United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

U.S. POSTAL SERVICE, TUSTIN POST 

OFFICE, Tustin, CA, Employer 

__________________________________________ 

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Docket No. 17-0388 

Issued: June 15, 2017 

Appearances: Case Submitted on the Record

Linda Albers, Esq., for the appellant1

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 December 8, 2016 appellant, through counsel, filed a timely appeal from a July 12, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision of OWCP dated August 5, 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. 

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). 

 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

On appeal, counsel contends that appellant was in the performance of duty at the time of 

injury and OWCP failed to follow the Board’s findings and instructions by not reviewing the 

merits of the claim. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts and circumstances of the 

prior appeal are incorporated herein by reference. Relevant facts will be set forth below. 

On November 26, 2010 appellant, then a 57-year-old customer service supervisor, filed a 

traumatic injury claim (Form CA-1) under the current file, OWCP File No. xxxxxx615, alleging 

that at 7:00 p.m. on November 24, 2010 he sustained a head contusion and injuries to his nose, 

arm, hands, right knee, neck, and back when he tripped and fell on his face in the employing 

establishment’s parking lot while going to his car. He stopped work on November 26, 2010. 

In a November 29, 2010 letter, N.S., Postmaster, controverted the claim. She noted that 

appellant’s tour of duty ended at 1600 hours, 3 hours before his fall. N.S. maintained that three 

hours was not a reasonable amount of time to exit the facility. She further maintained that on the 

date of injury appellant was scheduled to work 8 hours, 0700 to 1600, and he was not given any 

additional duties to perform. Appellant was also not authorized to be in the facility conducting 

personal business. 

By decision dated January 18, 2011, OWCP denied appellant’s traumatic injury claim 

because he was not in the performance of duty at the time of the November 24, 2010 incident. It 

also found that the medical evidence of record did not address his specific work duties or 

mention that his fall occurred at work.4

In a September 12, 2011 letter, received by OWCP on September 16, 2011, appellant, 

through counsel, requested reconsideration. 

In a December 13, 2011 decision, OWCP denied modification of the July 12, 2011 

decision. It found that appellant had not submitted any new evidence to establish that he was 

authorized to work beyond his normal work schedule or that he was performing duties related to 

his employment. 

By letter dated April 30, 2012, counsel again requested reconsideration. She contended 

that appellant was on the clock at the time of injury and that the employing establishment was 

biased against him and failed to follow proper procedures in refusing to pay him for overtime 

work. Counsel submitted a March 1, 2012 declaration from J.H., a coworker, who indicated that 

appellant worked beyond his tour of duty on November 24, 2010. She also submitted letters 

dated January 19 and April 18, 2012 from C.S., a union secretary, who represented appellant 

during numerous fact-finding meetings with N.S. regarding his work performance that always 

resulted in the issuance of a letter of warning. Counsel noted that appellant had worked on 

 3

 Docket No. 13-0290 (issued November 8, 2013). 

4

 In the January 18, 2011 decision, OWCP also denied appellant’s claim for wage-loss compensation from 

January 8 through 28, 2011 as he had not established an employment-related injury. 
3

November 24, 2010 until 7:00 p.m. and explained how the employing establishment 

inappropriately handled supervisors who performed unauthorized overtime work. 

In an August 2, 2012 decision, OWCP denied further merit review of appellant’s claim. 

It found that the statements of C.S. were repetitious and cumulative. On November 20, 2012 

appellant, through counsel, appealed to the Board. 

By decision dated November 8, 2013, the Board found that OWCP had improperly 

denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).5

 The Board found that 

the statements of J.H. and C.S. constituted relevant and pertinent new evidence not previously 

considered by OWCP. The Board found that their statements directly addressed the basis upon 

which OWCP had denied appellant’s claim as they related to whether he was in the performance 

of duty prior to his injury. Accordingly, the Board set aside the August 2, 2012 decision and 

remanded the case for OWCP to conduct a merit review of the case. 

Following remand, OWCP issued an April 17, 2014 decision. It denied modification of 

its prior decision finding that appellant was not in the performance of duty at the time of the 

November 24, 2010 incident. OWCP reviewed the statements of C.S. and J.H. and found that 

this evidence of record was insufficient to establish that appellant was authorized to work beyond 

his normal work hours. It relied on the statements of N.S. denying that she had asked appellant 

to work overtime and indicated that there was no budget to accommodate duplicate work because 

an afternoon supervisor was assigned on November 24, 2010 to handle any such issues. 

In an April 15, 2015 letter, received by OWCP on July 7, 2015, appellant, through 

counsel, requested reconsideration. Counsel contended that OWCP committed legal error in its 

April 17, 2014 decision as it had failed to consider the overtime provisions of the Fair Labor 

Standards Act (FLSA) in determining whether appellant was in the performance of duty on 

November 24, 2010. She further contended that the employing establishment did not keep 

accurate or adequate records regarding employees’ overtime work. Counsel asserted that 

appellant had submitted sufficient evidence to establish a reasonable inference that he worked 

beyond his normal tour on November 24, 2010 and that the employing establishment had not 

submitted evidence to negate this inference. 

Counsel submitted unit feedback reports, documents related to the employing 

establishment’s timekeeping and overtime pay policies, declarations from employees who 

indicated that N.S. had harassed appellant, a clock ring report which indicated that he began his 

tour at 8:00 a.m. and ended his tour at 6:30 p.m. on November 24, 2010, and a July 31, 2015 

employing establishment letter requesting that OWCP deny his request for reconsideration. She 

also resubmitted evidence already of record. 

In an August 5, 2015 decision, OWCP denied modification of the April 17, 2014 

decision. It found that the evidence submitted was insufficient to establish that appellant 

sustained an injury on November 24, 2010 while in the performance of duty. 

By letter dated April 6, 2016, received by OWCP on April 13, 2016, counsel requested 

reconsideration and essentially reiterated the contentions she advanced in her April 15, 2015 

 5 Supra note 3. 
4

reconsideration request. She also contended that OWCP’s decision should be vacated because it 

was based on the false statements of N.S. as to what occurred on November 24, 2010 and that 

such statements interfered with appellant’s economic advantage and intentionally inflicted 

emotional distress. In addition, N.S. retaliated against him for filing complaints with his 

congressman, the employing establishment’s Office of Inspector General (OIG), and the Equal 

Employment Opportunity Commission (EEOC) alleging that she falsified employees’ time 

records, created a hostile work environment, and harassed and discriminated against him by 

controverting his claim in 2010. Counsel asserted that, in denying appellant’s claim on the 

merits, OWCP failed to consider the Board’s prior finding about the evidence that warranted 

remand of the case for further development as to whether he was in the performance of duty. 

Lastly, she asserted that its reliance on the statement of N.S. that appellant was not working at 

the time of injury was misplaced based on her lack of credibility and integrity. 

In an April 6, 2016 declaration, appellant provided a log of his work activities on 

November 24, 2010 from 7:00 a.m. to 7:09 p.m. He noted that he remained off work due to his 

serious injuries from November 26, 2010 to January 8, 2011. Appellant reiterated the allegations 

with regard to why he worked overtime on November 24, 2010, harassment and poor 

recordkeeping by N.S., the complaints he filed against her, and OWCP’s failure to follow the 

Board’s instructions and continued denial of his claim. He also submitted evidence previously of 

record. 

In a July 12, 2016 decision, OWCP denied merit review of appellant’s claim. It found 

that the evidence submitted in support of the reconsideration request was repetitious, cumulative, 

irrelevant, and immaterial. OWCP noted that appellant submitted no new relevant argument. 

LEGAL PRECEDENT 

Section 8128 of FECA vests OWCP with a discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.6 Section 10.608(b) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).7

 This section provides that the application for reconsideration must be submitted 

in writing and 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

 Section 10.608(b) provides that when a request for 

reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.9

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.608(a). 

8 Id. at § 10.606(b)(3). 

9 Id. at § 10.608(b). 
5

ANALYSIS 

On April 6, 2016 appellant requested reconsideration of OWCP’s August 5, 2015 

decision that denied modification of the denial of his traumatic injury claim. OWCP found that 

he was not in the performance of duty when he tripped and fell in a parking lot on 

November 24, 2010. The underlying issue on reconsideration is factual in nature, whether 

appellant met his burden of proof to establish that he was in the performance of duty at the time 

of his fall. 

The Board finds that appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law, nor did he advance a relevant legal argument not previously 

considered. In an April 6, 2016 request for reconsideration, counsel continued to assert that 

OWCP failed to apply the overtime provisions of FLSA to his case, the employing establishment 

failed to maintain accurate or adequate timekeeping records, that he had submitted sufficient 

evidence to establish a reasonable inference that he worked beyond his normal tour of duty on 

November 24, 2010, and that the employing establishment had not submitted any evidence to 

negate this inference. These contentions, however, were previously raised by appellant and 

addressed by OWCP in its August 5, 2015 decision. Evidence or argument that repeats or 

duplicates evidence previously of record has no evidentiary value and does not constitute a basis 

for reopening a case.10 Because these arguments have been previously considered, they were 

insufficient to require OWCP to conduct a merit review. 

Counsel’s arguments that N.S. lacked credibility and integrity due to false statements she 

made about the November 24, 2010 incident and that she was biased and retaliated against 

appellant for filing complaints with his congressman, the employing establishment’s OIG, and 

the EEOC are irrelevant to the underlying issue as they are either similar to prior assertions about 

N.S.’s character11 or do not relate to the events occurring on November 24, 2010. The 

submission of evidence which does not address the particular issue involved does not constitute a 

basis for reopening a case.12 Furthermore, appellant did not submit any pertinent new and 

relevant evidence to support his general allegations that N.S. was not forthcoming about the 

events occurring on November 24, 2010.13 

On reconsideration and on appeal, counsel asserts that, in denying appellant’s claim on 

the merits, OWCP failed to consider the Board’s prior finding about the evidence that warranted 

remand of the case for further development as to whether he was in the performance of duty. 

However, on remand, OWCP acted in accordance with the Board’s remand instructions and 

reviewed the merits of his case. It subsequently issued the April 17, 2014 decision again denying 

his claim. OWCP specifically noted the statements of J.H. and C.S. which served as a basis for 

 10 J.P., 58 ECAB 289 (2007). 

11 See id. 

12 See J.J., Docket No. 16-0555 (issued June 2, 2016); Edward Matthew Diekemper, 31 ECAB 224 (1979). 

13 See A.K., Docket No. 09-2032 (issued August 3, 2010) (appellant claimed that the employing establishment and 

his coworkers lied to him regarding the handling of his claim but appellant did not provide any evidence to support 

his contentions; the Board found that appellant’s assertions did not advance a previously unconsidered legal 

argument or show that OWCP erroneously applied or interpreted a specific point of law). 
6

the Board’s November 8, 2013 remand decision and found that this evidence was insufficient to 

establish that appellant was in the performance of duty on November 24, 2014. Consequently, 

the Board finds that appellant is not entitled to further review of the merits based on the first and 

second requirements under section 10.606(b)(3). 

Appellant also did not otherwise submit any relevant and pertinent new evidence with his 

April 6, 2016 request for reconsideration. His April 6, 2016 declaration noted a log of his work 

activities on November 24, 2010 from 7:00 a.m. to 7:09 p.m. and reiterated his contentions 

regarding harassment and poor recordkeeping by N.S., the complaints he filed against her, and 

OWCP’s failure to follow the Board’s instructions and continual denial of his claim. Appellant 

also submitted evidence previously of record. As stated, evidence or argument that repeats or 

duplicates evidence previously of record has no evidentiary value and does not constitute a basis 

for reopening a case.14 Likewise, the evidence he resubmitted was already of record and 

considered by OWCP in prior decisions and, thus, did not warrant further merit review.15 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). 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). 

 14 See supra note 10. 

15 Id.
7

ORDER 

IT IS HEREBY ORDERED THAT the July 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 15, 2017 

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