United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

McCordsville, IN, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1019 

Issued: May 4, 2017 

Appearances: Case Submitted on the Record

Joseph E. Allman, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On April 14, 2016 appellant, through counsel, filed a timely appeal from an October 30, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated July 15, 2014, 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 this case. 

 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. 
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 

On March 3, 2014 appellant, then a 47-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 3, 2014, she sustained injuries to her left lower 

abdominal quadrant and left leg. She indicated that she had left inguinal pain and vaginal 

bleeding. Appellant attributed her condition to heavy lifting.3 She reported carrying a parcel to 

the door, as well as lifting trays of mail and moving them from the back to the front of her work 

vehicle. Appellant stopped work on February 5, 2014. 

On her claim form, appellant reported that she first received medical treatment on 

February 7, 2014. On that same date, she saw Dr. Dennis Pippenger, a Board-certified 

gynecologist, who noted that appellant presented with a complaint of vaginal bleeding, which 

reportedly had been occurring for a week. Appellant’s prior surgical history included a 2005 

hernia repair, a 2007 excision of both ovaries (bilateral salpingo-oophorectomy - BSO), and a 

2007 total vaginal hysterectomy. Dr. Pippenger noted that appellant believed the bleeding may 

be caused by her hernia because it was heavier when she lifted things at work. He diagnosed 

postmenopausal vaginal bleeding and vaginal atrophy. Dr. Pippenger also noted that appellant 

may have an inguinal hernia, and that she lifted a lot at work. 

On February 14, 2014 Dr. Samuel Heiser, a Board-certified general surgeon, examined 

appellant for possible recurrent left inguinal hernia. He noted that she indicated that 

approximately 10 days prior, she was lifting a tray of mail weighing about 35 pounds. Appellant 

related to Dr. Heiser that she had experienced sudden discomfort in the left inguinal area and did 

not recall twisting in any particular direction or doing anything remarkable. Dr. Heiser remarked 

that appellant “simply developed sharp pain in the region.” He indicated that she believed that 

she may have developed a recurrence of her hernia, which had been surgically repaired in 2005. 

Dr. Heiser examined appellant and explained that it was possible that the hernia repair had failed, 

but he could not feel any evidence. He indicated a computerized tomography (CT) scan would 

help in that regard. Dr. Heiser also advised that appellant may have pulled the scar tissue in that 

area, which he had seen on occasion when someone twisted in a particular manner. However, he 

noted that the significant pain associated with pulled scar tissue usually resolved quickly. 

Dr. Heiser recommended pain medication and a CT scan. 

A February 17, 2014 abdomen/pelvis CT scan revealed no acute process, old 

granulomatous disease, status post left lower abdominal hernia repair, hepatomegaly (enlarged 

liver), and constipation. 

In a February 18, 2014 report, Dr. Heiser noted that he saw appellant on February 14 

and 18, 2014 following x-rays to determine the cause of discomfort in her left lower quadrant 

 3

 Appellant also noted that she underwent surgery on October 13, 2005 for a work-related hernia under OWCP 

File No. xxxxxx405. 
3

and left leg. He indicated that appellant’s reported discomfort “followed some heavy lifting at 

work.” Dr. Heiser advised that she would undergo further evaluation in order to “shed more 

light on her discomfort and its etiology.” 

On February 27, 2014 appellant received left lower quadrant myofascial trigger point 

injections. The reported history of injury was that on February 3, 2014, appellant experienced a 

sudden onset of left lower quadrant pain after she lifted a heavy box at work. The diagnoses 

included left lower quadrant pain and myofascial pain syndrome. 

In a February 28, 2014 follow-up report, Dr. Pippenger continued to diagnose 

postmenopausal vaginal bleeding and vaginal atrophy. At this visit, appellant reportedly felt fine 

now with no bleeding. The plan was for her to continue with her current medication and to 

follow-up as needed. 

In a March 11, 2014 report, Dr. Daniel T. McKenna, a general surgeon, noted that 

appellant underwent an uncomplicated laparoscopic left femoral hernia repair in 2005. He 

advised that appellant did a great deal of heavy lifting with her job as a mail carrier and had pain 

both before and after her surgery. Dr. McKenna indicated that the pain intensified when 

appellant lifted something heavy on February 3, 2014. He advised that she had heavy vaginal 

bleeding at the time. Dr. McKenna explained that appellant was advised not to do so much 

heavy lifting moving forward. He diagnosed inguinodynia, status post laparoscopic left inguinal 

hernia repair. Dr. McKenna discussed the etiology of her pain, which was unlikely to be from an 

inguinal hernia. He suspected that it was related to muscular strain or the mesh pulling on the 

musculature. Dr. McKenna wanted to ensure that there was no muscular swelling or tears and 

requested a magnetic resonance imaging (MRI) scan. He also completed a work/school excuse 

form advising “no lifting [at] all.” 

A March 18, 2014 MRI scan of the pelvis read by Dr. Fatih Akisik, a Board-certified 

diagnostic radiologist, revealed a limited study given susceptibility artifact from left femoral 

hernia surgical repair, but no evidence of T2 hyperintense inflammatory process within the 

adjacent abdominal wall musculature. Dr. Akisik also noted there were findings suggestive of 

pelvic floor congestion syndrome. 

In a March 18, 2014 report, Dr. McKenna advised that appellant continued to have 

abdominal and groin pain, which worsened with lifting. He noted that her pain began following 

lifting at work. Dr. McKenna reviewed the MRI scan results, and found that appellant did not 

demonstrate further damage or provide evidence of a recurrent hernia. He advised no heavy 

lifting in the future, which would preclude appellant from her job in the postal service. 

In a March 19, 2014 report, Dr. McKenna opined that appellant was not capable of 

performing the daily requirements of her current job due to the February 3, 2014 work injury. 

He advised that she was unable to lift, stand, bend, push, pull, or walk. 

In a May 1, 2014 report, Dr. McKenna indicated that appellant underwent a complicated 

laparoscopic left femoral hernia repair in 2005. He explained that she did a great deal of heavy 

lifting at work with her job as a mail carrier and had pain before and after the surgery. 

Dr. McKenna advised that the pain intensified on February 3, 2014 after appellant lifted 
4

something heavy. He noted that she had heavy bleeding at that time, and her gynecologist found 

that she had torn a part of her vaginal closure from the previous hysterectomy. Dr. McKenna 

indicated that there was no evidence of a recurrent hernia. He diagnosed inguinodynia, status 

post laparoscopic left inguinal hernia repair. Dr. McKenna suspected that appellant’s pain was 

related to muscular strain or the mesh pulling on the musculature. He explained that the chronic 

strain of lifting led to her chronic pain and previous inguinal hernia. Dr. McKenna advised that 

appellant should not perform any heavy lifting greater than 25 pounds, as this would aggravate 

her condition. 

In a May 29, 2014 report, Dr. McKenna repeated the findings of his May 1, 2014 report. 

He reiterated that appellant underwent a complicated laparoscopic left femoral hernia repair in 

2005. Dr. McKenna explained that appellant did a great deal of heavy lifting at work with her 

job as a mail carrier and had pain before and after the surgery. He advised that the pain 

intensified after she lifted something heavy on February 3, 2014. Dr. McKenna noted that she 

had heavy vaginal bleeding at that time and that her gynecologist found that she had torn part of 

her vaginal closure from the previous hysterectomy. He indicated that there was no evidence of 

a recurrent hernia. Dr. McKenna diagnosed inguinodynia, status post laparoscopic left inguinal 

hernia repair. He opined that it was unlikely to be from an inguinal hernia, and he suspected it 

was related to muscular strain or the mesh pulling on the musculature. Dr. McKenna explained 

that her pain began after lifting at work. He recommended that appellant undergo no heavy 

lifting and opined that the chronic strain of lifting led to her chronic pain and previous inguinal 

hernia. 

In a decision dated July 15, 2014, OWCP denied appellant’s claim as the medical 

evidence of record was insufficient to establish that a medical condition had been diagnosed in 

connection with the accepted February 3, 2014 employment incident. It explained that the 

medical evidence submitted did not contain a definitive medical diagnosis, and that pain was not 

a diagnosis. Consequently, OWCP denied appellant’s traumatic injury claim because of her 

failure to establish the medical component of fact of injury. 

On July 10, 2015 OWCP received a request for reconsideration from counsel. Counsel 

provided additional copies of Dr. McKenna’s March 19 and May 29, 2014 reports. He argued 

that this evidence was sufficient to satisfy appellant’s burden of proof under FECA, and that 

OWCP’s prior decision should be reversed. 

By decision dated October 30, 2015, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant a review of the 

merits of the claim. It found that the evidence was repetitious and consisted of a copy of a 

previously considered medical report from Dr. McKenna. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

 4

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 
5

limitations in exercising its authority.5

 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.6

 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

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

considered by OWCP.7 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.8

ANALYSIS 

In the July 10, 2015 request for reconsideration, counsel argued that Dr. McKenna’s 

March 19 and May 29, 2014 reports were sufficient to establish appellant’s entitlement to 

benefits under FECA. He argued that a “common sense” reading of Dr. McKenna’s report(s) 

established diagnoses related to the February 3, 2014 accepted employment incident. Apart from 

counsel’s belief concerning the adequacy of Dr. McKenna’s above-noted reports, the July 10, 

2015 request for reconsideration neither alleged nor demonstrated that OWCP erroneously 

applied or interpreted a specific point of law. Additionally, he did not advance any relevant legal 

arguments not previously considered by OWCP. The Board finds that appellant is not entitled to 

a review of the merits based on the first and second requirements under section 10.606(b)(3).9

Counsel also failed to submit pertinent and relevant new evidence with the July 10, 2015 

request for reconsideration. He resubmitted Dr. McKenna’s March 19 and May 29, 2014 reports. 

OWCP’s July 15, 2014 merit decision specifically referenced a “[March 19, 2014]” disability 

slip and a medical report dated “[May 29, 2014].” Providing additional evidence that either 

repeats or duplicates information already in the record does not constitute a basis for reopening a 

claim.10 Because counsel did not provide any pertinent and relevant new evidence appellant is 

not entitled to a review of the merits based on the third requirement under section 10.606(b)(3).11 

Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a). The 

Board shall affirm OWCP’s October 30, 2015 nonmerit decision. 

 5

 20 C.F.R. § 10.607. 

6 Id. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. For 

merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt 

date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ 

Compensation System (iFECS). Id. at Chapter 2.1602.4b. 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. § 10.608(a), (b). 

9 Id. § 10.606(b)(3)(i) and (ii). 

10 James W. Scott, 55 ECAB 606, 608 n.4 (2004). 

11 20 C.F.R. § 10.606(b)(3)(iii). 
6

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). 

ORDER 

IT IS HEREBY ORDERED THAT the October 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 4, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board