United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fayetteville, GA, Employer 

__________________________________________ 

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Docket No. 16-0843 

Issued: October 20, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 16, 2016 appellant filed a timely appeal from a November 2, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

has elapsed from the last merit decision, dated June 1, 2015, 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 claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

of his claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The facts relevant to the 

present appeal are set forth below. 

OWCP accepted that on August 23, 2006 appellant, then a 59-year-old rural mail carrier, 

sustained a left hip contusion, right shoulder sprain, lumbar strain, and right knee strain in an 

employment-related motor vehicle accident. It later expanded the claim to accept secondary 

moderate arthritis of the right knee and a torn right medial meniscus. Appellant received 

compensation for temporary total disability on the periodic rolls.2 

On November 16, 2006 Dr. William M. Craven, an attending Board-certified orthopedic 

surgeon, performed arthroscopic medical and lateral meniscectomies of the right knee with 

anterior cruciate ligament reconstruction and tricompartmental chondroplasty.3 He submitted 

periodic progress notes holding appellant off work. Appellant returned to full-time modified 

duty as a rural carrier associate on May 30, 2007. He continued working in the job with 

intermittent absences.4 

Dr. W. Joseph Absi, an attending Board-certified orthopedic surgeon, performed a total 

right knee arthroplasty on March 29, 2011 authorized by OWCP. On June 24, 2011 he 

performed closed manipulation of the right knee under anesthesia. In an October 4, 2011 report, 

Dr. Absi noted that appellant did “not appear to be in pain.” On examination, he observed a 

well-healed anterior scar, nearly full extension, 85 degrees of flexion, and no gross ligamentous 

instability. X-rays showed good alignment of the right knee prosthesis with no sign of 

loosening. Dr. Absi released appellant to light duty. 

Appellant returned to full-time work as a modified rural carrier on October 7, 2011. His 

duties required lifting, pulling, and pushing up to 20 pounds, limited standing, no kneeling, 

squatting, or climbing, and the ability to alternate standing and sitting. 

In a November 7, 2011 report, Dr. Absi related appellant’s complaints of increased right 

knee pain while at work. He opined that appellant could continue to perform light duty. 

Dr. Absi found that appellant had reached maximum medical improvement as of 

March 2, 2012. He noted permanent work restrictions limiting standing to one hour a day. 

 2

 On November 13, 2007 OWCP issued a schedule award for 24 percent permanent impairment of the right leg. 

Following a hearing, OWCP’s hearing representative affirmed the schedule award by decision dated July 10, 2008. 

On March 28, 2012 OWCP issued a schedule award for an additional 13 percent permanent impairment of the right 

leg. On February 3, 2014 an OWCP medical adviser opined that appellant’s right knee condition was stable, with no 

worsening of the accepted injury. 

3

 Appellant participated in postoperative physical therapy through April 2007. Dr. Craven released appellant to 

full duty as of April 18, 2007. 

4

 By decision dated June 2, 2008, OWCP issued a formal loss of wage-earning capacity determination finding that 

appellant’s actual earnings as a modified rural carrier associate effective June 22, 2008 properly represented his 

wage-earning capacity. 
3

Dr. Absi restricted walking, noting that appellant needed to alternate sitting and standing, and 

was permitted to drive only a van. In periodic reports through April 19, 2013, he noted that 

appellant complained of right knee pain while at work. Dr. Absi opined that appellant could 

continue working within his prior restrictions. 

Appellant stopped work on August 20, 2013. He claimed wage-loss compensation (Form 

CA-7) for the period August 20, 2013 and continuing. OWCP treated this as a claim for 

recurrence of disability. 

Dr. Harvey B. Leslie, an attending physician Board-certified in pain management, 

submitted slips holding appellant off work as of August 20, 2013 and from September 13 to 

October 21, 2013. On September 30, 2013 he opined that appellant was permanently disabled 

due to right knee arthroplasty with pain, swelling, and weakness. Dr. Leslie performed closed 

manipulation of the right knee under anesthesia. 

By decision dated October 31, 2013, OWCP denied appellant’s claim for recurrence of 

disability for the period August 20 to September 13, 2013. By decision dated November 12, 

2013, it denied his claim for compensation beginning September 14, 2013. OWCP found that 

Dr. Leslie had failed to provide objective findings establishing that appellant was no longer able 

to perform his light-duty position as of August 20, 2013. 

In a November 12, 2013 letter, received November 19, 2013, appellant requested 

reconsideration of OWCP’s October 31 and November 12, 2013 decisions. He submitted 

additional evidence. 

An October 25, 2013 right knee arthrogram showed the right knee prosthesis was grossly 

intact, without significant mass or fluid collection. 

In reports from November 4, 2013 to January 6, 2014, Dr. Leslie found tenderness and 

restricted motion of the right knee. He prescribed medication and physical therapy. 

By decision dated February 6, 2014, OWCP denied modification of the October 31 and 

November 12, 2013 decisions, finding that the additional evidence submitted failed to establish a 

causal relationship between the accepted August 23, 2006 employment injury and the claimed 

periods of disability. It noted that appellant filed a new occupational disease claim (Form CA-2) 

for a right knee injury under File No. xxxxxx776, asserting that walking on concrete floors at 

work following total knee arthroplasty worsened his condition. OWCP denied his claim under 

File No. xxxxxx776. 

In a May 12, 2014 letter, appellant requested reconsideration. He submitted a March 3, 

2014 report from Dr. Leslie opining that appellant permanently disabled from work as of 

August 20, 2013. Dr. Leslie asserted that appellant was unable to sit for more than 10 minutes, 

drive, or walk due to involuntary muscle spasms and chronic pain. He explained that prescribed 

narcotic medication impaired his cognitive and motor skills such that he could not drive. 

Dr. Leslie provided progress notes from March 6 to August 15, 2014 finding continued swelling 

and pain in the right knee. 
4

By decision dated October 2, 2014, OWCP denied modification, finding that Dr. Leslie’s 

report was not sufficiently rationalized to establish that the August 23, 2006 right knee injury 

disabled appellant from work as of August 20, 2013. 

In an October 20, 2014 letter, received October 27, 2014, appellant again requested 

reconsideration. He submitted September 16 and October 10, 2014 chart notes and prescription 

slips from Dr. Leslie, noting continued right knee pain. In an October 13, 2014 letter, Dr. Leslie 

opined that the right knee arthroplasty rendered appellant “permanently disabled due to [r]ight 

[k]nee instability, popping on range of motion, swelling, chronic intractable knee pain,” and 

narcotic medication impairing his cognitive and motor skills. 

By decision dated December 5, 2014, OWCP denied modification, finding that the 

additional evidence submitted remained insufficient to establish the claimed recurrence of 

disability. It found that Dr. Leslie’s October 13, 2014 report was not based on a complete, 

accurate history, and did not contain sufficient rationale supporting a spontaneous worsening of 

the accepted condition as of August 20, 2013. OWCP noted that appellant implicated new work 

factors as the cause of the claimed period of disability. Appellant then appealed to the Board. 

By decision and order dated June 1, 2015,5

 the Board found that appellant had not 

established a recurrence of disability, effective August 20, 2013, as Dr. Leslie had not observed a 

worsening of appellant’s right knee as of that date. Also, appellant implicated new work factors, 

breaking the chain of causation from the accepted right knee injury. 

During the pendency of the prior appeal, appellant submitted periodic progress notes 

from Dr. Leslie dated from December 19, 2014 to May 12, 2015, diagnosing chronic 

postoperative right knee pain. 

In a letter dated October 12, 2015, received October 26, 2015, appellant again requested 

reconsideration. He asserted that he remained totally disabled for work due to chronic, severe 

right knee pain, weakness, and restricted motion. Appellant also described severe financial 

hardships and personal difficulties caused by the accepted injuries. He submitted medical 

evidence. 

Dr. Leslie provided progress notes dated from June 11 to September 11, 2015, diagnosing 

chronic right knee pain. 

In an August 31, 2015 report, Dr. Christopher Haraszti, an attending Board-certified 

orthopedic surgeon, provided a history of injury and treatment. He obtained x-rays showing a 

“posterior stabilized total knee replacement in good position,” with significant shortening of the 

patellar tendon causing an extremely low-lying patella, called a “patellar baja.” On examination 

of the right knee, Dr. Haraszti found “significant and crippling quadriceps extension weakness,” 

directly caused by the shortened patellar tendon and patellar baja. He explained that he did not 

know the etiology of the patellar baja as he did not have access to appellant’s complete medical 

record. Dr. Haraszti emphasized that he could not address causal relationship as he did “not have 

any records relating the original injury to the knee replacement.” He opined that surgery was 

 5

 Docket No. 15-0473 (issued June 1, 2015). 
5

very likely to cause additional difficulties and so found that appellant had attained maximum 

medical improvement. 

On September 14, 2015 Dr. Haraszti opined that appellant had a poor result from total 

knee replacement and could no longer work as a letter carrier. 

Appellant also submitted duplicates of an employing establishment accident report, 

Dr. Craven’s November 21, 2006 report, June 12, 2007 imaging studies, Dr. Absi’s March 8, 

2011 report, March 29, 2011 operative note, and Dr. Leslie’s March 3, 2014 letter. 

By decision dated November 2, 2015, OWCP denied reconsideration, finding that 

appellant’s letter and accompanying documents did not constitute new, relevant evidence. It 

further found that Dr. Haraszti’s reports, although new, were irrelevant to the recurrence claim as 

he did not address the cause of appellant’s August 20, 2013 work stoppage. OWCP further 

found that the copies of evidence previously of record were repetitious and therefore insufficient 

to warrant a review of the claim on the merits. It also found that appellant’s October 12, 2012 

letter was irrelevant as it did not present new, relevant legal argument, or establish legal error by 

OWCP. 

LEGAL PRECEDENT 

To require the office to reopen a case for merit review under section 8128(a) of FECA,6

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant 

must: (1) show 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.7

 Section 10.608(b) provides that 

when an application for review of the merits of a claim does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.8 

In support of a request for reconsideration, appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.9

 Appellant need only 

submit relevant, pertinent evidence not previously considered by OWCP.10 When reviewing an 

OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.11 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

9 Helen E. Tschantz, 39 ECAB 1382 (1988). 

10 See supra note 7. See also Mark H. Dever, 53 ECAB 710 (2002). 

11 Annette Louise, 54 ECAB 783 (2003). 
6

ANALYSIS 

OWCP accepted that appellant sustained a left hip contusion, right shoulder sprain, 

lumbar strain, right knee strain, secondary moderate arthritis of the right knee, and a torn right 

medial meniscus. It authorized a total right knee arthroplasty, performed on March 29, 2011 by 

Dr. Absi, an attending Board-certified orthopedic surgeon. Appellant returned to full-time 

modified duty on October 7, 2011 and stopped work on August 20, 2013. He claimed 

compensation for total disability beginning August 20, 2013. 

OWCP issued an October 31, 2013 decision denying appellant’s claim for compensation, 

finding that the medical evidence did not establish an objective worsening of the accepted 

condition that would disable him from his modified-duty job. By decision dated November 12, 

2013, it denied his claim for compensation beginning September 14, 2013, as the medical 

evidence of record was insufficient to establish the claimed period of disability. OWCP affirmed 

its October 31 and November 12, 2013 decisions on February 6, October 2, and December 5, 

2014, finding that additional medical evidence did not establish the claimed recurrence of 

disability or a period of disability on and after August 20, 2013. The Board affirmed the denial 

of recurrence of disability in its June 1, 2015 decision and order. 

Appellant requested reconsideration in an October 12, 2015 letter, received October 26, 

2015, asserting that his chronic right knee pain and weakness rendered him totally disabled for 

work. He submitted August 31 and September 14, 2015 reports from Dr. Haraszti, an attending 

Board-certified orthopedic surgeon, who diagnosed a patellar baja of unknown etiology, 

Appellant also provided copies of evidence previously of record. OWCP denied reconsideration 

by decision dated November 2, 2015, finding that his letter and accompanying documents were 

either repetitious or irrelevant. 

The Board finds that OWCP appropriately denied reconsideration as appellant’s 

argument was not relevant to the claim. The critical issue was whether residuals of the accepted 

right knee conditions disabled him for work on and after August 20, 2013. Appellant’s letter is 

not medical evidence and is thus irrelevant to that issue. Therefore, it does not comprise a basis 

for reopening the case.12 The copies of medical evidence previously of record are duplicative. 

Evidence which is duplicative, cumulative, or repetitive in nature is insufficient to warrant 

reopening a claim for merit review.13 The duplicate copies of medical evidence are therefore 

insufficient to warrant consideration on the merits. 

Dr. Haraszti’s reports are new medical evidence not previously considered by OWCP. 

However, they are not relevant to the claim as they do not address whether appellant’s right knee 

 12 Joseph A. Brown, Jr., 55 ECAB 542 (2004).

13 Denis M. Dupor, 51 ECAB 482 (2000). 
7

worsened beginning August 30, 2013. Therefore, these reports do not warrant a review of the 

merits of the claim.14

On appeal, appellant asserts that his physicians supported that his patellar pain remained 

related to his original injury. This argument pertains to the merits of the claim, which are not 

before the Board on the present appeal. 

Appellant has not met any of the criteria for a merit review. Therefore, pursuant to 20 

C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further merit review 

of his claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the November 2, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 20, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 The submission of evidence or argument which does not address the particular issue involved does constitute a 

basic for reopening a case. See S.O., Docket No. 16-0973 (issued August 4, 2016); Edward Matthew Diekemper, 31 

ECAB 224-25 (1979).