United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Roswell, GA, Employer 

__________________________________________ 

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Docket No. 17-0469 

Issued: June 16, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 27, 2016 appellant filed a timely appeal from a March 4, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 Because more than 180 

days elapsed from the most recent merit decision, dated May 18, 2015, 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 to review the merits of this case.3

 1

 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 March 4, 2016, the date of OWCP’s last decision was 

August 31, 2016. Since using September 16, 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 August 27, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 

3

 With her request for an appeal, appellant submitted additional evidence. The Board’s jurisdiction is limited to 

reviewing the evidence that was before OWCP at the time of its final decision. Therefore, the Board may not 

consider this additional evidence on appeal. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

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

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

FACTUAL HISTORY 

On January 15, 2015 appellant, then a 50-year-old sales/service and distribution 

associate, filed a traumatic injury claim (Form CA-1), alleging that on January 13, 2015 she was 

forced to assist and train an employee on dispatch which involved repetitive pushing, pulling, 

and lifting causing an injury to her lower back, bilateral shoulder, left arm and bilateral knees. 

She asserted that she was forced to perform these duties against known medical restrictions of no 

pushing, pulling, and lifting over 20 pounds. Appellant did not stop work. 

In letters dated February 4 and 6, 2015, the employing establishment challenged 

appellant’s claim noting that she had a preexisting condition, but was now alleging that her 

injury was due to repetitive motion of her job duties. It further stated that the evidence was 

insufficient to establish that appellant experienced the incident or factors alleged to have caused 

the injury. A sales/service distribution associate job description was submitted. 

In an undated note, M.W., supervisor of customer service, noted that on January 13, 2015 

appellant informed her that she had a weight restriction and was assigned to dispatch. She 

advised appellant that she would have a coworker assist with the dispatch. S.R., a coworker, 

reported to assist appellant and was informed that appellant was unable to lift anything over her 

weight restriction. In a statement dated January 13, 2015, she noted assisting appellant with 

dispatch and was informed by management and appellant that she was not permitted to lift 

anything over 20 pounds. S.R. noted that after appellant’s instruction she performed the 

dispatch. In a statement dated January 13, 2015, J.T., a clerk, noted that on January 13, 2015 she 

witnessed M.W. inform appellant that she did not have to do any lifting, but rather show another 

employee how to sort and get items ready for dispatch. 

Appellant submitted an attending physician’s report (Form CA-20) from Dr. Trishanna 

Sookdeo, a Board-certified family practitioner, dated February 4, 2015, who noted that on 

January 13, 2015 appellant was instructed to assist with dispatch which required reaching, 

pushing, and pulling. Dr. Sookdeo diagnosed lumbar sprain and noted by checking a box 

marked “yes” that appellant’s condition was caused or aggravated by an employment activity. In 

a duty status report (Form CA-17) dated February 4, 2015, she diagnosed lumbar sprain and 

questionable cervical radiculopathy and noted that appellant could return to work full time with 

restrictions on February 9, 2015. 

By a February 9, 2015 letter, OWCP advised appellant of the type of evidence needed to 

establish her claim. It noted that the evidence submitted was insufficient to establish that she 

actually experienced the incident alleged to have caused the injury and requested appellant 

substantiate the factual elements of her claim and respond to an attached questionnaire. 

In reports dated January 16 and February 4, 2015, Dr. Sookdeo treated appellant for low 

back pain which began on January 13, 2015 after assisting with dispatch duties requiring 
3

reaching, pushing, pulling, repetitive squatting, kneeling, and twisting. Appellant noted 

undergoing left knee arthroscopy on December 31, 2013 and was on restricted duty and informed 

her supervisor of her restrictions. Dr. Sookdeo reported sorting, containing, labeling and 

arranging mail from the window and collection boxes and clearing the empty hampers from the 

floor. Appellant indicated that the next morning she had severe back pain and had not returned 

to work. Dr. Sookdeo diagnosed lumbar sprain and opined that based on appellant’s history, job 

and evaluation she sustained a traumatic injury as a result of prolonged and repetitive motion on 

January 13, 2015. 

In an undated statement, appellant indicated that on January 13, 2015 her supervisor, 

M.W., forced her to assist with dispatch duties which involved reaching, pushing, pulling heavy 

equipment, repetitive squatting and kneeling. She advised M.W. of her limitations, but her 

comments were disregarded. Appellant noted that the other employee was never trained to 

perform dispatch duties and she had to demonstrate and perform most of the duties. This 

included sorting, containing, labeling and arranging mail from the window service and collection 

boxes, processing mail, and clearing empty hampers. Appellant indicated that the next day she 

had severe low back, left arm and hand, bilateral shoulder and bilateral knee pain. 

In a February 10, 2015 work status report, Dr. Zouheir A. Shama, a Board-certified 

general surgeon, noted that appellant was unable to work until February 19, 2015 due to injuries 

on the job. On March 5, 2015 he treated appellant for low back pain. Appellant reported 

“bending down to make a copy of her papers, she was fixing the machine, which was not 

working well and she started her lower back pain aggravated with this bending” according to her 

history. Dr. Shama diagnosed lower back pain and sacroiliitis which was aggravated by bending 

over and fixing a copy machine. She indicated that appellant’s injury began on January 13, 2015 

while working as a sales and service associate with long hours standing, walking, twisting, 

turning, lifting and reaching overhead. 

In a March 19, 2015 decision, OWCP denied appellant’s claim because the evidence of 

record was insufficient to establish that the events occurred as alleged. 

On April 17, 2015 appellant requested reconsideration and reiterated the facts of her 

claim. She indicated that she did not have the statements of other employees or the challenge of 

her claim by the employing establishment. Appellant advised that she attempted to perform the 

job she was assigned and while demonstrating the duties of the dispatch she sustained an injury. 

She did not knowingly violate her restrictions. 

Appellant submitted a March 26, 2015 report from Dr. Shama who noted that appellant 

initially sustained an injury to her back on January 13, 2015 while training a coworker to 

perform dispatch duties which included processing outgoing mail, sorting containers, labeling, 

arranging mail from the window unit and collecting mail from inside and outside collection 

boxes. This required her to use her hands, arms, and shoulders to arrange equipment, handle 

mail and mail matter, to collect mail, to perform sorting, and labeling duties. Dr. Shama advised 

that, as part of the instruction, she demonstrated some of the duties as the individual working 

with her had not been trained to do the work. He noted at the time of this injury appellant was 

working light duty on a nonjob-related injury. Appellant reported that while training the 

employee to perform dispatch duties, she felt pain in her lower back, shoulders, knees, left arm, 
4

and hand. Dr. Shama opined that appellant sustained a traumatic injury when she performed the 

dispatch duties on January 13, 2015. She opined that the mechanism of injury was consistent 

with appellant’s report of injury and the objective examination findings. 

In a decision dated May 18, 2015, OWCP denied modification of the March 19, 2015 

decision. 

On February 11, 2016 appellant requested reconsideration. She submitted reports dated 

April 9 and May 14, 2015 from Dr. Shama who treated appellant in follow-up regarding back 

pain. Dr. Shama noted that appellant was injured on January 13, 2015 while assisting with 

dispatch. He opined that, based on appellant’s job responsibilities, medical history and physical 

examination, she sustained an occupational injury that directly related to work with the 

employing establishment. 

Appellant submitted an October 21, 2015 report from Dr. Jay B. Bender, a Boardcertified physiatrist, who noted that appellant presented with neck pain, left knee pain, and low 

back pain. Dr. Bender noted findings of limited range of motion of the left knee, cervical spine 

and lumbar spine, tenderness to palpation medially on the left knee, normal deep tendon reflexes, 

and intact motor and sensory examination. He diagnosed cervical, shoulder and lumbar pain. 

Dr. Bender returned appellant to work with restrictions and recommended physical therapy. On 

November 18, 2015 he saw appellant for a follow-up evaluation. Appellant reported 

improvement with physical therapy. Dr. Bender noted findings and diagnosed cervical 

radiculopathy, bilateral carpal tunnel syndrome, lumbar spine pain and bilateral knee pain. He 

continued appellant’s work status. In reports dated December 30, 2015 and February 10, 2016, 

Dr. Bender noted unchanged findings and diagnosed cervical herniated nucleus, left knee pain 

and lumbar pain (M51.16). He continued physical therapy and current work restrictions. 

Appellant submitted an x-ray of the lumbar spine dated May 21, 2015 which revealed 

mild L3-4 disc space narrowing. A magnetic resonance imaging (MRI) scan of the cervical 

spine dated June 22, 2015 revealed degenerative changes of the thoracic and cervical spine at 

C3-4, C4-5, C5-6, and thoracic scoliosis. An August 6, 2015 left knee MRI scan was normal 

while an August 13, 2015 lumbar spine MRI scan showed bulging at L3-4 and L4-5. An 

October 28, 2015 electromyogram (EMG) revealed evidence of entrapment of the left ulnar 

sensory nerve at Guyon’s canal and evidence of moderate bilateral median neuropathy at the 

wrist. Appellant also submitted physical therapy notes. 

In an March 4, 2016 decision, OWCP denied appellant’s November 17, 2015 request for 

reconsideration as the evidence submitted was insufficient to warrant further review of the merits 

of her claim. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4

 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 

 4

 5 U.S.C. § 8128(a). 
5

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 which: 

“(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.”5

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.6

ANALYSIS 

OWCP denied appellant’s traumatic injury claim because the factual evidence of record 

was insufficient to establish that the work events occurred as alleged on January 13, 2013. 

Thereafter, it denied her reconsideration request, without conducting 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 further 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. She submitted an appeal request form dated 

November 17, 2015. This does not show a legal error by OWCP or constitute a new and relevant 

legal argument. The underlying issue in this case is whether appellant submitted evidence 

sufficient to establish that on January 13, 2015, she trained an employee on dispatch which 

involved repetitive pushing, pulling, and lifting items that exceeded 20 pounds. This is a factual 

issue which must be addressed by relevant new factual evidence.7

With respect to the third requirement, submitting relevant and pertinent new evidence not 

previously considered by OWCP, appellant submitted reports dated April 9 and May 14, 2015 

from Dr. Shama who treated her in follow-up regarding back pain. However, these reports are 

similar to his reports dated March 5, 10, and 26, 2015 which were previously submitted and 

considered by OWCP in its earlier decisions dated March 19 and May 18, 2015 and found 

deficient. Evidence that repeats or duplicates evidence already in the case record has no 

 5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608(b). 

7 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
6

evidentiary value and does not constitute a basis for reopening a case.8

 Therefore, these reports 

are insufficient to require OWCP to reopen the claim for a merit review. 

Appellant also submitted new reports from Dr. Bender as well as diagnostic test reports 

and physical therapy records. This evidence is not relevant, however, as the underlying issue is 

whether appellant has factually established that she was in the performance of duty on 

January 13, 2015. While these documents have some connection to his claim, they are not 

relevant to the issue for which OWCP denied appellant’s claim, the failure to establish work 

incidents on January 13, 2015.9 The submission of evidence that does not address the particular 

issue involved does not constitute a basis for reopening a case.10 As such, these documents do 

not constitute a basis for reopening appellant’s claim. 

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

20 C.F.R. § 10.606(b)(3). Appellant 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 constitute relevant and pertinent new evidence not previously considered. Pursuant to 

20 C.F.R. § 10.608(b), OWCP properly denied merit review. 

On appeal, appellant asserts that on November 10, 2015 she drafted a letter corroborating 

the facts of her claim, she provided a letter from her physician, and addressed statements from 

coworkers submitted on behalf of the employing establishment. She indicated that this 

information was placed in the wrong claim file and was not considered by OWCP in its March 4, 

2016 decision. As explained, the Board does not have jurisdiction over the merits of the claim. 

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). 

 8 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984). 

9 See R.B., Docket No. 16-0345 (issued April 21, 2016). 

10 M.M., Docket No. 10-224 (issued October 6, 2010). 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 4, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 16, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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