United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

City of Industry, CA, Employer 

__________________________________________ 

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Docket No. 17-0132 

Issued: April 7, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 25, 2016 appellant filed a timely appeal from a May 25, 2016 nonmerit 

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

elapsed since the last merit decision dated December 28, 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 this case.2

 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for 

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

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that on appeal appellant submitted new evidence. The Board’s jurisdiction is limited to the 

review of evidence which was before OWP at the time it issued its final decision. Therefore, the Board is unable to 

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

FACTUAL HISTORY 

On December 20, 2014 appellant, then a 43-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that same date he sustained a knee and back injury. He 

reported that he was descending a ramp with a hamper and attempted to keep the hamper from 

tipping over. Appellant sought treatment on the date of injury. On the reverse side of the form 

the employing establishment controverted the claim. 

On December 20, 2014 Dr. Jack Feldsher, a Board-certified osteopathic physician with 

Irwindale Industrial Clinic, diagnosed thoracolumbar strain and left knee strain. Appellant was 

released to work immediately with no work restrictions. 

By letter dated December 30, 2014, OWCP informed appellant that the evidence of 

record was insufficient to support his claim. It informed him that the employing establishment 

had challenged the merits of the claim and that further factual information was necessary. 

OWCP provided appellant with a questionnaire, and requested additional factual and medical 

evidence. Appellant was afforded 30 days to submit the additional evidence. 

In support of his claim, appellant submitted medical reports and duty status reports (Form 

CA-17) dated December 20, 2014 through January 20, 2015. He did not submit answers to the 

OWCP questionnaire regarding the requested factual information. 

On January 27, 2015 a special agent with the employing establishment’s Office of 

Inspector General (OIG) submitted an investigation report for the period December 30, 2014 

through January 27, 2015 with supporting documentation. The investigation concluded that 

appellant did not report that he had an injury when it occurred, but waited approximately three 

hours to report the injury. When interviewed by OIG, appellant related that he did not think the 

injury he suffered was serious enough to file a Form CA-1. Appellant reported that on the day of 

injury, he was treated at a clinic and released to full duty yet did not return to work. The report 

noted that appellant refused to provide a sworn statement to OIG. Further investigation revealed 

a video recording from the employing establishment’s security camera on the date of appellant’s 

injury. It showed appellant talking with coworkers and T.G., supervisor of customer service. In 

the video, appellant was carrying a gallon of water and walking without assistance. Following 

his conversation with T.G., he was transported to the clinic. Numerous witness interviews were 

conducted. OIG reported that many of these witnesses indicated that appellant let the hamper go 

and it tipped over, but that they did not see him fall or injure himself. T.G. stated that she did not 

think appellant sustained an injury because he informed her he let the hamper go so that he 

would not get injured. 

By decision dated February 12, 2015, OWCP denied appellant’s claim finding that the 

evidence failed to establish that the incident occurred as alleged. It noted that appellant had 

failed to establish fact of injury because, although the hamper full of mail tipped over, there was 

no evidence that he was injured in the process. Witness statements contradicted his allegation. 

On March 9, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. 
3

At the October 14, 2015 hearing, appellant explained that he was pushing the hamper 

down the ramp when he hit a pothole on a ramp and the hamper turned over. He tried to hold the 

hamper back but it was too heavy so he let it go. Appellant noted that the hamper weighed about 

200 pounds. After the hamper tipped over, his coworkers helped him pick up the mail and 

position the hamper upright. Appellant reported that he went on to deliver his route but did not 

develop pain until later that day. He stated that he immediately reported the incident to his 

supervisor but did not tell her he was injured until later that day when he began to experience 

pain. Appellant sought medical treatment on the date of injury and was diagnosed with a back 

and knee sprain. Although he was released to return to work, appellant stated that he was not 

feeling well and went home. Appellant reported that his condition continued to worsen over the 

weekend and after seeking treatment with his primary physician on the following Monday, he 

was diagnosed with a torn meniscus and back sprain. He testified that he had no prior back or 

knee injuries. Appellant explained that, at the base of the ramp, his wheel got caught in the 

pothole, causing the hamper to tip over. He stated that he was still under medical care and was 

working four hours per day. The record was held open for 30 days. 

In support of his claim, appellant submitted medical reports and duty status reports (Form 

CA-17) dated December 20, 2014 through October 22, 2015 documenting his medical treatment. 

He also submitted a copy of his February 23, 2015 response to the 87 questions posed by OIG 

detailing the circumstances surrounding the employment incident. 

A union grievance was submitted noting that appellant was issued a 14-day suspension 

for unacceptable conduct/misrepresenting his medical condition. The union representative 

disputed the suspension and argued that appellant’s allegations correlated with the facts and 

circumstances surrounding the case. He identified violations made by the employing 

establishment and requested the suspension be rescinded and expunged due to lack of evidence 

and overwhelming contradictions. 

A March 20, 2015 shop steward statement was also submitted noting violations by the 

employing establishment and OIG in handling appellant’s claim. He too recommended the 

suspension be expunged due to lack of evidence and the overwhelming contradiction to 

management’s claims. 

In an April 2, 2015 witness statement, J.M., a fellow coworker, reported that he witnessed 

the employment incident when appellant was coming down the ramp area and struggled to 

maintain control of his gurney. He lost control of the hamper and it completely flipped over at 

the bottom of the ramp. J.M. reported that he and two other carriers helped appellant collect the 

mail off the floor. He noticed appellant grabbing his back and wincing in pain, stating that at no 

time did appellant attempt to help retrieve the scattered mail. 

In an April 2, 2015 witness statement, E.D., a fellow coworker, reported that he 

witnessed appellant trying to hold up his hamper while it was falling over. He went to help 

appellant pick up the mail. E.D. did not see him bend over to pick up any mail and noticed him 

grabbing his sides and hips. 

By letter dated November 24, 2015, the employing establishment noted review of the 

hearing transcript and argued that appellant’s testimony was contradictory to his responses 
4

following the injury. It continued to controvert the claim and noted that appellant was issued a 

disciplinary action for falsely reporting an injury based on the OIG investigation. 

By decision dated December 28, 2015, OWCP’s hearing representative affirmed the 

February 12, 2015 decision finding that the evidence failed to establish that the incident occurred 

as alleged. The hearing representative noted that, due to conflicting factual evidence and several 

discrepancies surrounding the alleged event, the evidence was insufficient to establish the factual 

portion of the claim. 

On February 1, 2016 appellant requested reconsideration of the December 28, 2015 

decision. He stated that he was resubmitting his physician’s initial orthopedic consultation and 

evaluation report. In support of his claim, appellant submitted numerous medical reports 

previously of record. 

By decision dated May 25, 2016, OWCP denied appellant’s request for reconsideration 

finding that he neither raised substantive legal questions nor included relevant and pertinent new 

evidence establishing fact of injury. 

LEGAL PRECEDENT 

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

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.3 Section 10.608(b) of OWCP regulations 

provides that when an application for reconsideration 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.4

ANALYSIS 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

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 his application for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law, and he did not advance a new and relevant legal argument not 

previously considered. He continued to allege that his injury was employment related, however, 

he presented no point or law or no new legal argument as to why the evidence of record 

established that the incident occurred as alleged. Consequently, appellant is not entitled to a 

 3 D.K., 59 ECAB 141 (2007). 

4 K.H., 59 ECAB 495 (2008). 
5

review of the merits of his claim based on the first and second above-noted requirements under 

section 10.606(b)(3).5

The Board further finds that appellant did not submit relevant or pertinent new evidence 

not previously considered by OWCP. The underlying issue on appeal involved fact of injury; 

whether the incident occurred at the time, place, and in the manner alleged within the 

performance of duty. Appellant’s reconsideration request does not provide greater detail 

pertaining to whether the incident occurred in the manner alleged. Rather, he resubmitted 

medical reports previously of record. The Board notes that this evidence was previously 

submitted and considered. Material which is duplicative of that already contained in the case 

record does not constitute a basis for reopening a case.6 

A claimant may obtain a merit review of an OWCP decision by submitting relevant and 

pertinent new evidence. In this case, appellant failed to submit any relevant and pertinent new 

evidence addressing that the December 20, 2014 employment incident occurred as alleged. 

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 

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

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

 5

 20 C.F.R. § 10.606(b)(3). 

6 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989). 
6

ORDER 

IT IS HEREBY ORDERED THAT the May 25, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 7, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board