United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Inglewood, CA, Employer 

__________________________________________ 

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Docket No. 16-0949 

Issued: October 17, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 4, 2016 appellant filed a timely appeal from a November 19, 2015 nonmerit 

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

elapsed from the last merit decision, dated July 21, 2015, 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 the claim. 

ISSUE 

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

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

FACTUAL HISTORY 

OWCP accepted that on December 8, 2011 appellant, then a 52-year-old city carrier, 

sustained left knee, ankle, and leg sprains, and a temporary aggravation of a lumbar strain, when 

 1

 5 U.S.C. § 8101 et seq. 
2

he stepped on plant matter that had fallen from a tree. Appellant accepted a modified letter 

carrier position on December 14, 2011. He was evaluated through May 2012 by Dr. Anton 

Volpicelli, an attending osteopathic physician, for continuing left knee and ankle pain. 

In a May 23, 2012 report, Dr. Frank Giacobetti, an attending Board-certified orthopedic 

surgeon, provided a history of injury and treatment. He noted that appellant underwent a right 

knee arthroscopy in 1989, left knee arthroscopy in 1991, and gastric bypass in 1997. On 

examination of the left knee Dr. Giacobetti found limited motion, medial joint line tenderness, 

and a positive medial McMurray’s sign. He diagnosed a left knee strain, rule out medial 

meniscus pathology. Dr. Giacobetti opined that the diagnosed conditions were caused by the 

December 8, 2011 injury.2 

Dr. Giacobetti restricted appellant to light-duty work due to left knee and ankle 

symptoms through October 17, 2012. On November 16, 2012 he performed arthroscopic partial 

medical and lateral meniscectomies, synovectomy of the medial and lateral compartments, and 

an arthroscopic chondroplasty of the medial femoral condyle. OWCP approved the procedure. 

Appellant stopped work as of November 16, 2012, and did not return. He received wage-loss 

compensation. OWCP placed appellant’s case on the periodic rolls effective 

December 16, 2012. 

Dr. Giacobetti provided reports dated from December 16, 2012 through June 11, 2014 

holding appellant off work due to chronic, unchanged lumbosacral symptoms, treated with 

periodic injections. 

On March 27, 2013 OWCP obtained a second opinion from Dr. Ghol Bahman Ha’Eri, a 

Board-certified orthopedic surgeon, who found appellant capable of limited-duty work. 

Dr. Ha’Eri opined that the December 8, 2011 injuries had ceased without residuals. 

OWCP found a conflict of medical opinion between Dr. Giacobetti, for appellant, and 

Dr. Ha’Eri, for the government, regarding the nature and extent of appellant’s condition. On 

June 26, 2014 it obtained an impartial medical opinion from Dr. Mark Ganjianpour, a Boardcertified orthopedic surgeon. Based on a review of the medical record, statement of accepted 

facts, and a clinical examination, Dr. Ganjianpour opined that the accepted conditions had ceased 

without residuals. He found appellant able to perform full-time, modified-duty work with 

restrictions due to left meniscal degeneration and postoperative status.3

 

In reports from August 20 to December 10, 2014, Dr. Giacobetti released appellant to 

sedentary work. 

 2

 Appellant participated in physical therapy from December 18, 2011 to August 20, 2014. A February 12, 2013 

lumbar magnetic resonance imaging (MRI) scan showed degenerative disc disease with posterior disc bulges from 

T10 to L5. A June 9, 2012 MRI scan study of the left knee showed possible Osgood-Schlatter disease, a macerated 

medial meniscus, and osteochondral changes with loss of the articular cartilage. 

3

 Dr. Ganjianpour ordered a July 3, 2014 lower extremity electromyography and nerve conduction velocity study, 

which demonstrated chronic left S1 radiculopathy. 
3

By notice dated March 4, 2015, OWCP advised appellant of its proposal to terminate his 

wage-loss compensation and medical benefits, based on Dr. Ganjianpour’s opinion as the weight 

of the medical evidence. It afforded appellant 30 days to submit evidence or argument if he 

disagreed with the proposal. 

In response, appellant submitted his March 25, 2015 letter, contending that OWCP 

should not terminate his compensation benefits as he had complied with all applicable rules and 

regulations regarding his claim. He asserted that he provided the employing establishment 

Dr. Ganjianpour’s and Dr. Giacobetti’s work restrictions, noting that they pertained to his left 

knee. Appellant also provided a March 20, 2014 letter from the employing establishment, 

acknowledging that he provided medical reports on October 3, 2014. He submitted additional 

medical evidence. 

On March 4, 2015 Dr. Giacobetti diagnosed lumbar disc disease and restricted appellant 

to sedentary duty. In an April 15, 2015 report, he diagnosed lumbar disc disease and status post 

left knee arthroscopy and partial medial meniscus resection. Dr. Giacobetti agreed with 

Dr. Ganjianpour’s assessment and work restrictions. 

By decision dated July 21, 2015, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date, based on Dr. Ganjianpour’s opinion as the weight of the 

medical evidence. It reviewed appellant’s March 25, 2015 letter. OWCP found that 

Dr. Giacobetti’s March 4 and April 15, 2015 reports, were insufficient to establish continuing 

disability from work, as he agreed with Dr. Ganjianpour that appellant could perform full-time 

modified duty.4

 

In an August 18, 2015 letter and August 19, 2015 appeal form, received August 25, 2015 

appellant requested reconsideration through his union representative. The representative 

contended that the accepted left knee conditions had not ceased without residuals as 

Dr. Ganjianpour provided permanent restrictions due to appellant’s left medial meniscus. 

By decision dated November 19, 2015, OWCP denied reconsideration, finding that 

appellant’s letter and accompanying documents did not constitute relevant or pertinent new 

evidence. It found that the representative’s August 18, 2015 letter was repetitive of appellant’s 

prior arguments. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that 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.6

 Section 10.608(b) 

 4

 On July 27, 2015 appellant claimed a schedule award. 

5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.606(b)(3). 
4

provides that, when an application for review of the merits of a claim 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.7

 

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.8 Appellant need only 

submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an 

OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.10 

ANALYSIS 

OWCP accepted that appellant sustained left knee, ankle, and leg sprains, and a 

temporary aggravation of a lumbar strain. Appellant underwent arthroscopic medial and lateral 

meniscectomies on November 16, 2012, approved by OWCP. He did not return to work 

following surgery. Appellant received wage-loss compensation on the periodic rolls beginning 

December 16, 2012. Appellant’s attending orthopedic surgeon, Dr. Giacobetti, held appellant off 

work through June 11, 2014. Dr. Ha’Eri, a Board-certified orthopedic surgeon and second 

opinion physician, opined on March 27, 2013 that appellant could perform full-time modified 

duty. 

OWCP found a conflict of medical opinion between Dr. Giacobetti and Dr. Ha’Eri, and 

selected Dr. Ganjianpour, a Board-certified orthopedic surgeon, as impartial medical examiner. 

Dr. Ganjianpour opined on June 26, 2014 that the accepted conditions had resolved without 

residuals, and that appellant could perform full-time modified work. Dr. Giacobetti agreed with 

Dr. Ganjianpour’s assessment. By notice dated March 4, 2015, OWCP advised that it proposed 

to terminate appellant’s wage-loss compensation and medical benefits as the accepted conditions 

ceased without residuals. Appellant responded by March 25, 2015 letter, contending that he 

followed all instructions from OWCP regarding his claim. He submitted an employing 

establishment letter confirming that he submitted medical evidence and work restrictions. 

OWCP terminated appellant’s medical benefits and wage-loss compensation, effective 

July 21, 2015. 

Appellant requested reconsideration through his union representative on August 18, 2015. 

The representative asserted that OWCP could not find that the accepted conditions had ceased as 

Dr. Ganjianpour provided work restrictions regarding appellant’s left knee. OWCP issued a 

November 19, 2015 decision denying reconsideration, finding that the August 18, 2015 argument 

was repetitious of appellant’s prior assertions. 

 7 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

8 Helen E. Tschantz, 39 ECAB 1382 (1988). 

9 See supra note 6. See also Mark H. Dever, 53 ECAB 710 (2002). 

10 Annette Louise, 54 ECAB 783 (2003). 
5

The Board finds that OWCP appropriately denied reconsideration as appellant’s 

argument was duplicative of his March 25, 2015 contentions previously of record. Evidence 

which is duplicative, cumulative, or repetitive in nature is insufficient to warrant reopening a 

claim for merit review.11 Therefore, the August 18, 2015 letter is insufficient to warrant 

reconsideration of the merits. The August 19, 2015 appeal form does not contain additional 

evidence or argument. 

On appeal, appellant asserts that OWCP did not fully consider the evidence of record 

prior to terminating his compensation benefits. In particular, he alleges that OWCP did not read 

documents he mailed on March 25, 2015 in response to the notice of proposed termination. The 

Board notes, however, that OWCP’s July 21, 2015 decision contains a detailed analysis of the 

evidence appellant submitted in response to the notice of proposed termination.12 Furthermore, 

as noted, the Board does not have jurisdiction to address the merits of the claim. 

A claimant may be entitled to a merit review by submitting new and relevant evidence or 

argument. Appellant did not do so in this case. 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 further merit review 

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

 11 Denis M. Dupor, 51 ECAB 482 (2000). 

12 Appellant also submitted new evidence on appeal. The Board may not consider evidence for the first time on 

appeal that was not before OWCP at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). 
6

ORDER 

IT IS HEREBY ORDERED THAT the November 19, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 17, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board