United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Shelton, CT, Employer 

__________________________________________ 

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Docket No. 16-0966 

Issued: August 22, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 30, 2016 appellant filed a timely appeal from an October 8, 2015 nonmerit 

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

has elapsed from the last OWCP merit decision dated September 5, 2013, and 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.2

 1

 5 U.S.C. § 8101 et seq. 

2

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from October 8, 2015, the date of the last decision was 

April 5, 2016. Since using April 6, 2016, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is March 30, 3016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

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 

This case has previously been before the Board. In a January 23, 2003 decision, the 

Board affirmed a January 24, 2002 OWCP decision finding that OWCP met its burden of proof 

to terminate appellant’s compensation based on her refusal of suitable work.3

 In a September 12, 

2014 decision, the Board affirmed a September 5, 2013 OWCP decision finding that appellant 

did not establish that her refusal of suitable work was justified.4

 The facts and circumstances of 

the case and as set forth in the Board’s prior decision are incorporated herein by reference. 

In an appeal request form received on August 11, 2015, appellant requested 

reconsideration of the September 12, 2014 Board decision. In a narrative statement of the same 

date, she referenced page four of the Board’s September 12, 2014 decision which found: 

“Therefore, these reports do establish that appellant’s refusal of the offered position was 

justified.” Appellant indicated that while she was an employee she always reported for work and 

carried out her work duties that her doctors found suitable. She noted that she did not refuse 

work and her time cards prove that she reported for work until her retirement on June 1, 2011. 

Appellant reported suffering for years from the results of her injuries sustained while employed 

with the employing establishment. She noted that after her retirement she sought treatment for 

her work injuries and underwent two operations. On August 11, 2011 appellant had a lipoma on 

her lower back removed and on January 6, 2015 she had neck surgery. Appellant noted 

attending every medical examination scheduled. She stated that she was seeking justice as she 

was injured while working and was unable to work in a full capacity due to the lack of proper 

medical treatment. Appellant indicated that these circumstances affected her family physically, 

emotionally, and financially. She submitted an excerpt from page four of the Board’s decision 

dated September 12, 2014. 

In an October 8, 2015 decision, OWCP denied appellant’s request for reconsideration on 

the grounds that the evidence submitted was insufficient to warrant a merit review. 

 3

 Docket No. 02-1023 (issued January 23, 2003). On February 7, 1994 appellant, a letter carrier, was injured 

when she slipped on ice. OWCP accepted the claim for concussion and contusions of the cervical and lumbar spine. 

Appellant eventually returned to light duty four hours per day. OWCP determined that a conflict of medical opinion 

existed between Dr. William S. Lewis, a Board-certified orthopedist, her treating physician, who indicated that she 

could work light duty four hours per day, and Dr. Alan H. Goodman, a Board-certified orthopedist, an OWCP 

referral physician, who determined that she had no residuals of the accepted conditions and could work full time. 

Appellant was referred to Dr. Kenneth M. Kramer, a Board-certified orthopedist, to resolve the conflict. In an 

October 5, 1999 report, Dr. Kramer found that she could work four hours per day within certain restrictions. The 

employing establishment offered appellant a modified light-duty position on December 21, 1999 conforming to 

Dr. Kramer’s restrictions. Appellant declined the December 21, 1999 job offer. After providing her required 

procedural notices that the reasons for her refusal of the offered position were not justified, OWCP, on February 28, 

2000, terminated her compensation for refusing suitable work. 

4

 Docket No. 14-0476 (issued September 12, 2014). 
3

LEGAL PRECEDENT 

Under section 8128(a) of FECA,5 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence that: 

“(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.”6

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.7

ANALYSIS 

The Board, in its prior decision, found that the evidence submitted was insufficient to 

meet appellant’s burden of proof to establish that her refusal to accept the suitable work was 

justified. Thereafter, OWCP denied appellant’s reconsideration request, without a merit review. 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

In her request for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. In her August 4, 2015 request for reconsideration, she 

referenced page four of the Board’s decision which found, “Therefore, these reports do establish 

that appellant’s refusal of the offered position was justified.” Appellant indicated that she always 

reported for work and carried out the duties that her doctors found suitable. She noted that she 

did not refuse work and her time cards prove that she reported for work until her retirement on 

June 1, 2011. Appellant reported suffering for years from the results of her work injuries and 

that she underwent two operations on her lower back and neck. She noted attending every 

medical examination scheduled. Appellant stated that she was seeking justice as she was injured 

while working and was unable to work in full capacity due to the lack of proper medical 

treatment. These assertions do not show a legal error by OWCP or a new and relevant legal 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(b). 
4

argument. These assertions are similar to assertions considered by the Board in its 

September 12, 2014 decision.8

The underlying issue in this case pertains to whether appellant submitted medical 

evidence establishing that her refusal to accept the suitable work was justified. That is a medical 

issue which must be addressed by relevant new medical evidence.9

 However, appellant did not 

submit any relevant and pertinent new medical evidence in support of her claim. She submitted 

the previously quoted excerpt from the Board’s decision. However, the Board notes that this 

sentence contains a typographical error as the decision clearly concluded that appellant’s refusal 

of suitable work was not justified. As explained, the underlying issue in this claim is whether the 

medical evidence establishes that appellant’s refusal to accept the suitable work was justified. 

Her submissions on reconsideration are not relevant to this underlying medical issue.10 

Therefore, this new evidence is insufficient to warrant reopening the case for a merit review. 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). She did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence. Pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied merit review. 

On appeal appellant reiterates her assertions that she never refused suitable work and that 

she strictly followed her attending physician’s orders and worked within the limitations of her 

physical capabilities. She notes in her letter of August 4, 2015 that after her retirement she 

underwent two surgeries to correct the damage caused by her work injuries. As explained, the 

Board does not have jurisdiction over the merits of the claim. 

CONCLUSION 

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

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

 8 See James W. Scott, 55 ECAB 606 (2004) (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). 

9 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

10 The Board has held that the submission of evidence which does not address the particular issue involved does 

not constitute a basis for reopening a case. See J.J., Docket No. 16-0555 (issued June 2, 2016); Edward Matthew 

Diekemper, 31 ECAB 224 (1979). 
5

ORDER 

IT IS HEREBY ORDERED THAT the October 8, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 22, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board