United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kelso, WA, Employer 

__________________________________________ 

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Docket No. 16-1576 

Issued: November 18, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 30, 2016 appellant filed a timely appeal from a July 19, 2016 nonmerit decision 

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

between June 22, 2015, the date of the most recent merit decision, 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 over the merits of appellant’s claim. 

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 

On November 29, 2006 appellant, then a 45-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging a right elbow condition due to the repetitive sorting, casing, 

 1

 5 U.S.C. § 8101 et seq. 
2

and delivering of mail she performed in her job for the prior 12 years. She stopped work on 

November 24, 2006.2

OWCP accepted lateral epicondylitis of her right elbow. The accepted conditions were 

later expanded to include medial epicondylitis of her right elbow. Appellant received disability 

compensation on the daily rolls beginning November 27, 2006. On July 31, 2008 she underwent 

OWCP-sponsored right lateral and medial epicondylar revision surgery. 

Appellant returned to part-time work for the employing establishment on July 13, 2010. 

She stopped work again on August 8, 2010 and has not returned. 

In January 2013 OWCP assigned appellant to a vocational rehabilitation counselor as part 

of a vocational rehabilitation program designed to return her to work. 

In a decision dated September 24, 2013, OWCP adjusted appellant’s compensation 

effective September 24, 2013, under sections 8113(b) and 8104 of FECA, because she failed, 

without good cause, to undergo vocational rehabilitation as directed.3 It reduced her 

compensation based on her ability to earn wages in the constructed position of telephone 

solicitor. 

In late May 2014 appellant’s vocational rehabilitation counselor selected the position of 

telephone solicitor from the Department of Labor’s Dictionary of Occupational Titles (DOT). 

The position bears the DOT No. 299.357-014. The vocational rehabilitation counselor 

determined that appellant was able to perform the position of telephone solicitor and that state 

employment services showed the position was available in sufficient number so as to make it 

reasonably available within her commuting area. She determined that appellant had failed to 

cooperate with vocational rehabilitation efforts because she ceased participation in vocational 

training without good cause. 

Appellant requested a hearing with an OWCP hearing representative and, in a May 14, 

2014 decision, the hearing representative reversed OWCP’s September 24, 2014 decision 

because the medical evidence OWCP relied upon to find that appellant could work as a 

telephone solicitor was considered to be stale. 

In late May 2014 OWCP referred appellant to Dr. Aleksander Curcin, a Board-certified 

orthopedic surgeon, for an examination and opinion on her ability to work. It provided 

Dr. Curcin with a description of the job duties and physical requirements of her regular job as a 

rural carrier and the constructed position of telephone solicitor.4

 2

 Under File No. xxxxxx904, OWCP accepted a right hand contusion on October 21, 2000 when she hit her right 

hand. The claim was administratively closed on September 24, 2001. Appellant also filed a claim (File No. 

xxxxxx941) for a sprained right wrist due to an April 25, 2006 fall. The claim was not formally adjudicated and it 

was administratively closed on May 1, 2006. 

3

 OWCP had advised appellant of this proposed action in a letter dated August 16, 2013. 

4

 OWCP provided Dr. Curcin with a statement of accepted facts which discussed appellant’s factual and medical 

history, including her history of medical conditions and surgeries, whether related to her federal employment or not. 
3

In a report dated June 23, 2014, Dr. Curcin discussed appellant’s factual and medical 

history and reported the findings of the physical examination he conducted on that date. He 

indicated that appellant still had some residuals of her accepted work injuries and could not 

perform her regular work, but posited that she could work with restrictions. Dr. Curcin provided 

an opinion that, when considering all of appellant’s medical conditions, she was capable of 

performing the position of telephone solicitor. 

In a July 17, 2014 letter, OWCP advised appellant that, under sections 8113(b) and 8104 

of FECA, it proposed to adjust her compensation because she had failed, without good cause, to 

undergo vocational rehabilitation as directed. It provided her 30 days to resume her participation 

in vocational rehabilitation efforts or show good cause for not doing so. OWCP informed 

appellant that, if she did not resume her participation in vocational rehabilitation efforts or show 

good cause for not doing so in the allotted period, it would reduce her compensation based on the 

determination that she would have been able to earn wages in the constructed position of 

telephone solicitor if she had completed the vocational rehabilitation program. It indicated that 

the June 23, 2014 opinion of Dr. Curcin, OWCP’s referral physician, showed that she could 

work as a telephone solicitor. 

Appellant submitted reports of attending physicians, including several reports of 

Dr. Demitri Adarmes, a Board-certified internist. 

In an October 7, 2014 decision, OWCP adjusted appellant’s compensation effective 

October 7, 2014, under sections 8113(b) and 8104 of FECA, because she failed, without good 

cause, to undergo vocational rehabilitation as directed. It found that she had failed to resume her 

participation in vocational rehabilitation efforts or show good cause for not doing so and adjusted 

her compensation based on the determination that she would have been able to earn wages in the 

constructed position of telephone solicitor if she had completed the vocational rehabilitation 

program. OWCP found that the weight of the medical evidence regarding appellant’s ability to 

work rested with the well-rationalized June 23, 2014 opinion of Dr. Curcin. It also found that the 

reports of her attending physicians were of limited probative value regarding her ability to work.5

Appellant submitted an October 22, 2014 letter in which she indicated that OWCP relied 

on stale medical evidence to determine her ability to work and argued that the June 23, 2014 

report of Dr. Curcin did not contain a probative medical opinion on her ability to work. She 

requested a hearing with an OWCP hearing representative. During the hearing held on May 11, 

2015, appellant testified that she felt that she was physically unable to work as a telephone 

solicitor. 

In a decision dated June 22, 2015, OWCP’s hearing representative affirmed OWCP’s 

October 7, 2014 decision noting that it properly adjusted appellant’s compensation effective 

October 7, 2014, under sections 8113(b) and 8104 of FECA, because she failed, without good 

cause, to undergo vocational rehabilitation as directed. She found that the weight of the medical 

evidence regarding appellant’s ability to work rested with the well-rationalized June 23, 2014 

 5

 In a January 6, 2015 decision, OWCP granted appellant a schedule award for nine percent permanent 

impairment of her right upper extremity. Appellant requested a hearing with an OWCP hearing representative and, 

by decision dated October 28, 2015, the hearing representative affirmed OWCP’s January 6, 2015 decision. 
4

opinion of Dr. Curcin. The hearing representative determined that the reports of appellant’s 

attending physicians were of limited probative value regarding her ability to work. 

In a June 15, 2016 letter, received by OWCP on June 21, 2016, appellant requested 

reconsideration of OWCP’s June 22, 2015 decision. She argued that the adjustment of her 

compensation for failure to participate in vocational rehabilitation efforts was based on stale 

medical evidence. Appellant indicated that she refused to sign a vocational rehabilitation plan 

that was presented to her in 2014 because she felt that it contained errors regarding her ability to 

work. She asserted that the June 23, 2014 report of Dr. Curcin did not contain a probative 

opinion on her ability to work and argued that the reports of attending physicians showed that 

she could not work as a telephone solicitor. 

Appellant submitted an October 22, 2014 letter which had previously been submitted to 

OWCP. She also submitted a copy of OWCP’s October 7, 2014 decision. 

By decision dated July 19, 2016, OWCP denied appellant’s request for further review of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a) noting that the evidence submitted by 

appellant in support of her timely reconsideration request was repetitious and had already been 

considered by OWCP in its prior decisions. 

LEGAL PRECEDENT 

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

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.7 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.8

 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.9 The Board has held that the submission of evidence or argument 

which repeats or duplicates evidence or argument already in the case record10 and the submission 

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

basis for reopening a case.11 While a reopening of a case may be predicated solely on a legal 

 6

 Under section 8128 of FECA, “[t]he 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). 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.607(a). 

9 Id. at § 10.608(b). 

10 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980). 

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

premise not previously considered, such reopening is not required where the legal contention 

does not have a reasonable color of validity.12 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened before it may terminate or modify compensation benefits.13 Section 8113(b) of FECA 

provides that, if an individual, without good cause, fails to apply for and undergo vocational 

rehabilitation when so directed under section 8104 of FECA, OWCP, “after finding that in the 

absence of the failure the wage-earning capacity of the individual would probably have 

substantially increased, may reduce prospectively the monetary compensation of the individual in 

accordance with what would probably have been his [or her] wage-earning capacity in the absence 

of the failure,” until the individual in good faith complies with the direction of OWCP.14

Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP 

will take when an employee without good cause fails or refuses to apply for, undergo, participate 

in, or continue to participate in a vocational rehabilitation effort when so directed. Section 

10.519(a) provides, in pertinent part: 

“Where a suitable job has been identified, OWCP will reduce the employee’s 

future monetary compensation based on the amount which would likely have been 

his or her wage-earning capacity had he or she undergone vocational 

rehabilitation. OWCP will determine this amount in accordance with the job 

identified through the vocational rehabilitation planning process, which includes 

meetings with the OWCP nurse and the employ[ing establishment]. The 

reduction will remain in effect until such time as the employee acts in good faith 

to comply with the direction of OWCP.”15

ANALYSIS 

OWCP issued a decision on June 22, 2015. Appellant timely requested reconsideration 

of this decision in a document received by OWCP on June 21, 2016.16 

As noted above, the Board does not have jurisdiction over the June 22, 2015 OWCP 

decision. 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 application for reconsideration, appellant did not show that OWCP erroneously 

 12 John F. Critz, 44 ECAB 788, 794 (1993). 

13 Betty F. Wade, 37 ECAB 556, 565 (1986). 

14 5 U.S.C. § 8113(b). 

15 20 C.F.R. § 10.519(a). 

16 OWCP’s regulations at 20 C.F.R. § 10.607(a) establish a one-year time limit for requesting reconsideration. 

The one-year period begins on the date of the original decision, and an application for reconsideration must be 

received by OWCP within one year of the date of the OWCP decision for which review is sought for merit decisions 

issued on or after August 29, 2011. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.4 (October 2011). 
6

applied or interpreted a specific point of law. She did not identify a specific point of law or show 

that it was erroneously applied or interpreted, nor did she advance a new and relevant legal 

argument not previously considered by OWCP. 

Appellant’s argument was that OWCP improperly determined that she was capable of 

working in the constructed position of telephone solicitor, and therefore, improperly adjusted her 

compensation based on this determination.17 She argued that the adjustment of her compensation 

for failure to participate in vocational rehabilitation efforts was based on stale medical evidence. 

Appellant asserted that the June 23, 2014 report of Dr. Curcin did not contain a probative 

medical opinion on her ability to work and argued that the reports of attending physicians 

showed that she could not work as a telephone solicitor. However, OWCP has already 

considered these arguments in its October 7, 2014 and June 22, 2015 decisions and determined 

that the June 23, 2014 report of Dr. Curcin did, in fact, contain a probative medical opinion 

showing that she could work as a telephone solicitor. OWCP determined that Dr. Curcin’s 

June 23, 2014 medical opinion was sufficiently current and well rationalized to represent 

appellant’s ability to work.18

The question of appellant’s physical ability to work as a telephone solicitor is a medical 

issue which must be addressed by relevant medical evidence.19 A claimant may be entitled to a 

merit review by submitting pertinent new and relevant evidence, but appellant did not submit any 

such evidence in this case. 

Appellant submitted an October 22, 2014 letter in connection with her reconsideration 

request, but this letter had already been submitted and considered by OWCP. The Board further 

notes that appellant’s June 22, 2016 letter contains arguments that are similar to those contained 

in her October 22, 2014 letter. Appellant submitted a copy of OWCP’s October 7, 2014 

decision, but this document was already in the case record and would not constitute new 

evidence regarding appellant’s ability to earn wages as a telephone solicitor. 

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

20 C.F.R. § 10.606(b)(3). 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 reconsideration of the 

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

 17 The Board notes that, in her June 21, 2016 reconsideration request, appellant does not appear to contest 

OWCP’s determination that she failed to participate in vocational rehabilitation efforts. 

18 Moreover, OWCP considered the attending physician reports of record and found that this evidence did not 

show that appellant was incapable of working as a telephone solicitor. 

19 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 19, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board