United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Germantown, WI, Employer

__________________________________________

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Docket No. 18-0400

Issued: August 24, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 20, 2017 appellant filed a timely appeal from an October 6, 2017 nonmerit 

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

elapsed since the last merit decision dated May 24, 2017, 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 case.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).

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 6, 2017 nonmerit decision, OWCP received additional evidence. 

Appellant also submitted additional evidence with her appeal to the Board. However, the Board’s jurisdiction is 

limited to the evidence that was in the record at the time OWCP issued its final decision. Thus, the Board is precluded 

from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On November 8, 2016 appellant, then a 63-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right shoulder on that date while working with 

letters and flats. She stopped work on November 8, 2016. 

In support of her claim appellant submitted magnetic resonance imaging (MRI) scans dated 

November 14 and 21, 2016. She also submitted disability notes with work restrictions dated 

November 8 and 11, 2016 from Dr. Andrew M. Knoernschild, a treating Board-certified family 

medicine physician, which related that she could return to work on November 11, 2016 with 

restrictions regarding the use of her right arm. Progress notes dated November 8, 11, and 14, 2016 

from Dr. Knoernschild, reported a history of injury, provided examination findings, and diagnosed

right shoulder strain. 

In a November 14, 2016 work restriction form, Dr. Timothy J. Morton, a treating physician 

specializing in orthopedic surgery, diagnosed right shoulder strain, which he concluded was work 

related, and noted an injury date of November 8, 2016. He released appellant to light-duty work. 

By development letter dated December 1, 2016, OWCP advised appellant that further 

medical evidence was necessary to establish her claim. It informed her that medical evidence was 

also necessary to establish any period of disability. OWCP afforded appellant 30 days to submit 

the necessary evidence. 

On December 6, 2016 appellant was seen by Dr. Morton for right shoulder complaints. 

Dr. Morton reported that her examination was unchanged and she was to continue with light-duty 

work. 

Appellant submitted claims for compensation (Form CA-7) and Time Analysis Forms 

(Form CA-7a) claiming intermittent wage loss for 74 hours3for the period December 24, 2016 to 

January 6, 2017 and 56 hours of LWOP for the period January 7 to 20, 2017. 

By decision dated January 13, 2017, OWCP denied appellant’s claim, finding that the

medical evidence of record was insufficient to establish that she sustained a right shoulder 

condition causally related to the accepted November 8, 2016 employment incident. 

In progress notes dated November 28 and December 19, 2016, and February 7 and 9, 2017,

Dr. Rory R. Wright, an examining Board-certified orthopedic surgeon, discussed appellant’s 

medical treatment, reviewed diagnostic tests, and diagnosed right shoulder degenerative joint 

disease, right shoulder rotator cuff disease, and right shoulder biceps tendon tear. On February 9, 

2017 he attributed the acceleration in her right shoulder osteoarthritis to her prior shoulder surgery, 

cumulative work exposure, and recent shoulder injuries. 

 

3

In the employing establishment statement/certification, the employing establishment noted 80 hours of leave 

without pay (LWOP) was verified, but noted 74 hours of LWOP and 6 hours worked in the designated columns on 

the time analysis form (Form CA-7a). 
3

A November 14, 2016 MRI scan of the right shoulder revealed no acute dislocation or 

fracture, acromioclavicular (AC) joint disease, and glenohumeral osteoarthritis with large 

osteophyte at humeral head inferior aspect. 

In a November 17, 2016 report, Dr. Wright, an examining Board-certified orthopedic 

surgeon, noted that appellant was seen on November 14, 2016 for a right shoulder injury sustained 

at work on November 8, 2016. He noted her medical history and provided examination findings. 

Dr. Wright diagnosed acute right shoulder injury due to a workplace injury and suspected rotator 

cuff and bicipital injury. He indicated that appellant was capable of light-duty work. 

A November 21, 2016 MRI scan revealed an abnormal right rotator cuff, mild rotator cuff 

muscular atrophy, moderate AC joint degenerative arthritis, and severe full-thickness 

chondromalacia of the humeral head and portions of the glenoid. 

Dr. Morton, in November 28, 2016 progress notes, reported that appellant continued to 

have right shoulder problems and had been evaluated by Dr. Wright. He recommended total right 

shoulder replacement. Dr. Morton indicated that appellant would continue to work with 

restrictions. 

In a December 19, 2016 return to work authorization, Dr. Wright released appellant to 

return to work on December 20, 2016 with restrictions. 

In a February 24, 2017 letter, Dr. Wright explained why the requested total right shoulder 

arthroplasty surgery was due to appellant’s federal employment duties and should be authorized 

by OWCP. 

On April 21, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. David S. Haskell, a Board-certified orthopedic surgeon. In a May 10, 20174report

Dr. Haskell, based upon a physical examination and review of the statement of accepted facts and 

medical records, opined that the November 8, 2016 work incident caused a temporary aggravation 

of her preexisting right shoulder degenerative glenohumeral joint arthritis. He also concluded that 

there was no disability in connection with this injury. In support of this conclusion, Dr. Haskell

explained that appellant’s November 8, 2016 injury caused no permanent change or altered the 

course of the underlying condition. 

By decision dated May 24, 2017, OWCP granted modification of the denial of the claim

based on Dr. Haskell’s report. It found that the medical evidence of record was sufficient to 

establish a temporary aggravation of preexisting right glenohumeral joint arthritis by the accepted 

November 8, 2016 work injury. However, OWCP further found that the medical evidence of 

record was insufficient to establish a period of disability.

 

4 The date on the report is May 8, 2017, which appears to be a typographical error as appellant was examined by

Dr. Haskell on May 10, 2017. 
4

By separate decision dated May 24, 2017, OWCP accepted appellant’s claim for temporary 

aggravation of preexisting right shoulder glenohumeral joint arthritis, which it found had resolved 

by May 10, 2017. 

Subsequent to the acceptance of her claim, OWCP received previously submitted MRI 

scans dated November 14 and 21, 2016 and reports from Drs. Haskell, Morton, Knoernschild, and 

Wright. 

On July 11, 2017 appellant requested reconsideration. 

On August 1, 2017 OWCP received a June 8, 2017 work authorization from Dr. Wright 

releasing appellant to light-duty work pending surgery. The diagnosis was right shoulder pain, 

which he opined was work related. 

By decision dated October 6, 2017, OWCP denied appellant’s request for reconsideration.

It found that the evidence was insufficient to warrant merit review of the decision dated May 24, 

2017 as the evidence submitted with the request for reconsideration was irrelevant or duplicative 

and thus had no bearing on the issue of entitlement to intermittent wage-loss compensation. 

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.6

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.7 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.8 If the request is timely, but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.9

 

5 5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 

(issued February 23, 2010); W.C., 59 ECAB 372 (2008).

6 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

7

Id. at § 10.607(a).

8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
5

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

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

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, nor did she advance a relevant legal argument not previously considered by OWCP.10 As 

such, she was not entitled to a review of the merits of her claim based on the first and second 

above-noted requirements under section 10.606(b)(3).11

A claimant may also be entitled to a merit review by submitting relevant and pertinent new 

evidence. 

The underlying issue on reconsideration is medical in nature, whether appellant’s disability 

was causally related to the accepted November 8, 2016 employment injury. She submitted new 

evidence in the form of a June 8, 2017 work authorization from Dr. Wright diagnosing workrelated right shoulder pain and releasing appellant to light-duty work. This form report, however, 

did not discuss or offer any opinion regarding whether appellant’s intermittent disability for the 

period December 24, 2016 to January 20, 2017 was causally related to the accepted November 8, 

2016 employment injury. The Board has held that evidence which does not address the particular 

issue involved does not constitute a basis for reopening a case.12

Appellant also resubmitted medical evidence by Drs. Haskell, Morton, Knoernschild, and 

Wright and MRI scans dated November 14 and 21, 2016. The Board finds that the submission of 

these reports would not require OWCP to reopen her case for further review of the merits of the 

claim because the Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record does not constitute a basis for reopening 

a case.13

Appellant’s reconsideration request failed to show that OWCP erroneously applied or 

interpreted a point of law, nor did it advance a point of law not previously considered by OWCP. 

She also did not submit relevant and pertinent new evidence. Therefore, pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied appellant’s request for reconsideration of the merits of the claim.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim under 5 U.S.C. § 8128(a).

 

10 See J.F., Docket No. 16-1233 (issued November 23, 2016).

11 Supra note 6 at § 10.606(b)(3).

12 D’Wayne Avila, 57 ECAB 642 (2006).

13 Candace A. Karkoff, 56 ECAB 622 (2005). 
6

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated October 6, 2017 is affirmed.

Issued: August 24, 2018

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