United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lyndhurst, Ohio, Employer 

__________________________________________ 

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Docket No. 15-1404 

Issued: September 22, 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 June 15, 2015 appellant, through counsel, filed a timely appeal from a May 13, 2015 

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

180 days elapsed from the last merit decision of March 18, 2014 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 lacks jurisdiction over the merits of this claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s March 16, 2015 request for 

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

FACTUAL HISTORY 

On September 28, 2013 appellant, then a 33-year-old city carrier assistant, filed a 

traumatic injury claim alleging that on September 28, 2013 he felt a pop in his elbow and had 

 1

 5 U.S.C. § 8101 et seq.
2

severe pain and numbness from his arms to his fingertips while carrying mail. He stopped work 

and returned on October 21, 2013. 

Appellant was initially treated in the emergency room by Dr. Jason T. Milk, an osteopath 

who specializes in emergency medicine. In a report dated September 28, 2013, Dr. Milk 

reported appellant’s complaints of left arm numbness from the elbow to hand. He noted that 

appellant worked as a mail carrier and felt a “pop” in his elbow when he held a large stack of 

mail. Dr. Milk provided examination findings and diagnosed left elbow pain. 

On September 28, 2013 appellant underwent an x-ray of the left elbow by Dr. Louise 

Milner, a Board-certified diagnostic radiologist, who reported no radiographic evidence of acute 

osseous injury. 

Appellant submitted treatment notes dated September 28, 2013 by Ms. Angela G. 

Mardula, a physician assistant, who treated appellant for elbow strain. He also submitted a 

September 28, 2013 state workers’ compensation claim form. 

In a September 30, 2013 narrative report, Dr. Tim Nice, a Board-certified orthopedic 

surgeon, noted that appellant had vague symptoms in his left arm since April. He noted that 

appellant carried mail and explained that appellant’s job irritated the radial nerve. Upon 

examination, Dr. Nice observed slight weakness in the brachioradialis and extensors of the wrist. 

Tinel’s testing over the radial nerve was positive. X-rays were normal. Dr. Nice reported that 

appellant was not able to return to work. In a prescription note, he opined that appellant was 

totally disabled from work until October 21, 2013 due to a left elbow injury. 

On October 1, 2013 Stephanie Pearson, branch manager at the employing establishment, 

wrote an e-mail controverting appellant’s claim. She stated that appellant filed a traumatic injury 

claim in retaliation of a notice of removal that was issued to him on September 10, 2013. 

In a letter dated October 4, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish his claim. It requested additional medical evidence to demonstrate 

that he sustained a diagnosed condition as a result of the September 28, 2013 employment 

incident. 

By letter dated October 17, 2013, David Mast, a human resource specialist at the 

employing establishment, stated that appellant filed a traumatic injury claim because he believed 

it would stop him from being removed from the employing establishment. He also pointed out 

that appellant initially provided conflicting information when he reported the injury. 

In an October 17, 2013 treatment note, Dr. Matthew Keum, Board-certified in physical 

medicine and rehabilitation, related appellant’s complaints of recent onset of worsening neck 

pain, on the left side, radiating to his left shoulder and upper trapezius area. Upon examination 

of the cervical spine, he observed mildly positive tenderness to palpation and limited range of 

motion on extension and rotation. Examination of the left shoulder demonstrated negative 

impingement and no tenderness. Dr. Keum diagnosed cervical radiculitis, medial epicondylitis 

of the elbow, wrist strain, elbow strain, cervical strain, and strain of unspecified shoulder and 

upper arm. 
3

On October 22, 2013 appellant was treated again by Dr. Nice who reported that appellant 

was unable to work until November 18, 2013. 

In a decision dated November 18, 2013, OWCP denied appellant’s claim. It accepted 

that the September 28, 2013 incident occurred as alleged and that he sustained a diagnosed 

medical condition. OWCP denied the claim because the medical evidence was insufficient to 

establish that his condition was causally related to the accepted incident. 

On December 9, 2013 OWCP received appellant’s request for reconsideration. Appellant 

resubmitted the September 28, 2013 hospital records and Dr. Nice’s medical reports. 

Appellant continued to receive medical treatment from Dr. Nice who, in reports dated 

November 12 and 21, 2013, reported that appellant still had symptoms over the C6 dermatome 

pattern and had C6 radicular symptoms. Dr. Nice noted that a magnetic resonance imaging 

(MRI) scan examination of the cervical spine showed a disc herniation with osteophyte complex 

at C3-4 with neural foraminal narrowing at C4. He reported that appellant carried a mailbag, 

weighing approximately 25 pounds, for work. Dr. Nice recommended that appellant not be 

allowed to carry a mailbag. 

On January 7, 2014 appellant resigned from his employment. 

By letter dated February 11, 2014, Mr. Mast reiterated that the employing establishment 

controverted appellant’s traumatic injury claim. The employing establishment submitted a 

December 9, 2013 memorandum of activity by Special Agent J.T. describing surveillance of 

appellant on Tuesday, November 5, 2013. It also submitted a January 23, 2014 investigation 

report by Assistant Special Agent S.B. 

In a decision dated March 18, 2014, OWCP denied modification of the November 18, 

2013 decision. 

On April 23, 2014 OWCP received appellant’s request for reconsideration. No additional 

evidence was received. 

By decision dated June 3, 2014, OWCP denied appellant’s request for reconsideration 

finding that his request did not meet any of the requirements for further merit review pursuant to 

5 U.S.C. § 8128(a). 

After the June 3, 2014 decision, OWCP received the duplicate copies of September 28, 

2013 records and x-rays of the left elbow. 

On March 16, 2015 OWCP received appellant’s request, through counsel, for 

reconsideration. Counsel stated that he was submitting a new medical report by Dr. Nice. 

In a February 20, 2015 treatment note, Dr. Nice noted that appellant had known disc and 

osteophyte foraminal narrowing disease at C3 and at C4 in his neck. He reported that appellant 

originally carried a mailbag at the employing establishment for five years that weighed 40 

pounds. Dr. Nice noted that appellant currently complained of symptoms in his arms and neck 

with radiation to the superior medial angle of the left scapula with exquisite tenderness over the 
4

scapulae. He noted that appellant now worked as a truck driver but continued to be symptomatic 

and also suffered from headaches. Upon examination, Dr. Nice observed excellent range of 

motion of his cervical spine with tenderness in the extremities. He stated that neurologic 

examination of both upper extremities was normal. Dr. Nice opined that appellant had disc 

disease at C3 and C4. 

Appellant submitted a November 20, 2013 MRI scan report by Dr. Marc Mellion, a 

diagnostic radiologist, who stated that appellant had left paracentral and lateral disc osteophyte 

complex at C3-4 causing moderate focal left paracentral and anterolateral thecal sac effacement, 

moderate left lateral recess, and left neural foraminal stenosis with exiting nerve root 

impingement not excluded. He also resubmitted Dr. Keum’s October 17, 2013 report. 

By decision dated May 13, 2015, OWCP denied appellant’s request for reconsideration 

finding that his request did not meet any of the requirements for further merit review pursuant to 

5 U.S.C. § 8128(a). 

LEGAL PRECEDENT 

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

review an award for or against compensation.2 OWCP’s regulations provide that it may review 

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

employee shall exercise his right through a request to the district office.3

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.4 

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

OWCP’s decision for which review is sought.5 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.6

 If the request is timely but fails to 

 2

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

3

 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). 

4 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). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 
5

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.7

ANALYSIS 

The Board finds that appellant has not established that OWCP erroneously applied or 

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

considered by OWCP, and has not submitted relevant and pertinent new evidence not previously 

considered by OWCP. Appellant has failed to meet one of the three requirements necessary to 

justify a merit review of his claim. 

OWCP had previously denied appellant’s claim finding that the evidence did not 

establish that his diagnosed medical condition was causally related to the September 28, 2013 

employment incident. 

On March 16, 2015 OWCP received appellant’s request, through counsel, for 

reconsideration. 

Along with his reconsideration request, counsel submitted a February 20, 2015 treatment 

note by Dr. Nice, which stated that appellant had known disc and osteophyte foraminal 

narrowing disease at C3 and at C4 in his neck. He reported that appellant originally carried a 

mailbag at the employing establishment for five years that weighed 40 pounds. Dr. Nice 

provided findings on examination and opined that appellant had disc disease at C3 and C4. The 

Board notes that, prior to the last merit decision on March 18, 2014, he submitted a series of 

reports stating that appellant sustained a cervical and left arm condition and discussing that 

appellant carried a heavy mailbag at work. Accordingly, the Board finds that Dr. Nice’s 

February 20, 2015 report does not provide any new, relevant, and pertinent evidence on the issue 

of whether appellant sustained an injury causally related to the September 28, 2013 incident. 

Dr. Nice merely reiterates that his previous findings regarding appellant’s conditions and work 

duties. The Board has found that evidence which is duplicative or cumulative of evidence 

already submitted is insufficient to warrant reopening a claim for merit review.8

 Similarly, 

Dr. Mellion’s November 20, 2013 report also does not provide any new, relevant, and pertinent 

evidence as he does not provide any opinion on causal relationship. 

OWCP also received duplicate copies of reports from September 28, 2013, and another 

copy of Dr. Keum’s October 17, 2013 report. Evidence which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case.9 

On appeal counsel alleges that the May 13, 2015 decision was contrary to fact and law. 

He does not, however, provide any evidence to demonstrate that OWCP erroneously denied 

appellant’s March 16, 2015 request for reconsideration. 

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

8 Joseph A. Brown, Jr., 55 ECAB 542 (2004). 

9 See D.K., 59 ECAB 141 (2007). 
6

Appellant did not submit any evidence along with his request for reconsideration to show 

that OWCP erroneously applied or interpreted a specific point of law, or advances a relevant 

legal argument not previously considered by OWCP. Because he did not meet any of the 

necessary requirements, he is not entitled to further merit review. 

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 his case for further consideration of the merits of his claim pursuant to 

5 U.S.C. § 8128(a). 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s March 16, 2015 request for 

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

ORDER 

IT IS HEREBY ORDERED THAT the May 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 22, 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