shoulder function. 

In a letter dated November 25, 2014, counsel requested reconsideration based on new 

evidence which was submitted subsequent to the September 12, 2013 OWCP decision. 

Appellant argued that the newly submitted evidence established that the prior OWCP decision 

should be vacated. 

By decision dated December 9, 2014, OWCP denied reconsideration. It found the 

evidence submitted was insufficient to warrant a merit review. 

Counsel argued in a December 29, 2014 letter that the December 9, 2014 OWCP decision 

was legally incorrect as appellant filed a request for reconsideration of OWCP’s September 12, 

2013 decision based on new evidence submitted following that decision. 

By decision dated January 12, 2015, OWCP denied reconsideration finding no new and 

relevant evidence was submitted and no substantive legal question was raised. 

 2

 Docket No. 14-908 (issued October 9, 2014). 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

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.4 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.5

 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.6

 

ANALYSIS 

The Board finds that OWCP did not abuse its discretion when it declined to reopen 

appellant’s claim for further consideration of the merits, pursuant to 5 U.S.C. § 8128(a). 

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 December 29, 2014 request for reconsideration, appellant failed to show that OWCP had 

erroneously applied or interpreted a specific point of law. She also failed to advance a new and 

relevant legal argument not previously considered by OWCP. 

Counsel argued that Dr. Mulligan’s July 8, 2014 report supported vacating the 

September 12, 2013 OWCP decision. Dr. Mulligan diagnosed a subscapularis tendon tear with 

some biceps medial tendon displacement into the joint space and she reported that appellant 

sustained a work injury on January 9, 2012. This report, while new, is not relevant to the issue 

on reconsideration because it fails to explain how the diagnosed conditions were causally related 

to the accepted January 9, 2012 employment incident. 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.7

 

 3

 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. 

4

 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). 

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

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

598 (2006).

7

 S.J., supra note 5; D’Wayne Avila, 57 ECAB 642 (2006). 
4

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

C.F.R. §10.606(b)(3) and, thus, OWCP properly declined to reopen her claim for further merit 

review.8 

On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons stated above, the Board finds his arguments are not substantiated.

CONCLUSION 

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

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

ORDER 

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

Compensation Programs dated January 12, 2015 is affirmed. 

Issued: August 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 

(2006) (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).