United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Highland, IN, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1175 

Issued: September 28, 2015 

Appearances: Case Submitted on the Record

Joseph E. Allman, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 29, 2015 appellant, through counsel, filed a timely appeal from a November 3, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the filing of this appeal and the last merit decision issued on 

August 2, 2013, 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 claim.2

 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 

2

 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY 

On February 15, 2013 appellant, then a 55-year-old mail carrier, filed a recurrence claim 

(Form CA-2a) alleging that he sustained a recurrence of disability on January 30, 2013.3

 He 

stated that he experienced a right knee condition due to walking, twisting, and repetitive stair 

climbing. Appellant stopped work on January 30, 2013. 

In a March 14, 2013 letter, OWCP advised appellant that his claim was being developed 

as a new occupational disease claim. It further informed him to provide a medical report 

containing a physician’s opinion supported by a medical explanation as to how work factors 

caused or aggravated a diagnosed condition. 

A diagnostic report reflects that x-rays were performed on appellant’s right knee and 

oblique on February 26, 2011. Dr. Shodhan Patel, a Board-certified radiologist, related that 

appellant presented with pain along the lateral aspect of his right knee. X-rays revealed mild loss 

of joint space involving the right knee joint and patellofemoral joint. Associated small joint 

effusion was observed. On January 11, 2013 Dr. Donald Anderson, Board-certified in nuclear 

medicine and diagnostic radiology, recorded moderate degenerate changes at the medial 

compartment joint space. He observed no fracture, dislocation, or bone destruction. 

In a May 11, 2011 medical report, Dr. Judson Wood Jr., a Board-certified orthopedic 

surgeon, reported that appellant presented post arthroscopy. He noted that appellant continued to 

suffer recurrent effusions and advised him of the risk of future effusions. Dr. Wood, in a 

December 21, 2011 attending physician’s report (Form CA-20), noted that appellant suffered 

degenerative joint disease and checked a box “yes” to indicate that the condition was caused or 

aggravated by employment. 

In a February 20, 2013 report, Dr. Shailesh Bhatt, a Board-certified diagnostic 

radiologist, advised that x-rays of appellant’s knees revealed osteoarthritic changes of both knees 

with significant narrowing in the medial joint compartment of the right knee. 

In an April 5, 2013 attending physician’s report (Form CA-20), Dr. Wood related that 

appellant suffered right knee pain and swelling and referenced the right knee arthroscopy. He 

diagnosed degenerative joint disease and checked a box “yes” to indicate that the condition was 

caused or aggravated by his employment. 

By decision dated April 18, 2013, OWCP denied appellant’s claim finding that the 

evidence was insufficient to establish that the events occurred as alleged. 

Appellant requested reconsideration on May 13, 2013. In June 27, 2012 progress notes, 

Dr. Wood advised that appellant was status post arthroscopic partial medial meniscectomy on his 

right knee. Examination revealed moderate size effusion and joint line tenderness. Dr. Wood 

diagnosed right knee pain, chronic effusion, and early degenerative changes. He cleared 

appellant for duty. 

 3

 Appellant claimed that the original injury had occurred on February 18, 2011. The Board does not have access 

to the prior claim. 
3

Progress notes from February 20, 2013 indicated that Dr. Wood had discussed total knee 

replacement surgery with appellant. Upon examination, he observed mild varus deformity joint 

line tenderness, especially medial to the patellofemoral crepitus. X-rays revealed significant 

degenerative joint disease. Dr. Wood indicated his concern that appellant would have difficulty 

returning to work postsurgery. 

Appellant, in an April 21, 2013 statement, described his duties as ascending and 

descending stairs and various terrains, standing, kneeling, twisting, and carrying mail. He 

alleged that performing these duties 40 hours per week for 20 years placed “constant wear [and] 

tear and pressure” on his knees and joints. 

In a May 3, 2013 report, Dr. Wood noted treating appellant’s right knee since 

March 2011. He advised that appellant had arthroscopic surgery with a partial medial 

meniscectomy on his right knee. Dr. Wood related that appellant returned to work but developed 

significant pain and discomfort in the knee. He opined that the walking, twisting, and standing 

associated with appellant’s work contributed to his degenerative joint disease. Dr. Wood 

diagnosed severe degenerative joint disease and indicated that this would necessitate a total knee 

replacement in the near future. He attributed appellant’s “line of work” to his diagnosis. 

In a July 10, 2013 statement, appellant declared that he had stopped working on 

May 28, 2013. He further indicated frustration that his claim was not developed as a recurrence. 

By decision dated August 2, 2013, OWCP reviewed the merits of appellant’s claim. It 

modified its prior decision to find that the factual component of fact of injury had been 

established. However, OWCP denied appellant’s claim finding that the medical evidence was 

insufficient to establish causal relationship. 

In a February 19, 2013 duty status report, Dr. Wood diagnosed right knee degenerative 

joint disease and provided that appellant could return to light-duty work on the same date.4

On July 31, 2014 appellant, through counsel, filed a request for reconsideration. 

Appellant’s counsel contended that Dr. Wood “clearly explained his unequivocal opinion that 

[appellant’s] accepted conditions and total knee replacement surgery were necessitated by his 

work as a mail carrier.” 

In a November 3, 2014 decision, OWCP denied appellant’s request finding that appellant 

did not present pertinent new evidence warranting further merit review. 

LEGAL PRECEDENT 

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

OWCP regulations provide that 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 

 4

 The Board notes that OWCP also received copies of documents that were originally submitted prior to the 

August 2, 2013 merit decision. This included a resubmission of Dr. Wood’s April 5 and May 3, 2013 reports. 
4

considered by OWCP.5

 Where the request for reconsideration fails to meet at least one of these 

standards, OWCP will deny the application for reconsideration without reopening the case for 

review of the merits.6

ANALYSIS 

On August 2, 2013 OWCP denied appellant’s claim, finding that he had failed to 

establish that his claimed right knee condition was causally related to his accepted work duties. 

Appellant’s counsel timely requested reconsideration and submitted evidence and argument. 

OWCP denied the request on November 3, 2014, finding that appellant did not present pertinent 

new evidence warranting further merit review. 

The Board finds that OWCP correctly denied appellant’s reconsideration request. The 

issue on appeal is whether appellant established that his work duties caused or contributed to his 

claimed condition and this is a medical question. After the merit decision of August 2, 2013, 

appellant submitted a February 19, 2013 duty status report by Dr. Wood which diagnosed 

degenerative joint disease. This document was not previously considered by OWCP but it does 

not address causal relationship.7

 Other medical evidence submitted by appellant on 

reconsideration was previously of record.8 Accordingly, the Board finds that this evidence is 

insufficient to require OWCP to reopen the claim for merit review. 

The Board further finds that appellant’s request for reconsideration did not advance a 

relevant legal argument, or demonstrate that OWCP erroneously applied a specific point of law. 

In a statement accompanying the reconsideration request, appellant’s counsel maintained that 

various medical reports from Dr. Wood established causal relationship. While appellant’s 

counsel’s statement does not appear previously in the record and is, by definition, new, it is not a 

legal argument. Rather, he contends that OWCP had not properly weighed the medical evidence. 

The Board notes, however, that OWCP had previously considered Dr. Wood’s reports and found 

this evidence to be insufficient to establish causal relationship.9

On appeal, appellant’s counsel contends that OWCP erred because it did not previously 

have his legal arguments. He also contends that OWCP in fact erroneously applied or interpreted 

a point of law because in its final merit decision it disregarded Dr. Woods’ opinion. For 

counsel’s arguments to trigger a merit review, they must show that OWCP erroneously applied 

 5

 20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 09-218 (issued July 24, 2009). 

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

7 See Johnnie B. Causey, 57 ECAB 359 (2006) (the submission of evidence which does not address the particular 

issue involved in a case does not constitute a basis for reopening the claim). 

8 J.P., 58 ECAB 289 (2007) (evidence or argument that repeats or duplicates evidence already in the case record 

has no evidentiary value and does not constitute a basis for reopening a case). 

9 See id. See also Y.S., Docket No. 08-440 (issued March 16, 2009) (on reconsideration, appellant asserted that 

the medical evidence was sufficient to require reopening of the claim but the Board found that these assertions were 

not relevant to the underlying medical issue which could only be resolved through the submission of new relevant 

medical evidence). 
5

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

considered by OWCP. The Board finds that appellant’s assertions in his reconsideration request 

reargues previously considered evidence. Counsel’s mere allegation that OWCP did not 

properly weigh the evidence from Dr. Woods does not establish that appellant is entitled to a 

merit review.10 

CONCLUSION 

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

under 5 U.S.C. § 8128(a) without further merit review. 

ORDER 

IT IS HEREBY ORDERED THAT the November 3, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 28, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 See id.