United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.F., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, San Diego, CA, Employer 

__________________________________________ 

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Docket No. 15-1227 

Issued: August 24, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 11, 2015 appellant, through counsel, filed a timely appeal from a March 30, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision of September 16, 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 December 30, 2014 request for 

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

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case was previously before the Board.2 On January 13, 2014 appellant, then a 49-

year-old administrative support assistant, filed an occupational disease claim alleging that she 

experienced neck and bilateral shoulder and arm pain and tingling in her fingers, legs, and knees 

as a result of daily computer key entry and processing documents. 

In support of her claim, appellant submitted a June 17, 2013 report from Dr. Richard 

Mantell, a Board-certified internist, who examined her for complaints of neck, low back, 

shoulder, and hand pain. Dr. Mantell stated that she worked as an administrative support 

assistant and discussed her various job duties. He provided examination findings. Dr. Mantell 

reported that appellant’s work involved repetitive movement of her arms, shoulders, neck, and 

low back. He opined that because of appellant’s job duties and pain related to her work it 

seemed reasonable that the repetitive motions of her job contributed to her pain. 

In a decision dated April 3, 2014, OWCP denied appellant’s claim finding insufficient 

medical evidence to establish that appellant’s conditions were causally related to her 

employment duties. By decision dated September 16, 2014, the Board affirmed OWCP’s 

April 3, 2014 decision, finding that appellant did not meet her burden of proof to establish that 

her medical conditions were causally related to factors of her federal employment. The facts of 

the case, as set forth in the prior decision, are herein incorporated by reference. 

On December 30, 2014 OWCP received appellant’s request, through counsel, for 

reconsideration of the Board’s September 16, 2014 decision.3

 

In a November 17, 2014 report, Dr. Mantell discussed appellant’s complaints of pain in 

her neck, low back, and right hand along with numbness and tingling of the right upper 

extremity. He stated that she worked as an administrative support assistant whose duties 

involved repetitive movement of the arms, shoulders, neck, and low back, as well as sitting for 

long periods of time. Dr. Mantell reported that diagnostic studies revealed hypofunction of the 

right and left C7 and left C5 nerve roots. Upon examination of appellant’s back, he observed 

mild-to-moderate tenderness at the bilateral trapezius and lumbar paraspinal musculature and 

intact sensation. Appellant’s range of motion of the cervical and lumbar spines were decreased 

due to pain. Strength measures were 3/5 throughout the cervical and lumbar musculature. 

Dr. Mantell opined that based on appellant’s account of her job duties and the pain related to her 

work it was his opinion that the repetitive motions of her job contributed to the pain of the 

cervical, lumbar, and carpal tunnel on the right hand. He recommended that appellant continue 

with injection therapy, physical therapy, and pain management treatments. 

By decision dated March 30, 2015, OWCP denied appellant’s request for reconsideration 

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

 2

 Docket No. 14-1295 (issued September 16, 2014). 

3

 OWCP is not authorized to review Board decisions. Although the September 16, 2014 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). 
3

5 U.S.C. § 8128(a). It determined that Dr. Mantell’s November 17, 2014 was repetitive and 

cumulative of his June 17, 2013 medical report that OWCP had previously considered. 

LEGAL PRECEDENT 

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

to review an award for or against compensation.4

 OWCP regulations provide that OWCP may 

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

The employee shall exercise her right through a request to the district office.5

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.6 

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

OWCP’s decision for which review is sought.7

 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.8

 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.9

ANALYSIS 

The Board finds that appellant has not shown 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. 

By decision dated September 16, 2014, the Board affirmed the denial of appellant’s claim 

and that she had failed to provide evidence that her medical conditions were causally related to 

her employment duties. On December 30, 2014 OWCP received her request for reconsideration. 

She submitted a November 17, 2014 report from Dr. Mantell who found that appellant’s job 

 4

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

5

 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). 

6 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). 

7 Id. at § 10.607(a). 

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

9 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
4

duties contributed to her cervical and lumbar pain and her right hand carpal tunnel syndrome. 

This evidence is insufficient to justify a merit review because it is repetitive of Dr. Mantell’s 

June 17, 2013 report, which was previously considered. The Board has found that the 

submission of evidence which repeats or duplicates evidence already in the case record does not 

constitute a basis for reopening a case.10 

On appeal counsel contends that the Board’s September 16, 2014 decision was contrary 

to law and fact. The Board notes, however, that the evidence submitted failed to establish that 

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

argument not previously considered by OWCP, and did not constitute new and relevant 

evidence. Because appellant did not meet any of the necessary requirements for reconsideration 

under 5 U.S.C. § 8128, she is not entitled to further merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s December 30, 2014 request for 

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

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 24, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).