United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Savannah, GA, 

Employer 

__________________________________________ 

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Docket No. 15-0927 

Issued: August 2, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 23, 2015 appellant filed a timely appeal from a March 2, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for 

reconsideration. As more than 180 days elapsed from April 3, 2014, the date of the most recent 

merit decision of OWCP, 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 appellant’s claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The law and the facts of the case as set 

forth in the Board’s prior decision are incorporated herein by reference. 

The relevant facts are as follows. Appellant, then a 50-year-old postal support employee 

alleged that she sustained injury to her right elbow on November 5, 2012 when she hit her elbow 

on an iron bin while pulling mail from a slot. By decision dated April 3, 2014, OWCP accepted 

that the incident occurred as alleged, but denied the claim as the medical evidence of record did 

not establish that appellant sustained a right elbow injury on November 5, 2012 causally related 

to the accepted incident. Appellant appealed to the Board. By decision dated October 29, 2014, 

the Board affirmed the denial of the claim finding that appellant had not met her burden of proof 

to establish a traumatic injury in the performance of duty.3 

By letter dated February 12, 2015, received on February 24, 2015, appellant requested 

reconsideration and submitted medical evidence. In a diagnostic report dated April 17, 2013, 

Dr. Matthew Dixon, a Board-certified radiologist, examined the results of a magnetic resonance 

imaging (MRI) scan of appellant’s right elbow. He noted his impression of a small partial tear of 

the extensor carpi radialis brevis tendon origin, with no other significant findings. 

In a duty status report dated April 20, 2013, Dr. Michael Adams, a Board-certified 

surgeon, recommended work restrictions for appellant of no more than 5 pounds of continuous or 

10 pounds of intermittent lifting, no continuous sitting, no continuous standing, no continuous 

walking, no more than one to two hours of kneeling per day, no more than four to six hours of 

bending/stooping per day, no more than one to two hours of twisting per day, no more than two 

to eight hours of pushing/pulling per day, no continuous simple grasping, no more than two to 

six hours of fine manipulation per day, and no more than two to four hours of reaching above the 

shoulder per day. 

By decision dated March 2, 2015, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of her case, under 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a), 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 it; or (3) constitute relevant and pertinent new evidence 

not previously considered by OWCP.4

 Section 10.608(b) of OWCP’s regulations provide that 

when an application for reconsideration does not meet at least one of the three requirements 

 2 Id. 

3

 Docket Nos. 14-1350 and 14-1974 (issued October 29, 2014). 

4

 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 
3

enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration 

without reopening the case for a review on the merits.5

The Board has found that evidence that repeats or duplicates evidence already in the case 

record has no evidentiary value.6

 The Board also has held that the submission of evidence which 

does not address the particular issue involved does not constitute a basis for reopening a case.7

 

While the reopening of a case may be predicated solely on a legal premise not previously 

considered, such reopening is not required where the legal contention does not have a reasonable 

color of validity.8

ANALYSIS 

The Board issued an October 29, 2014 decision finding that appellant had not met her 

burden of proof to establish a traumatic injury in the performance of duty. Appellant had not 

established that her alleged right elbow injury was causally related to the accepted November 5, 

2012 employment incident. On February 12, 2015 she requested reconsideration of the Board.9

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 her 

claim. In her February 12, 2015 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a new and relevant legal 

argument not previously considered. Thus, she is not entitled to a review of the merits of her 

claim based on the first and second above-noted requirements under section 10.606(b)(3). 

The underlying issue is whether appellant met her burden of proof to establish a traumatic 

injury causally related to the accepted employment incident. A claimant may be entitled to a 

merit review by submitting relevant and pertinent new evidence, but appellant did not submit any 

new and relevant evidence in this case. With her request, she submitted reports from Drs. Dixon 

and Adams dated April 17 and 20, 2013, respectively. These documents were previously 

considered by OWCP and were specifically summarized in the Board’s prior decision. As the 

documents were previously considered by OWCP, they did not form a proper basis for 

conducting a merit review of appellant’s claim.10

 5 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

6 See Daniel Deparini, 44 ECAB 657, 659 (1993). 

7 P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB 

180, 187 (2000). 

8 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 

9

 OWCP is not authorized to review Board decisions. Although the October 29, 2014 Board decision was the last 

merit decision, OWCP’s April 3, 2014 decision is the appropriate subject of possible modification by OWCP. See

20 C.F.R. § 501.6(d). 

10 Absent further review by OWCP, the Board’s October 2, 2014 decision is res judicata. See Hugo A. Mentick, 9 

ECAB 628 (1958); see also Evan D. Henderson, Docket No. 05-1852 (issued April 5, 2006). 
4

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

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP, 

or constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for review of the merits 

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 March 2, 2015 is affirmed. 

Issued: August 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board