United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 15-1569 

Issued: October 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 14, 2015 appellant, through counsel, filed a timely appeal from a March 17, 2015 

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

180 days has elapsed from December 2, 2014, the date of the most recent OWCP merit decision, 

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 denied appellant’s request for reconsideration of 

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

FACTUAL HISTORY 

On November 22, 2013 appellant, then a 29-year-old mail handler, filed a recurrence of 

disability claim (Form CA-2a) alleging that on November 9, 2013 she had a recurrence of a 

 1

 5 U.S.C. § 8101 et seq. 
2

December 12, 2009 employment injury (right knee contusion) when her right knee buckled as 

she bent down to put mail into a tray. OWCP determined that it was a claim for a new injury and 

developed it as a new traumatic injury claim.2

 Appellant stopped work on November 10, 2013. 

Appellant submitted a June 16, 2013 claim for compensation (Form CA-7) requesting 

compensation for November 16 through December 13, 2013. 

By letter dated January 8, 2014, OWCP notified appellant that the evidence was 

insufficient to establish her claim. Appellant was instructed to complete a questionnaire 

regarding the factual element of her claim and also advised of the type of medical evidence 

needed. 

By decision dated February 14, 2014, OWCP denied appellant’s claim because medical 

evidence did not establish that a condition was diagnosed in connection with the claimed work 

event. 

In a March 5, 2014 letter, appellant, through her attorney, requested an oral telephone 

hearing before an OWCP hearing representative. 

In a November 25, 2013 attending physician’s report (Form CA-20), Dr. David Neuman, 

a Board-certified orthopedic surgeon, advised that appellant previously had a right knee 

arthroscopy which caused a consequential left knee derangement. He checked a box marked 

“yes” to indicate that appellant’s condition was caused or aggravated by employment activity. 

In a February 6, 2014 report, Dr. Neuman advised that appellant sustained a work-related 

twisting injury on November 9, 2013 as she moved a tray of mail to a low shelf. He noted that 

her left knee began giving out and she over pressured it. Dr. Neuman advised that prior to the 

injury appellant complained of left knee pain that arose with overuse due to a previous right knee 

injury at work. On physical examination he found fullness in the left knee in contrast to the right 

knee, well-healed arthroscopic wounds in the right knee, warmth and fullness noted in the left 

knee upon palpation, 115 degrees of active flexion the left in contrast to 130 degrees on the right, 

greater weight bearing to the right side, and clicking when standing from a squatting position. 

Dr. Neuman assessed internal derangement of the left knee, pain, stiffness, and symptomatic 

synovitis. He advised that appellant’s left knee conditions occurred because of the November 9, 

2013 work incident and that it was an exacerbation of a previous osteoarthrosis condition. 

In an accompanying February 6, 2014 attending physician’s report, Dr. Neuman advised 

that appellant had a twisting and over-impact injury to the left knee. He assessed internal 

derangement and pain of the left knee and noted that appellant previously sustained an overuse 

injury to the right knee at work. Dr. Neuman checked a box marked “yes” to indicate that 

appellant’s condition was caused or aggravated by employment activity. He advised that 

appellant was unable to work and needed physical therapy and stretching. In a May 30, 2014 

disability status report, Dr. Neuman advised that appellant was totally incapacitated from 

February 14 through April 7, 2014. 

 2

 The claim for the December 12, 2009 employment injury in claim number xxxxxx299 is not presently before the 

Board. 
3

In a May 27, 2014 disability status report, Dr. Joyce Goldenberg, a Board-certified 

physiatrist, advised that appellant was unable to work from April 8 through July 6, 2014. In a 

June 16, 2014 attending physician’s report, she advised that appellant injured her right knee 

while working as a mail handler at the employing establishment. Dr. Goldenberg checked a box 

marked “yes” to indicate that appellant’s condition was caused or aggravated by the employment 

incident. 

On September 9, 2014 a telephone hearing took place. Counsel argued that 

Dr. Neuman’s February 6, 2014 report was sufficient to establish causal relationship. Appellant 

clarified that she injured both her right and left knee as a result of the November 9, 2013 

employment incident. She explained that her right knee gave out when she bent down to put 

mail in a bin, causing her to shift her weight to the left knee which then caused the left knee to go 

out as well. 

In a December 2, 2014 decision, an OWCP hearing representative affirmed the denial of 

appellant’s traumatic injury claim because medical evidence in support of causal relationship did 

not contain adequate medical rationale. 

By letter dated February 20, 2014, appellant, through counsel, requested reconsideration. 

In support of the request, appellant submitted additional evidence. In an October 8, 2014 report, 

Dr. Eric Sax, a Board-certified diagnostic radiologist, advised that magnetic resonance imaging 

(MRI) scans of the right knee revealed severe chondromalacia patella and blunted free margin of 

the anterior horn of the medial meniscus raise with the possibility of a radial tear. A right knee 

x-ray also from October 8, 2014 was unremarkable. 

Multiple progress reports from Dr. Neuman were submitted. In a November 7, 2013 

report, Dr. Neuman advised that there was fullness and swelling in the knees and assessed 

postoperative atrophy, deconditioning, pain, stiffness, and weakness. He noted that the right 

knee condition occurred because of a December 2009 work injury and requested that the left 

knee be included as a consequential injury. In a January 27, 2014 report, Dr. Neuman advised 

that appellant related that she was experiencing increased left knee pain following right knee 

surgery on October 12, 2011 and that she had a twisting injury to the left knee in 

November 2013. He noted that appellant had a temporary total disability because of the right 

knee condition that occurred as a result of the December 12, 2009 work injury. In an 

October 20, 2014 report, Dr. Neuman evaluated appellant’s right knee. 

By decision dated March 17, 2015, OWCP denied appellant’s request for reconsideration 

without a merit review. 

LEGAL PRECEDENT 

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

OWCP’s regulations provide that the evidence or argument submitted by a claimant must either: 

(1) show that it 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 
4

evidence not previously considered by OWCP.3 Where the request for reconsideration fails to 

meet at least one of these standards, OWCP will deny the application for reconsideration without 

opening the case for a review of the merits.4

ANALYSIS 

In a December 2, 2014 decision, an OWCP hearing representative affirmed the denial of 

appellant’s claim because medical evidence did not establish that the diagnosed conditions were 

causally related to the alleged work incident. Appellant submitted a timely request for 

reconsideration received by OWCP on February 20, 2015, which was denied without a merit 

review. 

The Board finds that OWCP properly denied appellant’s request for reconsideration 

without further merit review. The underlying issue in this case is whether appellant established 

that the November 9, 2013 work incident to her right knee caused or contributed to a diagnosed 

medical condition. This is a medical issue. OWCP’s December 2, 2014 decision informed 

appellant that the medical evidence was insufficient to establish that her right knee condition was 

caused by the alleged work incident. In support of reconsideration, appellant submitted 

diagnostic and progress reports. However, these reports do not constitute relevant and pertinent 

new evidence. As the diagnostic reports do not address causal relationship, they are not relevant 

to the issue of causation. Dr. Neuman’s November 7, 2013 report predates the claimed work 

injury and his October 20, 2014 report fails to mention the November 9, 2013 work incident. 

Therefore, they are not relevant to the issue of whether the November 9, 2013 incident caused 

the diagnosed conditions. Dr. Neuman January 27, 2014 report mentions a twisting injury to the 

left knee at work in November 2013. However this report is irrelevant because it repeats the 

content of Dr. Neuman’s February 6, 2014 report. The Board has held that evidence or argument 

that repeats or duplicates evidence previously of record has no evidentiary value and does not 

constitute a basis for reopening a case.5

 

Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a 

specific point of law nor advanced a relevant legal argument not previously considered by 

OWCP. Because she failed to meet one of the standards enumerated under section 8128(a) of 

FECA, she was not entitled to further merit review of her claim. 

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). 

 3 E.K., Docket No. 09-1827 (issued April 27, 2010). See 20 C.F.R. § 10.606(b)(3). 

4 L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.606(b). 

5 J.P., 58 ECAB 289 (2007). 
5

ORDER 

IT IS HEREBY ORDERED THAT the March 17, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board