United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.E., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Greensboro, NC, Employer 

__________________________________________ 

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Docket No. 15-1343 

Issued: November 16, 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 June 1, 2015 appellant filed a timely appeal of a December 5, 2014 nonmerit decision 

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

from the issuance of the most recent merit decision dated October 29, 2014, 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.2

 

ISSUE 

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

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

On appeal appellant argues the merits of her claim. 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the December 5, 2014 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

final decision. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On September 28, 2013 appellant, a 46-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained a bilateral foot injury on September 14, 2013 as a 

result of walking more than eight hours continuously. 

By decision dated November 15, 2013, OWCP denied appellant’s claim as the medical 

evidence was insufficient to establish a causal relationship between her foot condition and the 

September 14, 2013 employment incident. Appellant requested reconsideration and, in a 

decision dated January 23, 2014, OWCP denied modification of its prior decision. 

On May 3, 2014 appellant again requested reconsideration of the merits of her claim. By 

decision dated May 15, 2014, OWCP denied appellant’s request for reconsideration of the merits 

finding that she had not submitted pertinent new and relevant evidence and had not shown that it 

erroneously applied or interpreted a point of law not previously considered by OWCP. 

On July 28, 2014 appellant again requested reconsideration and submitted reports dated 

April 15 and 28, and June 19, 2014 from Dr. Terrill Brown, III, a podiatric surgeon, who 

diagnosed chronic posterior and plantar left heel pain and noted that appellant underwent left 

foot surgery on June 2, 2014. 

By decision dated October 29, 2014, OWCP denied modification of its January 23, 2014 

decision as the medical evidence was insufficient to establish causal relationship. 

On November 25, 2014 appellant again requested reconsideration and submitted a 

narrative statement indicating that she had worked for 8 hours per day with the possibility of 10 

to 12 hours per day with the requirement of walking only 8 to 10 hours per day. She also 

resubmitted Dr. Brown’s April 15 and 28, and June 19, 2014 reports. 

Appellant submitted new reports dated May 6 through September 25, 2014 from 

Dr. Brown who noted that appellant’s left foot pain had improved postsurgery. In his May 6, 

2014 report, Dr. Brown noted that appellant had been diagnosed with insertional Achilles 

tendinitis and plantar fasciitis, left. He noted that appellant was a postal worker with modified 

work restrictions and that appellant had reported that “over the last two to four weeks these 

restrictions, although complied with, no longer provid[ed] her with [the] protection it was 

before.” Appellant advised Dr. Brown that her condition was worsening and often times by the 

end of the day, she had to go home and get off her foot and could not bear weight on it until the 

next morning. 

By decision dated December 5, 2014, OWCP denied appellant’s request for 

reconsideration of the merits finding that she had not submitted pertinent new and relevant 

evidence and had failed to show that OWCP had erroneously applied or interpreted a point of 

law not previously considered by OWCP. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as 

a matter of right; it vests OWCP with discretionary authority to determine whether it will review 
3

an award for or against compensation.3

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).4

 

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

OWCP regulations provide that the evidence or argument submitted by 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

 

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record8

 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.9

 

ANALYSIS 

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

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

Appellant did not submit any evidence to show that OWCP erroneously applied or 

interpreted a specific point of law or advanced a relevant legal argument not previously 

considered by OWCP. In support of her November 25, 2014 reconsideration request, appellant 

submitted a narrative statement and reports dated May 6 through September 25, 2014 from 

Dr. Brown who noted that her left foot pain had improved postsurgery. In his May 6, 2014 

report, Dr. Brown noted that appellant was a postal worker with modified work restrictions 

which were “complied with.” The Board finds that submission of this evidence did not require 

reopening appellant’s case for merit review as it failed to address the issue of causal relationship 

between appellant’s foot condition and the September 14, 2013 employment incident, which was 

the issue before OWCP. Therefore, this evidence does not constitute relevant and pertinent new 

evidence and is insufficient to require OWCP to reopen the claim for consideration of the merits. 

                                                             3

 5 U.S.C. § 8101 et seq. Under section 8128 of FECA, 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 U.S.C. § 8128(a). 

4 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

5

 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009). 

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 

8 See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

9 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
4

Appellant also resubmitted Dr. Brown’s reports dated April 15 and 28, and June 19, 2014 

in support of her request for reconsideration. The Board finds that submission of these reports 

did not require reopening appellant’s case for merit review. As the Board denied her claim based 

on the lack of supportive medical evidence and this report repeats evidence already in the case 

record, it is cumulative and does not constitute relevant and pertinent new evidence.10 Therefore, 

it is not sufficient to require OWCP to reopen the claim for consideration of the merits. 

On appeal appellant argues the merits of her claim. As noted above, the Board lacks 

jurisdiction to review the merits of this case. 

The Board finds that as appellant did not meet any of the necessary requirements, OWCP 

properly denied a further merit review.11 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 16, 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 

                                                             10 See Eugene F. Butler, 36 ECAB 393 (1984). 

11 See L.H., 59 ECAB 253 (2007).