United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Garden City, MI, Employer 

__________________________________________ 

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Docket No. 16-1798 

Issued: March 16, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 7, 2016 appellant filed a timely appeal from a May 11, 2016 nonmerit 

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

elapsed between the last merit decision dated May 13, 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 over the merits of this case. 

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 March 5, 2015 appellant, then a 32-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that he experienced the onset of severe right heel pain earlier that day 

 1

 5 U.S.C. § 8101 et seq. 
2

when climbing steps to deliver mail to a house. The employing establishment completed an 

accident report on March 5, 2015, corroborating appellant’s account of events. Appellant 

stopped work on the date of injury.2

In support of his claim, appellant submitted a March 5, 2015 attending physician’s report 

(Form CA-20) from Dr. Kenneth Wilhelm, an attending Board-certified surgeon, which related 

appellant’s account of the onset of severe right heel and ankle pain while walking up steps that 

day. Dr. Wilhelm diagnosed right Achilles tendinitis. He checked a box marked “yes” on the 

form report that appellant’s condition was caused or aggravated by work activity. Dr. Wilhelm 

prescribed a nonweight-bearing boot. 

Dr. Anna Jonascu-Devine, an attending physician, Board-certified in emergency 

medicine, provided reports from March 10 to 24, 2015, diagnosing right Achilles tendinitis and 

noting work restrictions. Dr. Linda V. Thomas, an attending osteopathic physician, specializing 

in emergency medicine, provided work restrictions from March 13 to 24, 2015. Appellant also 

submitted physical therapy notes dated from March 10 to 24, 2015. 

In an April 10, 2015 letter, OWCP advised appellant of the additional evidence needed to 

establish his claim, including a report from his attending physician diagnosing an injury related 

to the March 5, 2015 incident, and explaining how climbing stairs would cause that injury. 

Appellant was afforded 30 days to submit such evidence. 

In response, appellant submitted an April 1, 2015 magnetic resonance imaging (MRI) 

scan of the right ankle, demonstrating mild Achilles tendinitis. 

By decision dated May 13, 2015, OWCP accepted that the March 5, 2015 incident 

occurred at the time, place, and in the manner alleged, but continued to deny the claim, finding 

that the medical evidence of record did not establish causal relationship. 

In a letter dated and postmarked June 12, 2015, appellant requested a review of the 

written record by a representative of OWCP’s Branch of Hearings and Review. He submitted a 

June 15, 2015 report from Dr. Wilhelm, noting that on March 5, 2015 appellant reported severe 

posterior ankle pain while climbing stairs delivering mail, and that he was unable to bear weight 

on his right foot. 

By decision dated July 14, 2015, OWCP’s Branch of Hearings and Review denied 

appellant’s request for a review of the written record, finding that it was untimely filed. It 

performed a brief review of the evidence and exercised its discretion, finding that appellant’s 

request for a review of the written record could be addressed equally well by submitting new, 

relevant evidence accompanying a valid request for reconsideration. 

On February 11, 2016 appellant requested reconsideration. He did not submit additional 

evidence or argument. 

 2

 In a March 18, 2015 form, the employing establishment noted that there was no work available within 

appellant’s medical restrictions. It is not clear from the record if and when appellant returned to work. 
3

By nonmerit decision dated May 11, 2016, OWCP denied reconsideration, finding that 

appellant did not raise substantive legal questions or include new, relevant evidence. 

LEGAL PRECEDENT 

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

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.4

 Section 10.608(b) 

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.5

 

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.6

 Appellant need only 

submit relevant, pertinent evidence not previously considered by OWCP.7 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.8 

ANALYSIS 

Appellant alleged that he sustained a left heel or ankle injury on March 5, 2015 while 

climbing steps on his delivery route. OWCP accepted that this incident took place at the time, 

place, and in the manner alleged, but denied the claim on May 13, 2015 as the medical evidence 

failed to establish a causal relationship between climbing steps and the alleged injury. Appellant 

requested a review of the written record which was denied by decision dated July 14, 2015. In a 

February 11, 2016 letter, he requested reconsideration. OWCP denied reconsideration by 

decision dated May 11, 2016, finding appellant’s letter was insufficient to warrant a merit 

review. 

The relevant issue before OWCP at the time it issued the May 13, 2015 merit decision 

was whether appellant had submitted sufficient medical evidence to establish a causal 

relationship between climbing steps on March 5, 2015 and the claimed left heel or ankle injury. 

To be relevant, any medical evidence submitted after the May 13, 2015 decision must be 

pertinent and new and address causal relationship. On June 22, 2015 appellant submitted a 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

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

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

7 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

8 Annette Louise, 54 ECAB 783 (2003). 
4

June 15, 2015 report from Dr. Wilhelm, an attending Board-certified surgeon, recalling that 

appellant presented on March 5, 2015 complaining of the onset of severe posterior ankle pain 

that day while climbing stairs delivering mail. This report, while new to the record, is not 

relevant as it addresses causal relationship in a similar manner as Dr. Wilhelm’s March 5, 2015 

report. Dr. Wilhelm did not offer any new reasoning for his opinion on causal relationship. The 

Board has held that the submission of evidence which repeats or duplicates evidence already in 

the case record does not constitute a basis for reopening a case.9

 The Board finds that appellant’s 

request for reconsideration is insufficient to warrant a merit review as appellant did not show that 

OWCP erroneously applied or interpreted a point of law, advance any legal arguments not 

previously considered, or provide any pertinent new and relevant evidence with the request. 

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 reconsideration of 

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

ORDER 

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

Compensation Programs dated May 11, 2016 is affirmed. 

Issued: March 16, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 L.T., Docket No. 09-1798 (issued August 5, 2010).