United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford Park, IL, Employer 

__________________________________________ 

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Docket No. 15-1028 

Issued: August 25, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 2, 2015 appellant filed a timely application from two February 11, 2015 

nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). Because more 

than 180 days elapsed from September 16, 2014, the date of the most recent adverse merit 

decision of OWCP, 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 appellant’s claim. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 7, 2012 appellant, then a 27-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging a left hip and thigh cramp as a result of picking up a full tray of 

mail. She stopped work on that day. OWCP accepted appellant’s claim for a left hip sprain on 

February 12, 2013 and she began receiving periodic rolls payments. 

In a duty status report dated December 3, 2013, Dr. William Payne, a Board-certified 

orthopedic surgeon, recommended work restrictions of lifting or carrying no more than 10 to 20 

pounds; sitting no more than four hours per day; walking no more than four hours per day; 

simple grasping no more than four hours per day; operating machinery no more than four hours 

per day; and no twisting, climbing, kneeling, pushing or pulling, bending or stooping. 

On February 1, 2014 appellant accepted a modified position as a rural carrier within her 

work restrictions. 

By decision dated June 12, 2014, OWCP notified appellant that it had found that her 

actual earnings fairly and reasonably represented her wage-earning capacity and met or exceeded 

the current wages of the job held when she was injured. This loss of wage-earning capacity 

determination found that her wage-loss compensation ended when she was reemployed with no 

loss in earning capacity. 

On September 4, 2014 appellant requested compensation for leave without pay from 

July 17 through 28, 2014. She explained that on these dates she was not working while under the 

orders of her physician. 

By letter dated August 20, 2014, Dr. Eugene Lopez, a Board-certified orthopedic 

surgeon, noted that on July 17, 2014 he took appellant off work beginning July 17, 2014, with a 

return to work with restrictions on July 28, 2014 due to the severe flare-ups and pain she was 

experiencing. He noted that it was imperative that appellant refrain from any kind of work 

during that period to decrease her symptoms. 

By decision dated September 16, 2014, OWCP denied appellant’s claim for 

compensation for the period July 17 through 28, 2014. It stated that the letter dated August 20, 

2014 was insufficient to support her claim for compensation, because increased subjective pain 

complaints or becoming symptomatic at work did not support total disability from all work. 

OWCP requested that appellant provide a well-rationalized medical report providing explanation 

based on objective findings supporting a material worsening of the work injury of November 7, 

2012 and how such material worsening prevented her from performing the limited-duty position 

she had worked since February 8, 2014. 

In a work restriction form dated October 3, 2014, Dr. Bruce J. Montella, a Board-certified 

orthopedic surgeon, recommended that appellant work a limited-duty position with restrictions of 

no excessive twisting, turning, bending, climbing stairs, kneeling, squatting, lifting over 15 

pounds, sitting, or standing and no sitting for more than two hours. He noted that appellant could 

only work up to six hours per day and that she could return to work with these restrictions on 

October 13, 2014. 
3

On October 6, 2014 appellant requested reconsideration of OWCP’s June 12, 2014 wageearning capacity decision. She stated that she had new symptoms due to her original 

November 7, 2012 injury. Appellant noted that she was required to sit excessively to perform 

the duties of her modified position and that her current duties did not coincide with her current 

restrictions as set forth in the most recent medical reports. On the same date, she requested 

reconsideration of OWCP’s September 16, 2014 decision regarding compensation for the period 

July 17 to 28, 2014. Appellant noted that on the relevant dates she could not perform duties of 

her position due to an inability to sit at her desk due to numbness in her left leg and foot. 

In a report dated September 3, 2014, Dr. Montella noted no significant changes in her 

current symptoms. He also noted that she could return to work with restrictions of no excessive 

twisting, turning, bending, sitting, standing, climbing of stairs, kneeling, or squatting; and no 

lifting over 15 pounds. 

In a report dated September 22, 2014, Dr. Lopez noted no significant changes in 

appellant’s current symptoms. He also noted that she could return to work with the same 

restrictions as in Dr. Montella’s September 3, 2014 report. 

In a note dated September 29, 2014, Dr. Lopez duplicated word-for-word his report dated 

August 20, 2014. 

On February 11, 2015 OWCP denied appellant’s request for reconsideration of its wageearning capacity decision dated June 12, 2014. It noted that she had failed to raise substantive 

legal questions or include new and relevant evidence. On the same date, OWCP denied 

appellant’s request for reconsideration of its decision dated September 16, 2014 regarding the 

limited period of total disability. It found that the note of Dr. Lopez dated September 29, 2014 

was a duplication of his August 20, 2014 note and therefore did not prove wage loss for the 

claimed period. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

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.2

 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration 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.3

The Board has found that evidence that repeats or duplicates evidence already in the case 

record has no evidentiary value.4 The Board also has held that the submission of evidence which 

 2

 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 

3 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

4 See Daniel Deparini, 44 ECAB 657, 659 (1993). 
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does not address the particular issue involved does not constitute a basis for reopening a case.5 

While the reopening of a case may be predicated solely on a legal premise not previously 

considered, such reopening is not required where the legal contention does not have a reasonable 

color of validity.6

It is well established that either a claimant or OWCP may seek to modify a formal wageearning capacity determination. Once the wage-earning capacity of an injured employee is 

determined, a modification of such determination is not warranted unless there is 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.7 

The burden of proof is on the party attempting to show modification.8

 There is no time limit for 

appellant to submit a request for modification of a wage-earning capacity determination.9

ANALYSIS 

OWCP issued a June 12, 2014 decision finding that appellant had experienced no loss of 

her wage-earning capacity. It also issued a September 16, 2014 decision denying her claim for 

compensation for leave without pay for the period July 17 through 28, 2014. On October 6, 2014 

appellant requested reconsideration of both of these decisions. In two separate decisions dated 

February 11, 2015, OWCP denied her requests for reconsideration without reviewing the merits 

of her claims. 

The Board finds that appellant has not met any of the requirements under 20 C.F.R. 

§ 10.606(b)(3) requiring OWCP to reopen her claim for disability for the period July 17 

to 28, 2014. Appellant did not submit any relevant and pertinent new evidence with her request 

for reconsideration of the September 16, 2014 decision. While she submitted a note dated 

September 29, 2014 from Dr. Lopez that was relevant to this issue, this note was previously 

considered by OWCP in its September 16, 2014 decision. The note, in its entirety except for the 

date, was a duplicate of Dr. Lopez’s August 20, 2014 letter. Evidence that repeats or duplicates 

evidence already in the case record has no evidentiary value on reconsideration.10 Hence, the 

note dated September 29, 2014 was insufficient to require OWCP to reopen this decision for 

merit consideration. Appellant did not submit any other evidence relevant to the dates of 

disability in question. As such, the Board finds that OWCP properly denied her request for 

reconsideration of its September 16, 2014 decision. 

 5 P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB 

180, 187 (2000). 

6 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 

7 Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra 

McCauley, 51 ECAB 375 (2000). 

8 Darletha Coleman, 55 ECAB 143 (2003). 

9 W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003). 

10 Supra note 4. 
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However, as to the request for reconsideration of her loss of wage-earning capacity, 

Board precedent and OWCP procedures direct that a claims examiner must consider the criteria 

for modification of a loss of wage-earning capacity determination when a claimant requests 

resumption of compensation for total wage loss in a pending claim.11 

OWCP considered appellant’s October 6, 2014 letters as requests for reconsideration of 

the June 12, 2014 wage-earning capacity determination and the September 16, 2014 decision, 

denying her claim for wage loss, under the standards set forth in 5 U.S.C. § 8128(a). It found 

that her requests were timely, but failed to set forth a basis for reconsideration of the merits of 

her claims. 

While appellant used the term reconsideration in both letters, she was in fact arguing that 

the June 12, 2014 loss of wage-earning capacity should be modified. She submitted additional 

medical evidence which set forth work restrictions that she alleged made her unable to sit at her 

desk or put pressure on her hip. Appellant argued that she was no longer able to perform her 

modified work position as her new restrictions precluded some of her work activities and 

resulted in new and increased symptoms. A material change in the nature and extent of the 

accepted condition is one basis on which a claimant may seek modification of a wage-earning 

capacity determination.12 Appellant’s letter of October 6, 2014, in reference to the decision of 

June 12, 2014, is therefore properly considered as a request for modification of the wage-earning 

capacity determination, not as a request for a review of her claim under 5 U.S.C. § 8128(a). The 

Board therefore finds that OWCP should have adjudicated the issue of her claim as a request for 

modification of the wage-earning capacity determination,13 and was in error to adjudicate that 

issue as a request for reconsideration.14 

The case will be remanded to OWCP to adjudicate her request for modification of the 

wage-earning capacity determination, to be followed by a de novo decision to preserve 

appellant’s appeal rights. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for review of the merits 

of her claim for leave without pay for the period July 17 through 28, 2014 pursuant to 5 U.S.C. 

 11 Katherine T. Kreger, supra note 7; Sharon C. Clement, supra note 7; Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.5(a) (June 2013) (if a 

claim for wage loss is received, OWCP should review the file to determine whether a formal loss of wage-earning 

capacity is in place, and, if so, the claim should be developed, if necessary, as a request for modification of the loss 

of wage-earning capacity). 

12 Once the wage-earning capacity of an injured employee is determined, a modification of such determination is 

not warranted unless there is 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. 

Stanley B. Plotkin, 51 ECAB 700 (2000); see also Federal (FECA) Procedure Manual, id. at Chapter 2.1501.2(b) 

(June 2013). 

13 G.E., Docket No. 13-649 (issued October 21, 2013); F.B., Docket No. 10-99 (issued July 21, 2010). 

14 F.B., id. See M.J., Docket No. 08-2280 (issued July 7, 2009). See also Gary L. Moreland, supra note 9. 
6

§ 8128(a), but improperly denied appellant’s request for modification of the June 12, 2014 wageearning capacity determination. 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated February 11, 2015 are affirmed in part and set aside and 

remanded in part for further proceedings consistent with this decision and order of the Board.15

Issued: August 25, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 15 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective, November 16, 2015.