United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.E., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Santa Clarita, CA, 

Employer 

__________________________________________ 

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Docket No. 17-0503 

Issued: July 21, 2017 

Appearances: Case Submitted on the Record

Daniel Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 4, 2017 appellant, through counsel, filed a timely appeal from August 12 and 

November 18, 2016 nonmerit decisions of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last OWCP merit decision dated June 3, 2015 

to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s requests for 

reconsideration were insufficient to warrant merit review of the claim pursuant to 5 U.S.C. 

§ 8128(a). 

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts of the case as presented in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On August 18, 2010 appellant, then a 40-year-old mail handler, filed a claim for 

occupational disease (Form CA-2) alleging neck, arm, and knee injuries as a result of his federal 

employment duties of loading and unloading trucks. He stopped work as of June 17, 2010. 

Appellant underwent a left elbow ulnar nerve release on June 25, 2010. 

OWCP accepted the claim on October 7, 2010 for lesion of the left ulnar nerve. In 

addition, it expanded the accepted conditions to include neck sprain, bilateral knee derangement, 

displacement of cervical intervertebral disc without myelopathy, and brachial neuritis or 

radiculitis. OWCP initially paid wage-loss and medical compensation benefits on the 

supplemental rolls and later appellant was placed on the periodic rolls as of December 19, 2010. 

On February 13, 2013 the employing establishment offered appellant a full-time position 

as a customer care agent. The physical requirements of the position were reported as sitting up 

to eight hours with some standing, simple grasping up to eight hours intermittently, 

pushing/pulling of a computer mouse up to eight hours, and fine manipulation using a keyboard 

up to eight hours. 

OWCP prepared a statement of accepted facts (SOAF) dated April 4, 2013 and referred 

appellant, along with a description of the customer care agent position, to Dr. G.B. Ha’Eri, a 

Board-certified orthopedic surgeon, for a second opinion examination and a determination of 

appellant’s work capacity. In a report dated May 1, 2013, Dr. Ha’Eri provided a history and 

results on examination. He opined that appellant was not capable of performing the customer 

care agent position as it required that he repeatedly use his hands eight hours per day with no 

breaks. 

The record indicates that on May 28, 2013 appellant underwent C4-6 anterior 

microdiscectomy and interbody fusion surgery. In a toxicology report dated August 13, 2013, he 

tested positive for one prescription drug, Tapentadol, and for THC-COOH. The report indicated 

that the referring physician was Dr. Hrair Darakjian, a Board-certified orthopedic surgeon. 

On December 24, 2013 OWCP prepared a new SOAF and again referred appellant to 

Dr. Ha’Eri for a second opinion examination. In a December 24, 2013 letter, the employing 

 3

 Docket No. 15-1494 (issued December 24, 2015). 
3

establishment clarified that while in the offered customer care agent position appellant could sit 

or stand as needed for comfort and there was no continuous typing. 

In a report dated February 5, 2014, Dr. Ha’Eri provided a history and results on 

examination. He diagnosed left elbow cubital tunnel syndrome, bilateral knee patellofemoral 

stress syndrome, cervical sprain/strain, and aggravation of preexisting multilevel cervical 

degenerative disc disease and protrusions, giving rise to neck pain and upper extremity 

radiculopathies, left worse than right. Dr. Ha’Eri opined that the degenerative cervical condition 

had been permanently aggravated by the employment injury. He indicated that the cervical 

surgery had failed and appellant continued to have neck pain and stiffness associated with 

bilateral upper extremity radiculopathy. As to the offered position, Dr. Ha’Eri reported: “It is 

my opinion that the claimant is able to return to a sedentary work as long as he has 15 minutes of 

break every two hours. The job offer of customer care agent was reviewed and it seems a 

suitable position for him.” Dr. Ha’Eri also provided physical restrictions that included one hour 

reaching above shoulder, 10 pounds pushing, pulling and lifting, and two hours of repetitive 

movements of the wrist and elbows. 

In a toxicology report dated March 17, 2014, appellant tested positive for two 

nonprescribed substances: THC-COOH and 7-Aminoclonazepam. 

On March 28, 2014 the employing establishment offered appellant the full-time customer 

care agent position. Appellant refused the job offer, indicating that it was not medically suitable. 

He submitted an April 3, 2014 report from Dr. Darakjian, who provided a history and results on 

examination, indicating that he had reviewed records, including the job of customer care agent. 

Dr. Darakjian diagnosed status post cervical anterior interbody fusion with residual 

radiculopathy, and status post left cubital tunnel syndrome. He reported that appellant continued 

to take pain medication, Nucynta (Tapentadol) and Neurontin (Gabapentin), and was currently 

managing his pain well with this medication. 

According to Dr. Darakjian, the medication made appellant drowsy, and he had difficulty 

sitting in one position more than 45 minutes at a time. He reported that appellant was unable to 

perform repetitive movements, such as typing on a keyboard or using a computer mouse more 

than 15 minutes at a time. Dr. Darakjian opined that appellant “is not capable of performing the 

duties of customer care agent for a call center due to the length of time needed to focus, sit, and 

use the hands to operate the computer. He remains totally disabled.” 

By letter dated April 18, 2014, OWCP advised appellant that it found the job offer of 

customer care agent suitable. It found that Dr. Ha’Eri represented the weight of the medical 

evidence. Appellant was advised of the provisions of 5 U.S.C. § 8106(c)(2) and further advised 

that if he failed to accept the position he should provide written explanation of reasons within 30 

days. 

Appellant submitted a letter on May 8, 2014 and asserted that the SOAF was not entirely 

accurate as he was only a supervisor from 2004 to 2006 for a couple of months a year.4

 He again 

 4

 The December 24, 2013 SOAF had indicated that appellant worked as a supervisor in the year prior to his 

injury. 
4

opined that the job offered was not medically suitable based on the evidence. The record 

contains a toxicology report dated May 12, 2014, indicating positive results for Zolpidem and 7-

Aminoclonazepam. In a toxicology report dated June 5, 2014, appellant tested positive for 

Tramadol, Zolpidem, and 7-Aminoclonazepam. 

By letter dated June 27, 2014, OWCP advised appellant that the reasons for refusing the 

job offer were not acceptable. It advised that he had had an additional 15 days to accept the 

position or his entitlement to wage-loss compensation and schedule award benefits would be 

terminated. 

On August 4, 2014 appellant submitted a July 3, 2014 report from Dr. Darakjian, who 

provided results on examination. Dr. Darakjian noted that he had found in his April 3, 2014 

report that appellant could not perform the customer care agent position, and his opinion 

remained unchanged. 

By decision dated July 16, 2014, OWCP terminated appellant’s compensation benefits 

and entitlement to a schedule award, effective July 16, 2014, pursuant to 5 U.S.C. § 8106(c)(2). 

It found Dr. Ha’Eri represented the weight of the medical evidence, as there was no evidence 

from a treating physician disputing his findings directly. With regard to medications, OWCP 

found that the toxicology reports dated May 12 and June 5, 2014 did not reflect any positive tests 

for the prescribed medications, but August 13, 2013 and March 17, 2014 reports were positive 

for marijuana use. It noted that Dr. Darakjian had not addressed these results. 

In a report dated August 28, 2014, Dr. Darakjian indicated that appellant continued to 

report neck pain. He stated that appellant reported that the prescribed medication of Nucynta and 

Gabapentin made him sleepy. Dr. Darakjian stated that appellant was disabled “as he is not able 

to do even the modified duties that have been provided to him due to the fact that he has 

difficulty with prolonged sitting, repetitive use of the hands, typing, focusing and concentrating 

on his work.” 

Appellant requested a telephonic hearing with an OWCP hearing representative, which 

was held on March 18, 2015. At the hearing, he argued that acceptance of his claim should be 

expanded to include a permanent aggravation of the cervical condition. By decision dated 

June 3, 2015, the hearing representative affirmed the July 16, 2014 suitable work termination. 

He found that OWCP met its burden of proof to terminate compensation for refusal of suitable 

work. 

On June 30, 2015 appellant filed a timely appeal to the Board. The Board affirmed the 

June 3, 2015 hearing representative’s decision on December 24, 2015.5

 The Board reviewed the 

evidence and found that Dr. Ha’Eri had provided a rationalized medical opinion that appellant 

could perform the offered customer care agent position. 

Appellant, through counsel, requested reconsideration on February 22, 2016. In a report 

dated October 1, 2015, Dr. Darakjian provided a history and results on examination. He opined 

that appellant was totally disabled. 

 5 Supra note 2. 
5

By decision dated April 7, 2016, OWCP found that the reconsideration request was 

insufficient to warrant merit review. 

On May 20, 2016 appellant, through counsel, again requested reconsideration. Counsel 

argued that Dr. Ha’Eri’s report was insufficient to establish that appellant could perform the 

offered position, because he had referred to limiting repetitive motion. According to counsel, the 

customer case agent position required repetitive motion and pushing/pulling. Appellant 

submitted a July 7, 2016 report from Dr. Darakjian. Dr. Darakjian provided results on 

examination and opined that appellant could not work in a position that required sitting for more 

than 20 to 30 minutes at a time. 

By decision dated August 12, 2016, OWCP declined to review the merits of the claim. It 

found the evidence and argument was insufficient to warrant merit review pursuant to 5 U.S.C. 

§ 8128(a). 

On August 22, 2016 appellant, through counsel, again requested reconsideration. 

Counsel again argued that the offered job required repetitive motion. He also argued that the 

reports from Dr. Darakjian showed that appellant was taking prescribed medications. Counsel 

asserted that Tramadol corresponded to a prescribed medication, and OWCP should have sought 

clarification from an OWCP medical adviser. 

Appellant submitted a July 7, 2016 report from Dr. Darakjian, who reported that 

appellant complained of constant neck pain. Dr. Darakjian wrote that a urine test showed 

positive findings for Tramadol, which was a byproduct of prescribed Nucynta, Clonazepam, and 

Zolpidem. Appellant also submitted a September 1, 2016 report from Dr. Darakjian, who 

provided results on examination. 

By decision dated November 18, 2016, OWCP declined to review the merits of the claim. 

It found appellant had not met any of the requirements to warrant a merit review of the case 

under 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6

OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or 

(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”7

 20 

C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

 6

 5 U.S.C. § 8128(a) (provides that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application”). 

7

 20 C.F.R. § 10.606(b)(3). 
6

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.8

The submission of a new medical report does not itself require reopening the claim for 

merit review.9

 The evidence must address the particular issue involved in the case.10

ANALYSIS 

In the present case, the Board has jurisdiction to review appellant’s two nonmerit 

reconsideration decisions, dated August 12 and November 18, 2016. 

The Board finds that appellant has failed to show that OWCP erroneously applied or 

interpreted a specific point of law. Counsel argued that the evidence from Dr. Ha’Eri did not 

show that the customer care agent position was medically suitable. He argued that the job 

required repetitive motion pushing/pulling, and Dr. Ha’Eri had limited repetitive movement of 

the wrist and elbow, as well as pushing and pulling. 

It is well established that where the legal argument presented has no reasonable color of 

validity, OWCP is not required to reopen the case for merit review.11 As the Board explained in 

the prior decision, Dr. Ha’Eri specifically indicated in his February 5, 2014 report that he had 

reviewed the customer care agent position requirements. The facts of the case indicate that 

Dr. Ha’Eri had initially reviewed the job in his May 1, 2013 report, and at that time found it was 

not suitable as he had to use his hands repeatedly for eight hours per day without breaks. Later 

on February 5, 2014 based on a new SOAF, Dr. Ha’Eri indicated that appellant could return to 

sedentary work so long as he had 15-minute breaks every two hours. The Board found in its 

prior decision that Dr. Ha’Eri had provided a rationalized medical opinion, based on a complete 

background, that appellant could perform the offered position. Dr. Ha’Eri clearly and 

unequivocally found that appellant could perform the offered job. 

Counsel also raised an argument with respect to medications. Dr. Darakjian had reported 

that appellant was taking pain medications in his April 4, 2014 report. This argument was 

discussed by the Board in the prior decision.12 

On reconsideration appellant argued that medication found on a June 5, 2014 toxicology 

test, Tramadol, was a byproduct of prescribed medications. The relevant issue in the case was 

whether appellant could perform the customer care agent position. Whether or not Tramadol 

may be a byproduct of a prescribed medication is not the issue. The question was how the taking 

 8

 20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

9 See Kevin M. Fatzer, 51 ECAB 407 (2000). 

10 Richard L. Ballard, 44 ECAB 146 (1992). 

11 See Norman W. Hanson, supra note 8. 

12 Findings made in prior Board decisions are res judicata absent any further review by OWCP under section 

8128 of FECA. See H.G., Docket No. 16-1191 (issued November 25, 2016). 
7

of a prescribed medication prohibited his performance of the offered job. The Board finds the 

argument raised has no reasonable color of validity.13

As to the submission of new and pertinent medical evidence, the Board finds appellant 

did not meet this standard. Appellant submitted a July 7, 2016 report from Dr. Darakjian that 

briefly referred to Tramadol as a byproduct of prescribed medications. Again, the underlying 

issue was whether the medications appellant was taking prior to the July 16, 2014 termination 

would have rendered the offered position unsuitable. Dr. Darakjian did not discuss the issue. 

The Board accordingly finds that appellant has failed to 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 constitute relevant and pertinent evidence not previously considered by OWCP. OWCP 

properly denied the reconsideration request without merit review in this case. 

On appeal counsel reiterates the arguments raised before OWCP that appellant had 

submitted a new legal argument and relevant evidence. He also appears to argue the August 12, 

2016 OWCP decision was a review of the merits because it found the evidence was insufficient 

to overturn the prior decision. The August 12, 2016 decision clearly indicated that it was 

denying merit review of the claim. OWCP found that the evidence submitted was irrelevant to 

the underlying issue and not sufficient to warrant a merit review. 

For the reasons discussed above, the Board finds that appellant did not meet the 

requirements for a merit review of the claim. 

CONCLUSION 

The Board finds OWCP properly determined that appellant’s requests for reconsideration 

were insufficient to warrant merit review of the claim under 5 U.S.C. § 8128(a). 

 13 Supra note 11. 
8

ORDER 

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

Compensation Programs dated November 18 and August 12, 2016 are affirmed. 

Issued: July 21, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board