United States Department of Labor

Employees’ Compensation Appeals Board

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N.M., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION FACILITY, Anaheim, CA, 

Employer

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Docket No. 17-1626

Issued: February 2, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 24, 2017 appellant filed an appeal from February 24 and June 28, 2017 nonmerit 

decisions of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 

days elapsed from April 12, 2016, the date of the most recent 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 appellant’s claim.

ISSUE

The issue is whether OWCP properly denied appellant’s requests 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

On August 5, 2015 appellant, then a 48-year-old labor custodian, filed an occupational 

disease claim (Form CA-2) alleging that he sustained stress injuries to the hands and wrists as a 

result of repetitive gripping and grasping required by his employment duties. A supervisor noted 

that appellant had not stopped work.

In an attached statement dated July 24, 2015, appellant explained that his current 

condition was caused by daily work duties requiring four to five hours of gripping, grasping a 

dust mop, wiping down surfaces, and folding cardboard boxes into a recycling compactor. He

stated that he had been performing these tasks since August 2005 and that prior to that time he 

worked as a letter carrier for 15 years.

In a statement dated August 5, 2015, a supervisor contended that appellant’s workload 

did not consist of four to five hours of consistent gripping, grasping, and dust mopping. He

stated that appellant may take one to two hours cleaning a work area, using the remainder of his 

time to pick up loose paper and trash with a “toy broom” and maintaining a clean workspace. 

The supervisor noted that appellant would normally have to wipe mirrors “maybe once a week,”

consisting of seven mirrors at three minutes a piece; and that recycling of cardboard boxes would 

take up to 20 minutes.

By letter dated August 11, 2015, OWCP informed appellant of the evidence needed to 

establish his claim. It requested that he submit additional factual and medical evidence, and to 

respond to a claim development questionnaire. OWCP afforded appellant 30 days to submit the 

additional information.

In a report dated June 5, 2015, Dr. Maliheh Massih, Board-certified in physical medicine 

and rehabilitation, examined the results of an electrodiagnostic report of the upper extremities. 

She stated an assessment of a slight probability of the early onset of bilateral carpal tunnel 

syndrome, due to median nerves appearing to be somewhat more delated with the ipsilateral 

ulnar nerves.

On July 24, 2015 appellant responded to OWCP’s questionnaire. He explained that 

duties of his federal employment as a letter carrier, including all aspects of preparing and 

delivering mail involving working with his hands, from October 1990 through August 2005, 

contributed to his condition. Appellant noted that all of the duties of his position involving 

working with his hands as a labor custodian also contributed to his condition. He stated that he 

did not have any hobbies outside of work, such as playing sports or using the computer.

In a report dated July 24, 2015, Dr. Edward Mittleman, a family practice physician, 

diagnosed appellant with aggravation of early bilateral arthritis of the hand, and bilateral chronic 

sprain/strain of the hands. He described the duties of appellant’s employment as a letter carrier 

and as a labor custodian involving the use of his hands. Dr. Mittleman opined that appellant’s 

constant use of his hands in his work resulted in aggravation of early hand osteoarthritis, chronic 

sprain/strain, and inflammation of the ligaments and tendons of his hands.
3

On September 21, 2015 OWCP directed appellant to attend a second opinion examination 

in order to determine the causal relationship between his diagnosed conditions and factors of his 

federal employment. 

In a report dated October 12, 2015, Dr. Jacob Rabinovich, a Board-certified orthopedic 

surgeon, reviewed appellant’s medical history, conducted a physical examination, and diagnosed 

appellant with early signs of bilateral arthritis of the hands. He indicated that appellant’s 

diagnosis was not causally related to his federal employment, noting that his diagnosed condition 

was in its very early stages with limited objective findings. Dr. Rabinovich concluded that 

appellant’s physical activities did not have an etiological relationship to the diagnosis. 

By decision dated October 26, 2015, OWCP denied appellant’s claim. It found that the 

weight of medical evidence rested with Dr. Rabinovich, because he was a Board-certified 

orthopedic surgeon of the appropriate specialty, was given an opportunity to review appellant’s 

medical history and performed an in-person examination. As such, OWCP found that appellant 

had not submitted sufficient evidence to establish a causal relationship between his diagnosed 

condition and factors of his federal employment.

On January 16, 2016 appellant requested reconsideration of OWCP’s October 26, 2015 

decision. With his request for reconsideration, he attached a December 1, 2015 report from

Dr. Mittleman. Dr. Mittleman disputed Dr. Rabinovich’s report dated October 12, 2015, relating 

that “I do think [that] there is an argument for some relationship in the development of early 

degenerative changes in [appellant’s] bilateral hands considering that he spent the first 15 years 

as a city letter carrier and then the last 9 years as a custodian.” He argued that appellant’s claim 

should be accepted for aggravation of early bilateral arthritis of the hands and bilateral chronic 

sprain/strain of the hands.

By decision dated April 12, 2016, OWCP reviewed the merits of appellant’s claim and 

declined to modify its prior decision. It found that his description of duties of his federal 

employment was inaccurate, based on the August 5, 2015 statement of the employing 

establishment; and that as Dr. Mittleman’s medical opinion was based on that inaccurate history 

of injury, it was of little probative value in establishing a causal relationship.

On November 29, 2016 appellant requested reconsideration of OWCP’s April 12, 2016 

decision. With his request for reconsideration, he attached a November 4, 2016 report from

Dr. Mittleman. Dr. Mittleman referred to a July 5, 2016 letter from a coworker of appellant, 

noting that appellant’s position as a tour two custodian performed cleaning routes involving 

thorough cleaning, while the custodians on other tours performed policing routes, which entailed 

far less thorough cleaning. The coworker noted that appellant had requested work assignment 

sheets from the employing establishment on two occasions, but had not received a response. 

Based upon this July 5, 2016 letter, Dr. Mittleman contended that the history of injury as related 

to him by appellant was accurate, and the history of injury accepted by OWCP in its April 12, 

2016 decision was inaccurate. He reiterated that his diagnosis was for aggravation of early hand 

arthritis and that Dr. Rabinovich had not addressed his second diagnosis of chronic sprain/strain 

of the bilateral hands.
4

Appellant submitted an employee work assignment sheet dated September 8, 2015, 

demonstrating that he was scheduled to clean for four hours and recycle cardboard, plastic, and 

paper for zero hours. He also resubmitted his description of all of the duties involving use of his 

hands as a letter carrier and as a custodian.

By decision dated February 24, 2017, OWCP denied appellant’s request for 

reconsideration. It found that the employee work assignment sheet and his description of duties 

of his federal employment were already reviewed in prior decisions. OWCP found that the 

statement of a coworker dated July 7, 2016 did not provide any direct evidence regarding 

appellant’s duties. It found that Dr. Mittleman’s report of November 4, 2016 was based on an 

inaccurate account of appellant’s duties, and that therefore it had little probative value with 

regard to proving a causal relationship. 

On April 11, 2017 appellant requested reconsideration of OWCP’s April 12, 2016 

decision. He stated his belief that the weight assigned to his supervisor’s August 5, 2015 

statement describing duties of his federal employment was in error. Appellant described in detail 

the duties of a tour two custodian. He arrived at work at 5:00 a.m. and began cleaning, 

continuing in all areas while employees reported to work, with the latest arriving at noon. 

Appellant noted that, prior to September 2015, the entire work floor had to be swept and mopped 

before employees reported to work, and that currently it had to be vacuumed. Surfaces had to be 

wiped down and dusted, and bathrooms cleaned, including sweeping and mopping floors, 

scrubbing toilets, and wiping down all surfaces with disinfectant. Appellant noted that the 

supervisor’s statement only referenced that it took 21 minutes to clean seven mirrors, minimizing 

the amount of work he had to perform. He also submitted images of six cleaning routes. 

Appellant submitted employee work assignment sheets from various dates. In a work 

assignment sheet dated April 5, 2017, it was noted that he cleaned workrooms on route 4, which 

was estimated to take 3.06 hours. Appellant also was assigned to clean workrooms on route 3, 

which was estimated to take 2.51 hours. On April 6, 2017 he was assigned to police workrooms 

on route 1, which was estimated to take 6.98 hours. The remainder of appellant’s duties included 

recycling, which was estimated to take zero hours. On April 7, 2017 he was assigned to clean 

workrooms on route 4 and route 3, which were estimated to take 3.06 and 2.51 hours, 

respectively. The remainder of appellant’s duties included recycling and attending a safety talk, 

which were estimated to take zero hours. On April 8, 2017 he was assigned to clean workrooms 

on routes 1 and 2, which were estimated to take 3.50 hours each.

In an undated statement, a coworker who was also a custodian explained that tour two

custodians are known as “the cleaning tour.”

In a report dated January 5, 2017, Dr. Mittleman noted that appellant continued to have 

symptoms in his right hand during work, but that they could be ignored if he was really involved 

in his work. In appellant’s left hand, the symptoms were distractingly painful.

By decision dated June 28, 2017, OWCP denied appellant’s request for reconsideration. 

It found that the evidence submitted by him was irrelevant or immaterial because it had no 

bearing on the issue of causal relationship.
5

LEGAL PRECEDENT

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

evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations 

provide that, when an application for reconsideration 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.3

ANALYSIS

OWCP issued a decision dated April 12, 2016, in which it found that appellant’s 

description of duties of his federal employment was inaccurate, based on the August 5, 2015 

statement of a supervisor; and that as Dr. Mittleman’s medical opinion was based on that,

inaccurate history of injury, it was of little probative value in establishing a causal relationship. 

On November 29, 2016 and April 11, 2017 appellant requested reconsideration.

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 her claim. 

The Board finds that he met the requirements of 20 C.F.R. § 10.606(b)(3) in both his 

November 29, 2016 and April 1, 2017 requests for reconsideration and OWCP incorrectly denied 

merit review in both decisions.

In his November 29, 2016 and April 11, 2017 requests for reconsideration, appellant did 

not show that OWCP erroneously applied or interpreted a specific point of law, or advance a new 

and relevant legal argument not previously considered. Thus, he is not entitled to a review of the 

merits of his claim based on the first and second above-noted requirements under section 

10.606(b)(3).

The underlying issue is whether appellant has submitted sufficient evidence to establish 

that his alleged employment duties as a letter carrier and custodian caused his diagnosed bilateral 

hand conditions. A claimant may be entitled to a merit review by submitting new and relevant 

evidence, and in the present claim, appellant submitted new and relevant evidence that was

mischaracterized as irrelevant or repetitive by OWCP.

In a statement dated August 5, 2015, a supervisor contended that appellant’s workload 

did not consist of four to five hours of consistent gripping, grasping, and dust mopping. He

stated that appellant may use one to two hours cleaning a work area, using the remainder of his 

time to pick up loose paper and trash with a “toy broom” and maintaining a clean workspace. 

The supervisor noted that appellant would normally have to wipe mirrors “maybe once a week,”

 

2 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).
6

consisting of seven mirrors at three minutes a piece; and that recycling of cardboard boxes would 

take up to 20 minutes.

By decision dated April 12, 2016, OWCP reviewed the merits of appellant’s claim and 

declined to modify its prior decision. It found that his description of duties of his federal 

employment was inaccurate, based on the August 5, 2015 statement from the supervisor; and that 

as Dr. Mittleman’s medical opinion was based on that inaccurate history of injury, it was of little 

probative value in establishing a causal relationship.

With his November 29, 2016 request for reconsideration, appellant submitted a 

November 4, 2016 report from Dr. Mittleman. Dr. Mittleman referred to a July 5, 2016 letter 

from appellant’s coworker, stating that, as a tour two custodian, appellant performed cleaning 

routes involving thorough cleaning, while the custodians on other tours performed policing 

routes, which entailed far less thorough cleaning. Based upon this July 5, 2016 letter, he

contended that the history of injury as related to him by appellant was accurate, and the history 

of injury accepted by OWCP in its April 12, 2016 decision was inaccurate. Dr. Mittleman 

reiterated that his diagnosis was for aggravation of early hand arthritis, and that Dr. Rabinovich 

had not addressed his second diagnosis of chronic sprain/strain of the bilateral hands.

Appellant also submitted an employee work assignment sheet dated September 8, 2015, 

demonstrating, contrary to the supervisor’s statement of August 5, 2015, that he was scheduled 

to clean for four hours and recycle cardboard, plastic, and paper for zero hours.

Dr. Mittleman’s November 4, 2016 report, the employee work assignment sheet, and the 

account of appellant’s duties by a coworker were new and relevant pieces of evidence. OWCP 

denied the probative value of Dr. Mittleman’s report based on an inaccurate description of 

appellant’s duties. Because the reason for finding that Dr. Mittleman’s opinion on causation was 

not probative was wholly based on the supervisor’s August 5, 2015 statement, the evidence 

submitted by appellant regarding his duties is relevant to the claim. Furthermore, although 

OWCP may have considered Dr. Mittleman’s November 4, 2016 report to be of little probative 

value based on the supervisor’s August 5, 2015 statement, it was still a medical report from a 

qualified physician containing an opinion on causal relationship. As such, both the evidence 

regarding appellant’s actual duties of federal employment and Dr. Mittleman’s November 4, 

2016 report were relevant evidence not previously considered by OWCP. OWCP erred in 

denying merit review in its February 24, 2017 decision.

For similar reasons, OWCP also erred in denying merit review in its June 28, 2017 

decision. Evidence not previously considered relative to appellant’s duties in the supervisor’s 

August 5, 2015 statement would be relevant to establishing causal relationship. On 

reconsideration, appellant submitted work assignment sheets from various dates, demonstrating 

that the account of his duties in the supervisor’s statement was not correct. Thus, OWCP was 

incorrect in finding that he had not submitted relevant evidence not previously considered with 

his April 1, 2017 request for reconsideration, because OWCP’s finding that Dr. Mittleman’s 

opinion on causal relationship was of little probative value was based entirely on the supervisor’s 

August 5, 2015 statement, and work assignment sheets casting doubt on that statement are 

therefore relevant evidence to the issue of causal relationship.
7

As such, the Board finds that OWCP improperly declined to reopen appellant’s claim for 

a review of the merits in its February 24 and June 28, 2017 decisions. Dr. Mittleman’s report of 

November 4, 2016; the work assignment sheet dated September 8, 2015; the statements of 

coworkers on appellant’s duties; and the work assignment sheets dated between April 5 and 8, 

2017 were relevant to the underlying issue of whether appellant’s alleged employment duties 

caused his diagnosed conditions. OWCP was required to reopen the case for merit review upon 

reconsideration.

The Board accordingly finds that appellant met the third above-noted requirement of 20 

C.F.R. § 10.606(b)(3) in his reconsideration requests of November 29, 2016 and April 1, 2017. 

Appellant submitted relevant and pertinent evidence not previously considered. Thus, pursuant 

to 20 C.F.R. § 10.608, OWCP improperly denied merit review.

CONCLUSION

The Board finds that OWCP improperly 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 June 28 and February 24, 2017 decisions of the 

Office of Workers’ Compensation Programs are vacated and this case is remanded for further 

proceedings consistent with this opinion, to be followed by an appropriate decision.

Issued: February 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board