United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tinley Park, IL, Employer 

__________________________________________ 

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Docket No. 15-1528 

Issued: November 17, 2015 

Appearances: Case Submitted on the Record

Brett E. Blumstein, Esq., for the appellant 

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 July 6, 2015 appellant, through counsel, filed a timely appeal of a May 18, 2015 

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

180 days elapsed from April 28, 2014, the most recent OWCP merit decision, 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 to review the merits of this case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

On appeal counsel argues that OWCP should have granted a review of the merits. He 

further contends that OWCP may not have given appellant’s request for reconsideration a review 

at all. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 30, 2009 appellant, a 41-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1), alleging that she sustained an injury on October 1, 2008 as a result of being struck 

on the left side of her postal vehicle during a motor vehicle accident while delivering mail in the 

performance of duty. OWCP accepted the claim for displacement of cervical intervertebral disc 

without myelopathy and appellant received compensation benefits. 

OWCP referred appellant to Dr. Steven Mather, an orthopedic surgeon, for an impartial 

medical examination to determine the nature and extent of her employment-related condition 

following the identification of a conflict in the medical record of this case. In his August 1, 2012 

report, Dr. Mather found that appellant had “no findings on examination, nor any neck 

complaints after her motor vehicle accident by her treating physicians in November 2008, to 

validate the neck injury was from the October motor vehicle accident.” He concluded that 

appellant had no employment-related conditions or residuals. 

In a December 17, 2012 letter, OWCP proposed to rescind the acceptance of appellant’s 

cervical condition and terminate her compensation benefits after finding that her cervical 

condition was not employment related. It afforded her 30 days to submit additional evidence or 

argument if she was in disagreement with the proposed action. 

In a brief dated January 17, 2013, appellant’s attorney argued that Dr. Mather’s opinion 

was insufficiently based on the statement of accepted facts (SOAF) and lacked sufficient 

probative value to rescind appellant’s accepted cervical condition and terminate her 

compensation benefits. 

By decision dated March 5, 2013, OWCP rescinded the acceptance of appellant’s cervical 

condition and terminated her compensation benefits finding that her cervical condition was not 

employment related, relying upon Dr. Mather’s August 1, 2012 report. 

On March 5, 2014 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence, including a January 27, 2014 report from Dr. Nadia Siddiqui, her 

internist. 

By decision dated April 28, 2014, OWCP denied modification of its March 5, 2013 

termination decision. It explained that the weight of the medical evidence continued to rest with 

Dr. Mather as he was an appropriate specialist to evaluate the claimed conditions, that he 

reviewed appellant’s file, and that he conducted a thorough physical examination, and that he 

provided an unequivocal and well-reasoned medical opinion resolving the conflict in medical 

opinion based on accurate and consistent factual and medical history. 

On April 27, 2015 appellant, through counsel, requested reconsideration of the merits of 

her claim. Counsel submitted a brief dated April 26, 2015 arguing: (1) Dr. Mather had not 

based his opinion on the SOAF; (2) OWCP had not given Dr. Mather the correct standard for 

determining whether appellant’s diagnosis was related to her work injury; and (3) Dr. Mather 

never answered the questions that OWCP presented to him. 
3

By decision dated May 18, 2015, OWCP denied appellant’s request for reconsideration of 

the merits finding that she did not submit pertinent new and relevant evidence and did not show 

that OWCP erroneously applied or interpreted a point of law not previously considered by 

OWCP. 

LEGAL PRECEDENT 

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

a matter of right; it vests OWCP with discretionary authority to determine whether it will review 

an award for or against compensation.2

 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).3

 

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

OWCP 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 

pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.5 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.6 

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

duplicates evidence or argument already in the case record7 and the submission of evidence or 

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

reopening a case.8 

ANALYSIS 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

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

Appellant did not submit any evidence to show that OWCP erroneously applied or 

interpreted a specific point of law or advanced a relevant legal argument not previously 

                                                             2

 5 U.S.C. § 8101 et seq. 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). 

3 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608(b). 

7 See A.L., Docket No. 08-1730 (issued March 16, 2009). 

8 Id. 
4

considered by OWCP. In support of her April 27, 2015 reconsideration request, appellant’s 

counsel submitted a brief dated April 26, 2015 arguing that: (1) Dr. Mather had not based his 

opinion off of the SOAF; (2) OWCP had not given Dr. Mather the correct standard in 

determining whether appellant’s diagnosis was related to her work injury; and (3) Dr. Mather 

never answered the questions that OWCP presented to him. 

The Board finds that submission of these arguments does not require reopening 

appellant’s case for merit review as they are substantially similar to the arguments counsel 

presented in his January 17, 2013 brief and were addressed by OWCP in its merit decisions dated 

March 5, 2013 and April 28, 2014, which found that Dr. Mather was an appropriate specialist, 

reviewed the entire case file, completed a thorough physical examination, and provided a wellreasoned and unequivocal medical opinion based on a complete, accurate, and consistent history 

of appellant’s case. Therefore, this evidence is repetitive or duplicative of arguments previously 

considered and reviewed by OWCP, it does not constitute relevant and pertinent new evidence 

and is insufficient to require OWCP to reopen the claim for consideration of the merits.9

 

Appellant did not submit any new medical evidence in support of her request. 

On appeal counsel argues that OWCP should have granted a review of the merits. The 

Board finds that as appellant did not meet any of the necessary requirements, she is not entitled 

to further merit review.10 Counsel further contends on appeal that OWCP may not have given 

appellant’s request for reconsideration a review at all. The Board finds that counsel’s argument 

is not substantiated as OWCP noted considering counsel’s brief. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

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

                                                             9 See supra note 7. 

10 See L.H., 59 ECAB 253 (2007). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 18, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 17, 2015 

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