United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, OR, Employer 

__________________________________________ 

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Docket No. 16-0337 

Issued: May 2, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esquire, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 15, 2015 appellant, through counsel, filed a timely appeal from a 

November 5, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last OWCP merit decision of November 4, 

2014 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 over the merits of this claim. 

ISSUE 

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

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

FACTUAL HISTORY 

On March 27, 2013 appellant, then a 55-year-old retired expeditor, filed an occupational 

disease claim (Form CA-2) alleging that she developed a severe cervical condition as a result of 

 1

 5 U.S.C. § 8101 et seq. 
2

her federal duties. She indicated that she sustained two herniated discs, one bulging disc, and 

had a compressed nerve in her neck with resulting severe cervical spinal stenosis. She first 

became aware of her condition its relation to her federal employment on March 31, 2010. She 

retired from the employing establishment on January 31, 2013. 

 By letter dated December 17, 2013, OWCP advised appellant that this claim was only for 

additional work exposure since April 23, 2010. It noted that appellant had previously filed an 

occupational disease claim on April 23, 2010 for the same claimed condition with the same date 

of injury, which was assigned claim number xxxxxx692.2

 OWCP informed appellant of the 

deficiencies in her claim and afforded her 30 days in which to submit additional factual and 

medical evidence, including a statement of injury detailing her work exposure and factors of 

employment since April 23, 2010, medical evidence containing a work-related diagnosis, and a 

medical report from a physician discussing how the diagnosed condition was materially caused 

or aggravated by her work exposure since April 23, 2010. Appellant submitted additional factual 

and medical evidence. 

By decision dated February 10, 2014, OWCP denied the claim, finding that the factual 

evidence was insufficient to establish a compensable work exposure from April 23, 2010 to 

January 31, 2013. OWCP explained that appellant did not demonstrate that she was required to 

work beyond her restrictions as the employing establishment provided accommodating work and 

there was no evidence of a worsening of the condition due to the employment. 

On February 18, 2014 counsel requested a telephonic hearing from OWCP’s Branch of 

Hearings and Review, which was held on August 18, 2014. Appellant testified at the hearing 

and provided a September 10, 2014 report from Dr. Paul M. Puziss, a Board-certified orthopedic 

surgeon. 

By decision dated November 4, 2014, an OWCP hearing representative affirmed 

OWCP’s February 10, 2014 decision. The hearing representative found that, while appellant 

presented sufficient evidence to establish a factual basis for her claim, none of the examining 

physicians offered a rationalized medical opinion addressing the worsening of the condition due 

to the accepted employment factors from April 2010 to January 2013. 

In a letter dated and received on October 14, 2015, counsel requested reconsideration. 

Counsel submitted a September 10, 2014 report from Dr. Puziss, which he contended was not 

previously considered. 

By decision dated November 5, 2015, OWCP denied reconsideration without reviewing 

the merits of the case. 

 2

 OWCP indicated that the claim was ultimately denied. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

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.4 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.5

 However, a right to reconsideration 

within one year accompanies any subsequent merit decision on the issues. This includes any 

hearing or review of the written record decision, any denial of modification following 

reconsideration, any merit decision by the Board, and any merit decision following action by the 

Board.6

 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.7

 

ANALYSIS 

On October 14, 2015 OWCP timely received appellant’s request for reconsideration of its 

November 4, 2014 decision. The question for determination is whether her request met at least 

one of the three criteria for obtaining a merit review of her case. 

The Board finds that appellant did not establish that OWCP erroneously applied or 

interpreted a specific point of law, she did not advance a relevant legal argument not previously 

considered by OWCP, and she did not submit relevant and pertinent new evidence not previously 

considered by OWCP. 

Although counsel argued that Dr. Puziss’ September 10, 2014 report was not previously 

considered, the record reflects that it was of record and considered in the hearing representative’s 

November 4, 2014 decision. Counsel has offered no explanation as to how OWCP committed an 

error and failed to specify any law which OWCP allegedly erroneously applied or interpreted. 

Evidence or arguments which are duplicative, cumulative, or repetitive in nature are insufficient 

to warrant reopening a claim for merit review.8

 Thus counsel’s argument is insufficient to 

warrant consideration on the merits. 

 3

 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 USC § 8128(a). 

4

 20 CFR § 10.606(b)(3). 

5 Id. at § 10.607(a). 

6 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 

7 Id. at § 10.608(b). 

8 Denis M. Dupor, 51 ECAB 482 (2000). 
4

The underlying issue was the medical question of whether appellant has established a 

worsening of her condition due to the accepted employment factors from April 2010 to 

January 2013. Appellant offered no relevant and pertinent new evidence on reconsideration. 

Appellant has not met any of the criteria warranting reopening her claim for further merit 

review. Therefore, pursuant to 20 CFR § 10.608, OWCP properly denied merit review. 

On appeal counsel argues that OWCP’s decision is contrary to fact and law without 

pointing to specific errors. Additionally, the Board does not have jurisdiction over the merits of 

the claim on the present appeal. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 5 

U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the November 5, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board