United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kearny, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-579 

Issued: May 8, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 16, 2015 appellant, through counsel, filed a timely appeal from a nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) dated October 24, 2014. 

As the last merit decision issued in this case was dated July 17, 2013, pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does 

not have jurisdiction over the merits of this case. 

ISSUE 

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

reconsideration of her claim under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 5, 2012 appellant, then a 50-year-old mail clerk, filed a Form CA-2 claim for 

benefits based on an occupational disease, alleging that she developed neck, back, and bilateral 

 1

 5 U.S.C. § 8101 et seq. 
2

conditions causally related to factors of employment. She stated on the form that she sustained a 

medical condition as a result of repeatedly opening and closing heavy bay doors on vehicles. 

By letter dated November 27, 2012, OWCP asked appellant to submit additional factual 

and medical evidence to determine whether she was eligible for compensation benefits. It asked 

her to submit a comprehensive medical report from her treating physician describing her 

symptoms and the medical reasons for her condition, and an opinion as to whether her claimed 

condition was causally related to her federal employment. OWCP requested that appellant 

submit the additional evidence within 30 days. 

By decision dated January 4, 2013, OWCP denied the claim, finding that appellant failed to 

submit a report from her treating physician which adequately described the work duties that 

allegedly caused her claimed conditions; therefore, she failed to submit sufficient evidence to 

establish fact of injury. 

By letter dated January 14, 2013, appellant, through counsel, requested an oral hearing, 

which was held on April 10, 2013. On June 12, 2013 an OWCP hearing representative affirmed 

the January 14, 2013 decision. 

In a report dated March 12, 2013, received by OWCP on June 24, 2013, Dr. Felix A. 

Almentero, Board-certified in physical medicine and rehabilitation, stated that he initially treated 

appellant on December 21, 2010 for right shoulder pain, which was radiating to the arm and right 

hand; he related these symptoms to a December 1, 2010 employment injury. He advised that she 

underwent a magnetic resonance imaging (MRI) scan of her right shoulder on April 27, 2010 

which showed no evidence of rotator cuff or detached labral tear. Dr. Almentero stated that 

appellant was diagnosed with cervical root lesion and degeneration of cervical intervertebral disc 

and that she had a positive Spurling’s test on examination. Appellant underwent an 

electromyelogram and nerve conduction study of the upper extremities on December 20, 2010 

because she was experiencing neck pain radiating to her right shoulder; this test showed no 

evidence of cervical radiculopathy. In a follow-up examination dated January 3, 2011, she 

reported having right shoulder pain. 

Dr. Almentero advised that on February 10, 2011 appellant underwent an MRI scan of 

her cervical spine which showed cervical spondylitic and discogenic changes at C4-7 and disc 

herniation at C4-5 with extrusion of disc material. He administered cervical facet injections on 

March 3 and 31, 2011 which reduced her pain by more than 60 percent. Appellant underwent 

radiofrequency ablation at the right C5-6 and C6-7 levels on July 5, 2011, and radiofrequency 

neuro-ablation at C5-6 and C6-7 with rhizotomy of the medial branch of the dorsal C5-6, C6-7 

on November 8, 2011. On March 12, 2012 she underwent x-rays of the lumbar spine which 

showed mild degenerative disc disease at L4-5, mild dextroconvex scoliosis, and no evidence of 

dynamic instability. Dr. Almentero advised that an MRI scan of the lumbar spine taken on 

March 12, 2012 showed degenerative disc disease at L4-5 and L5-S1, with disc bulging at L4-5 

and mild bilateral foraminal narrowing and a small left paracentral disc protrusion at L5-S1 

minimally indenting the left ventral thecal sac. Appellant underwent left-sided L4-5 and L5-S1 

facet injections on May 24 and June 29, 2012. 
3

Dr. Almentero asserted that appellant’s condition was the result of soft tissue scarring and 

nerve root impingement. He advised that individuals who sustain such traumatic injury of the 

cervical spine, lumbar spine, and shoulders have a tendency to experience acute exacerbations of 

pain involving these areas at later dates; these episodes might be caused by minor or incidental 

trauma and might interfere with normal activities of daily living, as was the case with appellant. 

Dr. Almentero stated that such traumatic injuries may have also predisposed her to the premature 

development of osteoarthritis involving the cervical spine, lumbar spine, and right shoulder. He 

diagnosed cervical spondylitis, cervical facet syndrome, lumbar radiculopathy, and lumbar facet 

syndrome. Dr. Almentero advised that appellant’s subjective signs and symptoms were within 

the normal limits of an average person subjected to this type of trauma and that the objective 

findings, including positive examination, and diagnostic tests, confirm the presence of these 

injuries. He opined that, after assessment of her condition, based on her history, complaints, 

examinations, test results, lack of previous symptoms, and his professional experience with 

similar cases, the above-mentioned injuries were directly and causally related to the work-related 

incident which occurred on December 1, 2010. Dr. Almentero stated that in all likelihood these 

areas would be permanently weakened and that appellant would experience future exacerbations 

of her condition; he opined that future arthritic degenerative changes of the cervical spine and 

lower extremities might result as a direct result of this injury. 

By letter dated June 24, 2013, counsel requested reconsideration. 

By decision dated July 17, 2013, OWCP denied modification of the January 4, 2013 

decision. 

By letter dated August 23, 2013, counsel requested reconsideration. 

In an August 22, 2013 report, Dr. Almentero essentially reiterated the findings of his 

March 12, 2013 report. He indicated that the August 22, 2013 report was an amended version of 

the March 12, 2013 report and attributed appellant’s claimed conditions to the long term effect of 

her work duties rather than a previous traumatic injury. Dr. Almentero reiterated that she was 

initially treated on December 21, 2010 for right shoulder pain radiating to the right arm and 

hand; he, however, stated that she related these symptoms to her occupational, job-related duties. 

He related a September 2006 work injury and stated that the work that appellant had performed 

at the employing establishment had caused or aggravated her neck, lumbar, and shoulder 

conditions and that her duties after March 13, 2010 worsened her right shoulder condition, her 

work post-2007 aggravated her back condition, and the duties throughout her career had caused 

or aggravated her neck and left shoulder conditions. 

Dr. Almentero stated that individuals who sustain occupational disease of the cervical 

spine, lumbar spine, and shoulders due to job duties have a tendency to experience acute 

exacerbations of pain involving these areas at later dates, which might be caused by minor or 

incidental trauma and which might interfere with one’s normal activities of daily living, as has 

been the case with appellant. He stated that such occupational duties might also predispose her 

to the premature development of osteoarthritis involving the cervical spine, lumbar spine, and 

right shoulder; her subjective signs and symptoms were within the normal limits of the average 

person subjected to this type of occupational disease. Dr. Almentero concluded that, after 

reviewing her condition, based on her history, complaints, examinations, test results, lack of 
4

previous symptoms and his experience with similar cases, her above-mentioned occupational 

diseases were directly and causally related to the work-related duties of her occupation. 

By decision dated November 21, 2013, OWCP denied appellant’s application for review 

as it neither raised substantive legal questions nor included new and relevant evidence sufficient 

to require OWCP to review its prior decision. 

In a November 18, 2013 report, received by OWCP on November 25, 2013, 

Dr. Almentero essentially reiterated his previous findings and conclusions and he indicated that 

this report was an amended version of the March 12, 2013 report. This report was identical to 

his previously submitted “amended” report dated August 22, 2013, except that it added a 

notation that appellant was last seen in his practice on May 7, 2013, by Dr. Hajela who 

prescribed Voltaren, Zanaflex, and Oxycondone and recommended that appellant follow up with 

a surgeon. 

By letter dated December 6, 2013, counsel requested reconsideration. 

By decision dated October 24, 2014, OWCP denied appellant’s application for review as 

it neither raised substantive legal questions nor included new and relevant evidence sufficient to 

require OWCP to review its prior decision. 

LEGAL PRECEDENT 

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

it will review an award for or against compensation.2

 Under OWCP’s regulations at 20 C.F.R. 

§ 10.606(b), a claimant may obtain review of the merits of his or her claim by showing that 

OWCP erroneously applied or interpreted a specific point of law; by advancing a relevant legal 

argument not considered by OWCP; or by submitting relevant and pertinent evidence not 

previously considered by OWCP.3 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.4

ANALYSIS 

In the present case, appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law; nor has she advanced a relevant legal argument not previously 

considered by OWCP. 

Appellant submitted a new report dated November 18, 2013 from Dr. Almentero, which 

he stated was an amended version of the March 12, 2013 report. This report, however, was 

identical to his previously submitted “amended” report dated August 22, 2013, except that it 

noted that he was seen for reevaluation by Dr. Hajela on May 7, 2013 and prescribed 

medications. The Board has held that the submission of evidence which does not address the 

 2 Id. at § 8128(a); see also J.W., 59 ECAB 507 (2008). 

3

 20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a). 

4 Howard A. Williams, 45 ECAB 853 (1994). 
5

particular issue involved in the case does not constitute a basis for reopening the claim.5

 The 

new evidence presented in this report, i.e., that appellant was seen by Dr. Hajela on May 7, 2013 

is not pertinent to the issue on appeal; whether Dr. Hajela has established that appellant sustained 

a work-related back, neck, or bilateral shoulder condition caused or aggravated by her work 

duties. This report from Dr. Almentero dated November 18, 2013, otherwise only reiterated 

findings and conclusions he made in his August 22, 2013 report; that appellant’s claimed 

condition was attributable to an “occupational work duties” and “occupational disease.” OWCP 

previously considered his findings and conclusions in reviewing the August 22, 2013 report in its 

November 21, 2013 nonmerit decision. This report is therefore cumulative and duplicative and 

is not relevant to the issue presented in the instant case.6 

On appeal, counsel contends that OWCP abused its discretion by failing to conduct a 

merit review given that appellant submitted new medical evidence; i.e., Dr. Almentero’s 

amended November 18, 2013 report, to support an occupational disease claim. He contends that 

Dr. Almentero demonstrated his awareness of appellant’s work duties and medical history in his 

March 12, 2013 report, and subsequently clarified his opinion that she aggravated her neck and 

back conditions as a result of performing her work duties for the employing establishment. 

Counsel therefore requests that the Board: (a) reverse OWCP’s July 17, 2013 merit decision and 

accept appellant’s claim; or (b) vacate and remand for further development of the medical 

evidence pertaining to the issue of whether she submitted sufficient medical evidence to establish 

a causal relationship between the medical conditions and her work exposure. The Board, 

however, as previously noted, does not have jurisdiction over the merits of the claim as this 

appeal was not filed within 180 days of the last merit decision issued on July 17, 2013.7

 For the 

reasons stated above, the Board does not accept counsel’s argument and denies his request. The 

Board affirms OWCP’s October 24, 2014 decision. 

Appellant’s reconsideration request failed to show that OWCP erroneously applied or 

interpreted a point of law nor did it advance a point of law or fact not previously considered by 

OWCP. OWCP did not abuse its discretion in refusing to reopen appellant’s claim for a review 

on the merits in its October 24, 2014 decision.

CONCLUSION 

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

reconsideration on the merits of her claim under 5 U.S.C. § 8128(a). 

 5 See David J. McDonald, 50 ECAB 185 (1998). 

6 See Patricia G. Aiken, 57 ECAB 441 (2006). 

7

 20 C.F.R. § 501.3(e). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 24, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 8, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board