United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Haledon, NJ, Employer 

__________________________________________ 

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Docket No. 14-2072 

Issued: June 8, 2015 

Appearances: Case Submitted on the Record

James D. Muirhead, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 29, 2014 appellant, through counsel, filed a timely appeal from a 

September 15, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying her request for reconsideration without a merit review. As more than 180 days 

elapsed from September 30, 2013 the date of the most recent OWCP merit decision 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 to review the merits of the case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 6, 2012 appellant, then a 44-year-old letter carrier filed a traumatic injury 

claim alleging that on December 5, 2012 she injured her back, right leg, and right knee. She 

alleged that the extension of her delivery route and heavier volume of mail in her satchel caused 

her injury. Appellant stated that she heard a pop and felt pain in her back which radiated down 

to her leg and her right knee. She stopped work on December 5, 2012. 

By letter dated December 10, 2012, the manager of customer service at the employing 

establishment controverted appellant’s claim. He alleged that her claim was an attempt to 

challenge a change in her route. The manager disputed appellant’s claim that her route had been 

extended and noted that her route was only resequenced to make it more efficient. He also 

disputed that her satchel was too heavy; arguing that when her satchel was weighed after the 

incident it only weighed 20 pounds and 14 ounces and that adding mail to account for what had 

already been delivered, would have only brought the satchel to 24 pounds and six ounces. The 

manager specified that mail carriers are required to lift at least 35 pounds. He also claimed that 

when emergency personnel arrived on the scene, appellant was able to twist her back without any 

inclination of pain. 

Also submitted to OWCP was a December 10, 2012 statement from a supervisor of 

customer service who witnessed the alleged incident. He alleged that appellant complained 

about her route being reconfigured and how some stops caused her satchel to be too heavy before 

she began her route. The supervisor advised that he accompanied her on her route to supervise 

her. He stated that appellant dropped her satchel at every stop and that when she grabbed her 

satchel from the ground and lifted it she stated that she was in pain and could not continue. The 

supervisor advised that he called the ambulance and that when he returned to the office he 

weighed the satchel and it was 20 pounds and 14 ounces. 

In a December 21, 2012 report, Dr. Vincent McInerney, a Board-certified orthopedic 

surgeon, advised that appellant was injured when she was asked to carry 35 pounds. He stated 

that she had severe neck and low back pain that radiated to her right knee as well as pain 

radiating into the interscapular area down her arms to the fingers. Dr. McInerney also noted that 

appellant had paracervical spasms. On examination, he found paracervical tenderness, good 

neck range of motion, and pain at the extremes of lateral bending and rotation. A back x-ray was 

consistent with mild scoliosis. Dr. McInerney diagnosed cervical sprain and interscapular 

myofascitis. 

In a January 4, 2013 report, Dr. McInerney advised that appellant complained of severe 

neck pain, left shoulder pain, and lower back pain that radiated to the right knee. He noted that 

she had some improvement, but she was still experiencing bilateral cervical radiculopathy more 

significant on the left. Dr. McInerney further noted that appellant had limited neck range of 

motion with pain especially on lateral bending and rotation. He stated that this was related to a 

work injury where she was asked to lift a 35-pound bag. 

In a January 8, 2013 statement, appellant advised that, on the date of her injury, there was 

an excessive amount of mail in her satchel and mail in both hands. She stated that she was 

struggling and straining to carry the mail and that she repeatedly asked her supervisor if she 
3

could deliver some then come back for the rest. Appellant noted that as she was walking she 

heard a pop followed by sharp pain in her back that shot down to her legs. She stated that she 

collapsed to the ground and her supervisor called an ambulance that took her to the hospital. 

In a February 14, 2013 decision, OWCP denied appellant’s claim because the medical 

evidence failed to establish that the diagnosed condition was causally related to the alleged work 

incident. 

Appellant submitted additional evidence from Dr. McInerney. In a January 31, 2013 

report, Dr. McInerney advised that she was having left side neck and arm pain as well as right 

arm discomfort. Appellant had limited neck range of motion with paracervical spasms. 

Dr. McInerney advised that a January 7, 2013 magnetic resonance imaging (MRI) scan revealed 

no significant findings. He opined that appellant’s injury was related to the December 5, 2012 

work incident where she had to carry a 35-pound bag. Dr. McInerney stated that the incident 

was capable of causing the paracervical spasm and the pain that she described because lifting 

something heavy in the position that she was in caused traction on the left shoulder and neck area 

which irritated the brachial plexus and nerve roots emanating from the cervical spine area. He 

stated that the type of traction injury appellant had was plausibly and was most likely the reason 

for her continued cervical radiculopathy. 

Appellant’s counsel requested a telephone hearing which was held on July 16, 2013. 

Appellant advised that her satchel had a greater volume of mail on the date of the incident 

because she had to deliver several magazines. She stated that she believed her injury occurred as 

a result of bending to pick up her satchel and throwing it over her shoulder. 

In a July 26, 2013 report, Dr. McInerney advised that appellant’s neck and shoulder pain 

improved and that she returned to modified work. He reiterated that the work incident caused 

her pain and paracervical spasm and that the type of traction injury that she had was the plausible 

and likely reason for her continued cervical radiculopathy. 

By decision dated September 30, 2013, an OWCP hearing representative denied 

appellant’s claim because medical evidence did not establish that the diagnosed condition was 

causally related to the work incident. 

On September 4, 2014 appellant’s counsel requested reconsideration. He argued that 

medical evidence was sufficient to establish the claim. In particular, counsel pointed to 

Dr. McInerney’s July 26, 2013 report, where he opined that it was plausible and likely that the 

incident caused appellant’s neck pain. He also argued, in the alternative, that OWCP had an 

obligation to further develop the evidence. Counsel noted that OWCP did not write to 

Dr. McInerney to advise him of what was needed to approve the claim. He resubmitted 

Dr. McInerney’s July 26, 2013 report and submitted a July 26, 2013 addendum report correcting 

his earlier January 31, 2013 report. The correction changed the phrase “capable of causing” to 

“is causing” and changed “plausible and most likely the reason” to “plausible and likely the 

reason.” 
4

By decision dated September 15, 2014, OWCP denied appellant’s request for 

reconsideration without a merit review.2

LEGAL PRECEDENT 

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

OWCP’s regulations provide that the evidence or argument submitted by a claimant must either: 

(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.3 Where the request from 

reconsideration fails to meet at least one of these standards, OWCP will deny the application for 

reconsideration without opening the case for a review of the merits.4

ANALYSIS 

In a September 30, 2013 merit decision, an OWCP hearing representative denied 

appellant’s claim because medical evidence did not establish that the diagnosed condition was 

causally related to the work incident. Appellant submitted a timely request for reconsideration 

on September 4, 2014, which was denied by OWCP without a merit review. 

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

without further merit review. In support of reconsideration, appellant’s counsel argued that 

medical evidence should have been sufficient to establish the claim or, in the alterative, that 

OWCP had an obligation to develop the medical evidence. The Board has held that appellant’s 

belief that the medical evidence supported causal relationship and a disagreement with OWCP’s 

findings on the probative value of the medical evidence does not constitute a new and relevant 

legal argument sufficient to warrant merit review of the claim.5

 Consequently, these assertions 

do not show that OWCP erroneously applied or interpreted a specific point of law and do 

not advance a relevant legal argument not previously considered by OWCP. 

Appellant resubmitted Dr. McInerney’s July 26, 2013 report. However, this report does 

not constitute relevant new evidence because it was previously considered by OWCP.6

 She also 

 2

 On September 22, 2014 appellant again requested reconsideration. In a September 30, 2014 decision, OWCP 

denied her request for reconsideration without a merit review. As noted, the present appeal was filed on 

September 29, 2014. The Board finds that the September 30, 2014 OWCP decision is null and void. Following the 

docketing of an appeal with the Board, OWCP does not retain jurisdiction to render a further decision regarding a 

case on appeal until after the Board relinquishes its jurisdiction. Any decision rendered by OWCP on the same 

issues for which an appeal is filed is null and void. See Douglas E. Billings, 41 ECAB 880 (1990); see also

Linda D. Guerrero, 54 ECAB 556 (2003). 

3 E.K., Docket No. 09-1827 (issued April 27, 2010). See 20 C.F.R. § 10.606(b)(2). 

4 L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.606(b). 

5 P.J., Docket No. 13-376 (issued May 10, 2013).

6 See James W. Scott, 55 ECAB 606 (2004) (evidence that repeats or duplicates evidence already in the case 

record has no evidentiary value and does not constitute a basis for reopening a case). 
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submitted a July 26, 2013 addendum to Dr. McInerney’s earlier January 31, 2013 report. 

However, this report does not constitute relevant and pertinent new evidence because 

Dr. McInerney’s opinion on causal relation expressed in this addendum is essentially identical to 

that in his other July 26, 2013 report which, as noted, was previously considered by OWCP. 

Because appellant failed to meet one of the standards enumerated under section 8128(a) 

of FECA, she was not entitled to further merit review of her claim. 

CONCLUSION 

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

review of the merits. 

ORDER 

IT IS HEREBY ORDERED THAT the September 15, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 8, 2015 

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