United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 14-342 

Issued: May 16, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On December 2, 2013 appellant, through his attorney, filed a timely appeal from an 

August 9, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) 

denying his request for reconsideration.1

 Pursuant to the Federal Employees’ Compensation 

Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of 

this case.3

 1

 The last merit decision in this case was the May 28, 2013 decision, which denied his traumatic injury claim. For 

final adverse decisions of OWCP issued on or after November 19, 2008, a claimant must file an appeal within 180 

days of the decision. 20 C.F.R. § 501.3(e). Because more than 180 days elapsed from the most recent merit 

decision dated May 28, 2013 to the filing of this appeal on December 2, 2013, the Board lacks jurisdiction to review 

the merits of this case. 

2

 5 U.S.C. § 8101 et seq.

3

 The Board notes that appellant submitted additional evidence following the August 9, 2013 nonmerit decision. 

Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, 

the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 

ECAB 126 (2005). Appellant may submit that evidence to OWCP with a request for reconsideration. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s May 30, 2013 request for 

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

FACTUAL HISTORY 

On March 21, 2013 appellant, then a 54-year-old parcel post machine distribution 

operator, filed a traumatic injury claim alleging that on March 15, 2013 he sustained a back 

injury when he keyed mail in the performance of duty. He stopped work on March 18, 2013 and 

filed for disability compensation.4 

In a March 27, 2013 letter, the employing establishment controverted appellant’s claim 

contending that insufficient evidence was submitted to establish that he experienced the 

employment incident in the manner alleged. Further, it noted the lack of medical evidence and 

that he sustained a diagnosed condition causally related to the alleged employment incident. 

In a report dated March 15, 2013, Dr. W. Kent Soderstrum, Board-certified in internal 

and occupational medicine, related a history that on December 23, 2012 appellant felt a pull in 

his lower back when he pulled a cage full of mail packages out of the sorter machine. 

Appellant’s condition improved and he returned to regular work on February 15, 2013. When at 

work the prior evening, he again experienced discomfort but denied an identifiable incident 

associated with his pain. Upon examination of appellant’s lower back, Dr. Soderstrum observed 

tenderness over the right paralumbar musculature at the L4-5 level. Deep tendon reflexes were 

normal in both the patella and Achilles tendon bilaterally. Dr. Soderstrum diagnosed lumbar 

strain and recommended appellant remain off work. He submitted additional treatment notes. 

Dr. Soderstrum prescribed physical therapy. 

By letter dated April 18, 2013, OWCP advised appellant that the evidence submitted was 

insufficient to establish his claim and requested additional evidence. 

In May 6 and 7, 2013 reports, Dr. Soderstrum stated that on March 15, 2013 appellant 

was examined for complaints of a recurrence of low back pain. He noted that appellant sustained 

an injury on December 23, 2012, received medical treatment and returned to work on 

February 15, 2013. Dr. Soderstrum related that on March 15, 2013 appellant experienced 

twinges of discomfort and severe back pain at work in the same place as his previous injury. 

Appellant denied any identifiable incident associated with exacerbations of his pain. 

Dr. Soderstrum initially attributed appellant’s condition as a continuation of his previous injury 

but was later advised by OWCP that it should be considered a new injury. Accordingly, he 

reported that the correct date of injury was March 15, 2013 unless OWCP considered this to be a 

recurrence of his previous December 23, 2012 low back injury. Upon examination of the lower 

back, Dr. Soderstrum observed no tenderness or alteration in sensitivity to light touch. Deep 

 4

 The record reveals that appellant had filed three previous traumatic injury claims for an August 22, 2000 injury 

(File No. xxxxxx025), a December 4, 2007 injury (File No. xxxxxx740) and a December 23, 2012 injury (File No. 

xxxxxx845). 
3

tendon reflexes were normal and range of motion demonstrated no discomfort. Dr. Soderstrum 

recommended two more weeks of physical therapy. 

In a decision dated May 28, 2013, OWCP denied appellant’s traumatic injury claim. It 

accepted that the March 15, 2013 incident occurred as alleged but denied the claim finding 

insufficient medical evidence to establish that the back condition was causally related to the 

accepted incident. 

By appeal request form dated May 30, 2013, appellant requested reconsideration. 

In an April 30, 2013 report, Dr. Randy Plona, an osteopath, who specializes in 

manipulative therapy, stated that on April 30, 2013 appellant had an appointment with 

Dr. Soderstrum, who was unavailable. He advised appellant to reschedule his appointment. 

In a June 7, 2013 report, Dr. Soderstrum described appellant’s previous 

December 23, 2012 injury and medical treatment. He related that on March 15, 2013 appellant 

was keying mail and pulling packages when he felt pain in his lower back that radiated into his 

upper back. It was similar to the back pain appellant previously experienced. Dr. Soderstrum 

initially attributed appellant’s condition as a continuation of the previous injury but OWCP 

advised him that it was considered a new injury. 

By decision dated August 9, 2013, OWCP denied appellant’s request for reconsideration 

finding that the evidence did not warrant further merit review under 5 U.S.C. § 8128(a). It found 

that the evidence submitted was irrelevant or immaterial to the claim. 

LEGAL PRECEDENT 

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

to review an award for or against compensation.5 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 or her right through a request to the district Office.6

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.7

 

 5

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

6

 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). 

7 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). 
4

A request for reconsideration must be submitted within one year of the date of OWCP’s 

decision for which review is sought.8 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.9

 If the request is timely but fails to 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.10

ANALYSIS 

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

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

considered by OWCP; and he has not submitted relevant and pertinent new evidence not 

previously considered by OWCP. 

By decision dated May 28, 2013, OWCP denied appellant’s traumatic injury claim 

finding that the medical evidence did not establish that his back condition was causally related to 

the accepted March 15, 2013 employment incident. In an appeal request form dated 

May 30, 2013, appellant requested reconsideration. 

Appellant submitted an April 30, 2013 report by Dr. Plona, who advised appellant to 

reschedule a medical appointment. He also submitted a June 7, 2013 report by Dr. Soderstrum. 

Although the reports were not previously considered by OWCP, they do not provide any new or 

relevant evidence to the underlying medical issue of whether appellant’s back condition resulted 

from the March 15, 2013 employment incident. Dr. Plona merely advised appellant to 

reschedule an appointment. This is not relevant to the underlying issue of causal relation. In 

addition, Dr. Soderstrum repeated his previous reports that appellant experienced back pain at 

work on March 15, 2013. The Board notes that the submission of evidence that is duplicative of 

prior reports does not constitute a basis for reopening a case.11 The Board finds that 

Dr. Soderstrum’s and Dr. Plona’s reports do not constitute relevant or pertinent evidence with 

respect to the medical issue. 

Appellant did not meet any requirements of 20 C.F.R. § 10.606(b)(2). He 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. Pursuant to 20 C.F.R. § 10.608(b), OWCP properly declined to reopen 

the case for review of the merits. 

 8 Id. at § 10.607(a). 

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

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

11 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 
5

CONCLUSION 

The Board finds that OWCP properly denied appellant’s May 30, 2013 request for 

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

ORDER 

IT IS HEREBY ORDERED THAT the August 9, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 16, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board