United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tujunga, CA, Employer 

__________________________________________ 

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Docket No. 17-1193 

Issued: August 16, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 May 10, 2017 appellant, through counsel, filed a timely appeal from an April 7, 2017 

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

180 days elapsed from OWCP’s last merit decision, dated January 21, 2016, 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 the claim.3

 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. 

3

 The record provided the Board includes evidence received after OWCP issued its April 7, 2017 decision. 

However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued 

its final decision. Thus, it is precluded from reviewing this additional evidence for the first time on appeal. 

20 C.F.R. § 501.2(c)(1). 
2

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 November 5, 2012 appellant, then a 53-year-old mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained an occupational disease of his right 

shoulder due to sorting and delivering mail, lifting mail trays, and carrying a mailbag on his right 

shoulder over time. OWCP accepted that he sustained a partial right rotator cuff tear. Appellant 

stopped work on July 17, 2014 and received wage-loss compensation on the daily roll beginning 

July 17, 2014. 

OWCP had previously accepted that appellant sustained several other work-related 

conditions, including right wrist and hand (metacarpophalangeal joint) sprains sustained on 

February 3, 1998 (File No. xxxxxx156), plantar fibromatosis of the right foot sustained as of 

August 2, 1999 (File No. xxxxxx175), synovitis/tenosynovitis of the left leg and medial 

meniscus tear of the left knee sustained as of February 17, 2004 (File No. xxxxxx575), and a dog 

bite of the right leg sustained on February 17, 2004 (File No. xxxxxx590). 

In an August 28, 2014 report, Dr. Daniel Kharazzi, an attending Board-certified 

orthopedic surgeon, diagnosed several right shoulder conditions, including impingement, 

acromioclavicular joint degeneration, partial rotator cuff tear, and superior labrum tear from 

anterior to posterior. He indicated that appellant could not push or pull with his right arm, lift 

more than five pounds, or perform overhead work with his right arm. 

On September 8, 2014 the employing establishment offered appellant a full-time position 

as a customer care agent in Agua Dulce, California. The position involved communicating with 

customers through telephone calls, e-mails, and online chats, and responding to their inquiries 

about postal products and services. The physical requirements of the position included walking 

continuously/intermittently for five hours per day and lifting up to five pounds. The position did 

not require overhead lifting, pushing, or pulling with the right arm, and it allowed the employee 

to type and use a computer mouse at his or her own speed. The position permitted alternating 

between sitting and standing as needed for comfort and the employee would use a headset to 

answer telephone calls. 

Appellant signed the job offer on September 19, 2014 noting, “I accept with protest.” In 

a September 20, 2014 statement, he explained that he accepted the customer care agent position 

with protest because the position required him to change from the carrier craft to the clerk craft, 

travel 55 miles from his home to get to work, change his start time from 7:30 a.m. to 10:05 a.m., 

and change his rotating day off. Appellant also noted that he was not permanent and stationary 

with respect to his medical condition because he was awaiting surgery on his right shoulder. 

On October 20, 2014 Dr. Kharazzi performed an OWCP-authorized arthroscopic 

decompression, acromioplasty, and bursectomy surgery of appellant’s right shoulder. The 
3

employing establishment advised that appellant failed to report for work on October 20, 2014 in 

the customer care agent position.4 

On December 23, 2014 and March 16, 2015 OWCP requested that Dr. Kharazzi submit a 

report describing appellant’s current medical condition and providing an assessment of his ability 

to work. 

On March 19, 2015 appellant underwent a functional capacity evaluation (FCE) which 

showed that he was capable of occasionally lifting and carrying up to 35 pounds, pushing up to 

61 pounds, and pulling up to 52 pounds. 

In June 2015, an employing establishment official advised OWCP that appellant had 

retired effective April 30, 2015 that he and continued to receive FECA benefits after that date. 

Due to lack of a sufficient response from Dr. Kharazzi, OWCP referred appellant to 

Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, for a second opinion examination and 

opinion on his ability to work. It provided Dr. Ha’Eri with a recent statement of accepted facts 

which delineated all of appellant’s accepted work-related conditions and also provided him with 

a description of the customer care agent position offered by the employing establishment. 

In a July 24, 2015 report, Dr. Ha’Eri reported the findings of the physical examination he 

conducted on that date and diagnosed right shoulder degenerative rotator cuff tendinitis 

(temporarily aggravated by work duties) and status post arthroscopic impingement release of the 

right shoulder. He advised that he had reviewed the results of appellant’s March 19, 2015 FCE 

and opined that appellant could work as a customer care agent, but not as a mail carrier. In a 

July 14, 2015 form entitled Work Capacity Evaluation (Form OWCP-5c), Dr. Ha’Eri indicated 

that appellant could work eight hours with restrictions, including lifting, pushing, and pulling no 

more than 20 pounds (three hours per day for each action), reaching above shoulder level with 

his right arm for no more than one hour per day, and operating a motor vehicle at work for no 

more than two hours per day. 

In September 2015, OWCP received a July 13, 2015 report from Dr. Kharazzi who 

indicated that appellant could work with restrictions of lifting up to 25 pounds, no forceful 

pushing or pulling, and no repetitive overhead work with his right arm. 

On October 28, 2015 the employing establishment advised OWCP that the customer care 

agent position was still available to appellant. 

In an October 28, 2015 letter, OWCP advised appellant that the customer care agent 

position offered by the employing establishment on September 8, 2014 was deemed to be 

suitable and advised him that his entitlement to wage-loss compensation and schedule award 

benefits could be terminated under 5 U.S.C. § 8106(c)(2) if he failed to accept suitable work 

without good cause. It discussed the reasons he provided in his September 20, 2014 letter for his 

failure to report to the position and advised him that these reasons were not considered valid. 

OWCP indicated that the medical evidence showed that appellant was now capable of 

 4

 On October 19, 2014 appellant began receiving wage-loss compensation on the periodic roll. 
4

performing the physical duties of the position and noted, “Please note that even if you are retired, 

that is not a valid reason for refusing a suitable offer of employment. You are expected to accept 

the offered position and return to work if medically capable.” It provided appellant 30 days to 

accept the customer care agent position offered by the employing establishment or provide good 

cause for not doing so. 

Appellant submitted a letter to OWCP in which he noted that he continued to receive 

FECA benefits, but that he intended to collect retirement benefits after his FECA benefits ceased. 

He also submitted a July 19, 2015 letter in which the Office of Personnel Management (OPM) 

advised him that his Civil Service Retirement System (CSRS) or Federal Employees Retirement 

System (FERS) annuity would be suspended while he was receiving FECA benefits, but that he 

could receive CSRS or FERS benefits if his FECA compensation ended. 

On December 14, 2015 the employing establishment advised OWCP that the customer 

care agent position was still available to appellant. 

In a December 14, 2015 letter, OWCP again informed appellant that all the reasons he 

provided for refusing the customer care agent position were invalid. It discussed the documents 

that he had submitted regarding his retirement. OWCP advised appellant that he had 15 days to 

accept the customer care agent position offered by the employing establishment and indicated 

that his entitlement to wage-loss compensation and schedule award benefits would be terminated 

if he failed to report to the position within the allotted period. Appellant did not accept the 

customer care agent position within the allotted period. 

On January 21, 2016 the employing establishment advised OWCP that the customer care 

agent position was still available to appellant. 

In a January 21, 2016 decision, OWCP terminated appellant’s entitlement to wage-loss 

compensation and schedule award benefits effective January 21, 2016 due to his refusal of 

suitable work without good cause pursuant to 5 U.S.C. § 8106(c)(2). 

In a letter dated and received on January 17, 2017, appellant, through counsel, requested 

reconsideration of OWCP’s January 21, 2016 decision. Counsel argued that appellant provided a 

valid reason for refusing the customer care agent position as he had informed OWCP that he was 

receiving disability retirement benefits. He asserted that OWCP never informed appellant that 

retirement was not a valid excuse for refusing a suitable job offer and that it did not cite a statute, 

rule, or regulation that “disqualified [appellant’s] excuse.” Counsel alleged that the employing 

establishment was disingenuous when it offered appellant the customer care agent position 

because it had already certified to OPM that it could not accommodate appellant’s impairment. 

He asserted that appellant could not have received FERS benefits unless the employing 

establishment had certified to OPM that it could not accommodate appellant with a job due to his 

impairment. 

In an April 7, 2017 decision, OWCP denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that, although his reconsideration 

request was timely, the argument he submitted through counsel did not constitute new and 

relevant argument or evidence requiring reopening of his claim for reconsideration of the merits. 
5

LEGAL PRECEDENT -- ISSUE 2 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.5

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.6

 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.7

 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (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.8

 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.9

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

duplicates evidence or argument already in the case record10 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.11 

ANALYSIS 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

In his application for reconsideration, he did not show that OWCP erroneously applied or 

interpreted a specific point of law. Appellant also did not identify a specific point of law or 

show that it was erroneously applied or interpreted, nor did he advance a new and relevant legal 

argument not previously considered by OWCP. The underlying issue in this case was whether 

OWCP properly terminated his entitlement to wage-loss and schedule award compensation, 

effective January 21, 2016, due to his refusal of suitable work without good cause, pursuant to 5 

U.S.C. § 8106(c)(2). 

 5

 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.607. 

7 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b. 

8

 20 C.F.R. § 10.606(b)(3). 

9 Id. at § 10.608(a), (b). 

10 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980). 

11 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
6

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

new evidence, but the Board finds that appellant has not submitted any such evidence in this 

case. In support of appellant’s reconsideration request, counsel argued that appellant provided a 

valid reason for refusing the customer care agent position because he informed OWCP about the 

postretirement benefits he was receiving. He asserted that OWCP never informed appellant that 

retirement was not a valid excuse for refusing a suitable job offer and that it did not cite a statute, 

rule, or regulation that “disqualified [appellant’s] excuse.” 

These arguments would not require reopening of appellant’s claim for reconsideration on 

the merits because counsel’s contentions are repetitive of arguments addressed by OWCP in its 

January 21, 2016 decision.12 

Counsel further alleged that the employing establishment was disingenuous when it 

offered appellant the customer care agent position because it had already certified to OPM that it 

could not accommodate appellant’s impairment and that he could not have received FERS 

benefits unless the employing establishment had certified to OPM that it could not accommodate 

him with a job due to his impairment. However, these arguments merely relate to appellant’s 

concerns about postretirement benefits and counsel has not adequately explained how they are 

relevant to the issue of the present case, i.e., termination of entitlement to compensation under 5 

U.S.C. § 8106(c)(2) due to failure to accept suitable work. As noted above, submission of 

evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.13

The Board accordingly finds that appellant has not met any of the requirements of 20 

C.F.R. § 10.606(b)(3). 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). 

 12 See supra note 10. 

13 See supra note 11. 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 7, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 16, 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