United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.T., Appellant 

and 

U.S. POSTAL SERVICE, NORTH METRO 

PROCESSING & DISTRIBUTION CENTER, 

Duluth, GA, Employer 

__________________________________________ 

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Docket No. 17-0383 

Issued: April 18, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 12, 2016 appellant, through counsel, filed a timely appeal of an August 25, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from OWCP’s most recent merit decision dated April 21, 2016, 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 over the merits of appellant’s claim.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 The Board, however, notes that on July 26, 2016 OWCP issued appellant a schedule award for three percent left 

upper extremity permanent impairment. Appellant did not file an appeal of that decision with the Board. 
2

ISSUE 

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

the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

This case has previously been before the Board.4

 In a December 13, 2010 decision, the 

Board found the case was not in posture for decision regarding the degree of permanent 

impairment of appellant’s right arm.5

 In a March 19, 2015 decision, the Board found that OWCP 

had met its burden of proof to reduce appellant’s wage-loss compensation on April 2, 2014 based 

on her capacity to earn wages in the constructed position of receptionist. OWCP found that the 

weight of the evidence regarding appellant’s work ability rested with the opinion of Dr. Brian E. 

Morgan, an attending Board-certified orthopedic surgeon, who advised that appellant was no 

longer disabled from all work. The Board, however, found that OWCP erred in merit decisions 

dated July 17 and August 25, 2014, when it reviewed the case under section 8128 of FECA (5 

U.S.C. § 8128(a)) and section 10.609 of OWCP regulations (20 C.F.R. § 10.609). The Board 

found that OWCP should have adjudicated the issue as a modification of the loss of wageearning capacity determination and remanded the case to OWCP for proper adjudication, to be 

followed by an appropriate merit decision to preserve appellant’s appeal rights on this issue.6

Following remand, in a June 16, 2015 decision, OWCP reviewed the case using the 

proper standard, but denied modification of the April 2, 2014 loss of wage-earning capacity 

determination.7 Appellant, through counsel, timely requested a hearing with a representative of 

OWCP’s Branch of Hearings and Review. At the hearing, held on February 11, 2016, appellant 

testified that she could not perform the receptionist position because she had memory loss due to 

diabetes and could not learn computer skills. She also indicated that because she had a frozen 

shoulder, she could not perform the duties of receptionist. 

 4

 On October 22, 2005 appellant, a mail handler, filed an occupational disease claim (Form CA-2) that was 

accepted for right lateral epicondylitis. OWCP adjudicated the claim under File No. xxxxxx861. On July 30, 2007 

appellant filed a traumatic injury claim (Form CA-1) for a left elbow condition, adjudicated by OWCP under File 

No. xxxxxx069. This claim was initially accepted for left lateral epicondylitis and later expanded to include left 

elbow tenosynovitis and right shoulder strain. Appellant also filed a traumatic injury claim (Form CA-1) on 

December 22, 2007, adjudicated under File No. xxxxxx009, accepted for left shoulder impingement syndrome and 

left shoulder rotator cuff tear. The three files were combined under File No. xxxxxx069. 

5

 Docket No. 10-1008 (issued December 13, 2010). Appellant had previously been granted a schedule award for 

one percent permanent impairment of the right arm on April 26, 2007, and on January 27, 2009 a schedule award for 

six percent permanent impairment of the left arm. On June 30, 2009 she was granted a schedule award for an 

additional two percent right arm permanent impairment. After the Board’s December 13, 2010 decision, in a 

February 7, 2011 decision, OWCP reiterated that appellant had three percent right arm permanent impairment. In 

June 16, 2011 and July 10, 2013 decisions, it determined that she was not entitled to schedule awards greater than 

those received for either the right or left arms. 

6

 Docket No. 14-2040 (issued March 19, 2015). 

7

 OWCP previously issued a decision on June 4, 2015 denying modification of the April 2, 2014 decision. On 

June 11, 2016 it vacated the June 4, 2015 decision and noted that a new decision would be issued regarding 

appellant’s request to modify the April 2, 2014 loss of wage-earning capacity determination. 
3

Appellant elected Office of Personnel Management (OPM) retirement, effective 

March 1, 2016. 

In correspondence dated April 27, 2016, counsel asked that additional conditions of left 

shoulder pain, rotator cuff tendinitis, left elbow pain, ulnohumeral arthritis, and mild-tomoderate left shoulder degenerative joint disease be accepted. He attached a May 5, 2015 left 

shoulder magnetic resonance imaging (MRI) scan suggested a tiny supraspinatus perforation and 

mild-to-moderate osteoarthritis. In a May 11, 2015 report, Dr. Raymond C. Hui, a Boardcertified orthopedic surgeon, reviewed the left shoulder MRI scan and diagnosed the above-listed 

conditions. 

By decision dated April 21, 2016, an OWCP hearing representative affirmed the June 16, 

2015 decision that had denied modification of the April 2, 2014 loss of wage-earning capacity 

decision. 

In a May 26, 2016 letter, OWCP informed appellant of the accepted conditions which 

were osteoarthritis, left shoulder; tendinitis (rotator cuff) of left shoulder; lateral epicondylitis, 

bilateral; closed dislocation of elbow, bilateral; sprain of shoulder and upper arm, rotator cuff 

bilateral; wrist sprain, bilateral; and lesion of ulnar nerve, bilateral.8

In correspondence dated and reviewed August 11, 2016, appellant, through counsel, 

requested reconsideration of the April 21, 2016 decision. Counsel attached the May 26, 2016 

acceptance letter and stated: 

“Upon receipt of this request, please review all necessary documents before 

making a decision. Based upon this new evidence, the decision should be 

vacated. The previous decision should be overturned.” 

In a nonmerit decision dated August 25, 2016, OWCP denied appellant’s reconsideration 

request. 

LEGAL PRECEDENT 

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

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.9

 Section 10.608(a) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the employee has presented 

 8

 Appellant filed a schedule award claim (Form CA-7) on June 30, 2016. In a July 10, 2016 report, an OWCP 

medical adviser opined that appellant had three percent left arm permanent impairment for partial thickness rotator 

cuff tear. The medical adviser noted that appellant had previously received a schedule award for three percent right 

arm permanent impairment. In a July 26, 2016 decision, appellant was granted a schedule award for three percent 

left arm permanent impairment. The Board, however, notes that under File No. xxxxxx009, appellant received a 

schedule award for six percent permanent impairment of the left arm on January 27, 2009. This award was for left 

rotator cuff tear and impingement syndrome. See supra note 5. Counsel has not appealed the July 26, 2016 decision 

to the Board. 

9

 5 U.S.C. § 8128(a). 
4

evidence and/or argument that meets at least one of the standards described in section 

10.606(b)(3).10 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

evidence not previously considered by OWCP.11 Section 10.608(b) provides that when a request 

for reconsideration is timely but fails to meet at least one of these three requirements, OWCP 

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

merits.12

ANALYSIS 

The only decision before the Board in this appeal is the nonmerit decision of OWCP 

dated August 25, 2016 denying appellant’s application for review. 

With the August 11, 2016 request for reconsideration, counsel attached a May 26, 2016 

acceptance letter in which OWCP listed all accepted conditions. He maintained that since this 

letter showed newly accepted conditions, the previous decision should be overturned. However, 

the merit issue was whether an April 2, 2014 loss of wage-earning capacity determination should 

be modified. Modification is only warranted where the party seeking modification establishes a 

material change in the nature and extent of the injury-related condition, the employee has been 

retrained or otherwise vocationally rehabilitated, or the original determination was, in fact, 

erroneous.13 Counsel’s attachment of the letter showing accepted conditions and his mere 

assertion that the previous decision should be overturned does not show that OWCP erroneously 

applied or interpreted a specific point of law or advance a relevant legal argument not previously 

considered by OWCP. Consequently, appellant was not entitled to a review of the merits of the 

claim based on the first and second above-noted requirements under section 10.606(b).14 As to 

the third above-noted requirement under section 10.606(b)(3), while he submitted the acceptance 

letter, this does not address the particular merit issue described above. The hearing 

representative noted in her merit decision that appellant had not provided a physician’s report 

containing medical rationale or objective findings to support modification of the wage-earning 

capacity determination due to a material worsening of appellant’s accepted condition. The 

reconsideration request contained no new medical opinion evidence. The submission of 

evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.15

 10 20 C.F.R. § 10.608(a). 

11 Id. at § 10.606(b)(3). 

12 Id. at § 10.608(b). 

13 Id. at § 10.511. 

14 Id. at § 10.606(b). 

15 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
5

While the May 26, 2016 OWCP letter is new, counsel provided no argument as to its 

relevance to the underlying issue. While it does appear from the May 26, 2016 letter that OWCP 

expanded the accepted condition, this alone is not sufficient to establish its relevance, thereby 

warranting a merit review. 

As appellant did not show that OWCP erred in applying a point of law, advance a 

relevant legal argument not previously considered, or submit relevant and pertinent new 

evidence not previously considered by OWCP, it properly denied her reconsideration request. 

CONCLUSION 

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

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).16

ORDER 

IT IS HEREBY ORDERED THAT the August 25, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 18, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 Appellant may request modification of the loss of wage-earning capacity determination, supported by new 

evidence or argument, at any time before OWCP.