United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chesapeake, VA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1595 

Issued: September 25, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 1, 2016 appellant filed a timely appeal from a February 8, 2016 nonmerit 

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

elapsed from the last merit decision, dated June 18, 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 claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s September 15, 2015 request 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

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances outlined in 

the prior Board decision are incorporated herein by reference. The relevant facts are set forth 

below. 

Appellant, a 65-year-old former city carrier, has an accepted occupational disease claim 

(Form CA-2) for lumbar sprain and lumbar degenerative disc disease, which arose on or about 

October 9, 2001 (OWCP File No. xxxxxx923). He also has an accepted traumatic injury claim 

(Form CA-1) for lumbar sprain, which arose on June 18, 2002 (OWCP File No. xxxxxx881). 

OWCP administratively combined the two case records and designated File No. xxxxxx923 as 

the master file. It determined on August 18, 2008 that appellant received an overpayment of 

compensation in the amount of $3,389.69 for the period June 19 through August 13, 2002. 

OWCP also found appellant at fault in creating the overpayment. By decision dated July 27, 

2009, the Board affirmed the August 18, 2008 OWCP decision.3

Since the case was last before the Board, appellant underwent lumbar surgery in 

May 2010. He received wage-loss compensation following surgery, and then returned to work in 

a limited-duty capacity on September 15, 2010. On March 23, 2012 OWCP granted appellant a 

schedule award for three percent permanent impairment of the left lower extremity.4

Appellant’s physician, Dr. J. Abbott Byrd III, an orthopedic surgeon, last released him to 

work in a modified-duty capacity effective July 31, 2012. He advised that appellant should 

continue with present light-duty restrictions. 

On November 13, 2013 appellant filed a recurrence claim (Form CA-2a) alleging wageloss compensation for temporary total disability commencing October 7, 2013. At the time of 

his work stoppage he was employed as a customer service supervisor. Appellant indicated that 

his back condition continued to bother him and the work duties he had been performing caused 

his condition to deteriorate to the point where he could no longer work. 

Appellant submitted several reports from Dr. Byrd in support of his claim. In an 

October 7, 2013 report, Dr. Byrd diagnosed lumbago and lumbar stenosis, and advised appellant 

to remain off work pending follow-up for his mechanical back pain. 

In a December 17, 2013 letter, OWCP advised appellant that additional factual and 

medical evidence was needed to support his claim for a recurrence commencing October 7, 2013. 

It subsequently received additional evidence from appellant, which included a December 3, 2013 

lumbar diagnostic study and a December 6, 2013 report from Dr. Byrd, who advised that 

appellant’s pain was probably due to the narrowing and degeneration at L4-5 with mild stenosis. 

Dr. Byrd also indicated that appellant should stay out of work. 

 2

 Docket No. 09-0219 (issued July 27, 2009). 

3 Id. 

4

 By decision dated August 20, 2012, a representative of the Branch of Hearings and Review affirmed the 

schedule award decision. 
3

By decision dated February 6, 2014, OWCP denied appellant’s claim for recurrence of 

disability. It found that he had not established that he was disabled from work beginning 

October 7, 2013 due to a material change/worsening of his accepted work-related condition. The 

evidence also did not show that appellant’s light-duty job changed such that the job duties were 

inconsistent with prescribed restrictions. 

On February 27, 2014 appellant requested a review of the written record by OWCP’s 

Branch of Hearings and Review. With his request, he submitted a personal written statement and 

copies of medical reports previously of record. 

By decision dated July 14, 2014, OWCP’s hearing representative affirmed OWCP’s 

February 6, 2014 decision. He found that the evidence of record did not support a worsening of 

an accepted condition, nor did it show that appellant’s light-duty job changed such that job duties 

were inconsistent with prescribed restrictions. 

Appellant requested reconsideration in an undated letter received on December 15, 2014. 

Additional medical evidence from Dr. Byrd was submitted. By decision dated February 19, 

2015, OWCP denied modification of the July 14, 2014 OWCP decision. It found the evidence 

submitted was of insufficient probative value to alter the July 14, 2014 decision. 

On April 3, 2015 OWCP received appellant’s March 30, 2015 request for 

reconsideration. Appellant submitted a statement along with medical evidence. 

By decision dated June 18, 2015, OWCP denied modification of its prior decision. It 

found the evidence presented was of insufficient probative value to establish a recurrence of total 

disability as of October 7, 2013 due to a change in the nature or extent of light-duty 

requirements. 

On September 15, 2015 OWCP received appellant’s September 4, 2015 request for 

reconsideration. Evidence received in support of the reconsideration request included copies of 

pay stubs, an undated statement from appellant, Dr. Byrd’s biography, and a November 15, 2010 

duty status report (Form CA-17) from Dr. Byrd. 

By decision dated February 9, 2016, OWCP denied appellant’s request for 

reconsideration without conducting a merit review. It found that the evidence presented was 

either irrelevant or immaterial to the issue at hand and that appellant’s request did not raise 

substantive legal questions. 

LEGAL PRECEDENT 

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

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 

 5

 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 U.S.C. § 8128(a). 
4

pertinent new evidence not previously considered by OWCP.6

 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.7

 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.8 

ANALYSIS 

The Board finds that OWCP properly denied appellant’s timely request for 

reconsideration without further merit review. The underlying issue in this case is whether 

appellant has submitted sufficient evidence relevant to the issue of whether he established a 

recurrence of disability beginning October 7, 2013 and that he continued to be disabled due to a 

material change or worsening of his accepted work conditions or extent of light-duty 

requirements. This is a medical issue. Appellant failed to submit any relevant and pertinent new 

evidence in support of his reconsideration request. The pay stubs and Dr. Byrd’s biography are 

either irrelevant or immaterial to the issue. Dr. Byrd’s November 15, 2010 CA-7 form, while 

apparently new to the record, is not relevant to the issue at hand as it is prior to the alleged 

recurrence date of October 7, 2013 and, therefore, is irrelevant. As the Board has held, the 

submission of evidence or argument which does not address the particular issue involved does 

not constitute a basis for reopening the case.9

Furthermore, in his undated statement, appellant neither showed that OWCP erroneously 

applied or interpreted a specific point of law, nor advanced a relevant legal argument not 

previously considered by OWCP. Because he failed to meet at least one of the standards 

enumerated under section 8128(a) of FECA, he was not entitled to further merit review of his 

claim.10

On appeal appellant provided a procedural history of his case and essentially argued the 

merits of his case. As previously noted, the Board does not have jurisdiction over the merits of 

this case. 

 6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.607(a). 

8 Id. at § 10.608(b). 

9 See A.M., Docket No. 16-1875 (issued August 23, 2017); Edward Matthew Diekemper, 31 ECAB 224-

25 (1979). 

10 See A.M., Docket No. 16-0499 (issued June 28, 2016); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006); A.K., Docket No. 09-2032 (issued August 3, 2010) (when an application for reconsideration does not 

meet at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application 

for reconsideration without reopening the case for a review on the merits). 
5

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). 

ORDER 

IT IS HEREBY ORDERED THAT the February 8, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 25, 2017 

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