United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

East Providence, RI, Employer 

__________________________________________ 

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Docket No. 15-0912 

Issued: March 4, 2016 

Appearances: Case Submitted on the Record

Kevin Card, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 23, 2015 appellant, through his representative, filed a timely appeal from an 

October 30, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1

 As more than 180 days has elapsed from February 20, 2014, the date of the most 

recent OWCP merit decision to the filing of this appeal, pursuant to the Federal Employees’ 

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to 

review the merits of appellant’s claim.3

 1

 The Board notes that appellant submitted additional evidence after OWCP rendered its October 30, 2014 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 

2

 5 U.S.C. § 8101 et seq. 

3

 Appellant submitted a timely request for oral argument in connection with OWCP’s October 30, 2014 decision. 

After exercising its discretion, the Board, in an order issued on December 29, 2015, which denied his request for 

oral argument, finding that the issue on appeal could be adequately addressed in a decision based on a review of the 

case record. Order Denying Request for Oral Argument, Docket No. 15-0912 (issued December 29, 2015). 
2

ISSUE 

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

without a merit review pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On November 14, 2013 appellant, then a 52-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained rotator cuff syndrome in the performance 

of duty. He attributed his condition to repetitive motions at work. Appellant noted that he first 

became aware of his condition on January 8, 2008 and its relation to his federal employment on 

November 6, 2013. He did not stop work. 

In a statement received on November 26, 2013, appellant advised that he worked 48 to 50 

hours per week at the employing establishment. He noted that his duties included casing mail, 

lifting heavy buckets of mail weighing up to 30 pounds, carrying a satchel weighing up to 35 

pounds, bending, twisting, and stretching. 

In a November 13, 2013 statement, Dr. Daniel Aaron, a Board-certified orthopedic 

surgeon, advised that appellant complained of right shoulder pain. He noted that appellant 

experienced symptoms for years, but his condition progressively worsened over time. 

Examination of the right shoulder revealed positive impingement signs, no tenderness, and no 

pain with range of motion. Dr. Aaron advised that a right shoulder x-ray revealed no acute bony 

abnormality, no degenerative joint disease, and a centered humeral head. 

By letter dated January 16, 2014, OWCP advised appellant of the type of evidence 

needed to establish his claim. He was informed that he had 30 days to submit responsive 

evidence. 

In a report received on February 13, 2014, Dr. Aaron advised that appellant was 

experiencing worsening right shoulder pain for years. He noted that appellant’s examination was 

consistent with rotator cuff syndrome, which could include impingement, tendinitis, bursitis, and 

sometimes partial thickness or small full thickness tears of the rotator cuff tendon. Dr. Aaron 

advised that appellant’s condition typically developed with age and repetitive stress. He 

explained that appellant worked as a letter carrier where he was required to lift heavy loads 

consistently and opined that rotator cuff syndrome could certainly develop in that context and be 

aggravated by continued heavy lifting. 

By decision dated February 20, 2014, OWCP denied appellant’s claim because the 

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

to factors of his employment. 

By letter dated April 14, 2014, appellant requested to change his attending physician. 

In an October 14, 2014 letter, received on October 20, 2014, appellant requested 

reconsideration. 

In an October 2, 2014 report, Dr. Aaron advised that appellant was experiencing right 

shoulder pain that had been present for years. He noted that examination of the right shoulder 
3

was consistent with rotator cuff syndrome which could include impingement, tendinitis, bursitis, 

and sometimes partial thickness or small full thickness tears of the rotator cuff tendon. 

Dr. Aaron noted that in his most recent September 3, 2014 evaluation appellant reported 

improvement in pain after his acromioclavicular joint injection, but related that his pain had 

since returned. He opined that arthritis of the acromioclavicular joint and rotator cuff syndrome 

are conditions that develop with age, as well as repetitive stress or wear and tear. Dr. Aaron 

further opined that appellant’s condition was caused by repetitive mail sorting, mail delivery, 

repetitive reaching with his right shoulder, opening and closing doors, lifting heavy loads, and 

carrying a heavy bag on his shoulder consistently. 

By decision dated October 30, 2014, OWCP denied appellant’s request for 

reconsideration without conducting a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

 its 

regulations provide that the evidence or argument submitted by 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 considered by OWCP.5 To be entitled to a merit review of its decision 

denying or terminating a benefit, a claimant’s application for review must be received within one 

year of the date of that decision.6 When a claimant fails to meet one of the above standards, 

OWCP will deny the application for reconsideration without reopening the case for review on the 

merits.7 

ANALYSIS 

In a February 20, 2014 decision, OWCP denied appellant’s claim because the medical 

evidence did not establish that the diagnosed conditions were causally related to factors of his 

employment. Appellant submitted a timely request for reconsideration received by OWCP on 

October 20, 2014 which OWCP denied without conducting a merit review. 

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

without further merit review. The underlying issue in this case is whether appellant established 

that factors of his federal employment caused or contributed to a diagnosed medical condition. 

This is a medical issue. OWCP’s October 30, 2014 decision informed appellant that the medical 

evidence was insufficient to establish that his claimed condition was caused by factors of his 

employment. In support of his request for reconsideration, appellant submitted an October 2, 

2014 report by Dr. Aaron. However, this report does not constitute relevant and pertinent new 

evidence. In this report Dr. Aaron noted that arthritis of the acromioclavicular joint and rotator 

 4 Supra note 2. Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 
4

cuff syndrome are conditions that develop with age, as well as repetitive stress or wear and tear. 

He opined that appellant’s condition was caused by repetitive mail sorting, mail delivery, 

repetitive reaching with his right shoulder, opening and closing doors, lifting heavy loads, and 

carrying a heavy bag on his shoulder. This report, however, repeats the content of his report 

received on February 19, 2014, which also attributed his condition to heavy lifting and 

characterized his condition as one that typically developed with age and repetitive stress. The 

Board has held that evidence or argument that repeats or duplicates evidence previously of 

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

Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a 

specific point of law nor advanced a relevant legal argument not previously considered by 

OWCP. Because he failed to meet one of the standards enumerated under section 8128(a) of 

FECA, he was not entitled to further merit review of his claim. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request to reopen his claim for 

further review of the merits under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the October 30, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board