United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Costa Mesa, CA, Employer

__________________________________________

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Docket No. 18-1102

Issued: February 22, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 7, 2018 appellant filed a timely appeal from a March 2, 2018 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed 

from the last merit decision, dated May 15, 2017, 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 over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 2, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

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

FACTUAL HISTORY

On October 18, 2013 appellant, then a 53-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on October 2, 2013 she sustained a left foot injury while pushing 

a dolly while in the performance of duty. She noted that she felt something stretch and pain in her 

left foot/ankle while walking on the edge of cement and grass. Appellant did not stop work

following the injury, but worked a limited-duty position before later returning to full-duty work. 

OWCP accepted the claim for left foot sprain. 

In a December 20, 2013 report, Dr. Hosea Brown, III, a treating Board-certified internist, 

diagnosed left knee and ankle sprains, left knee internal derangement, left knee medial and lateral 

meniscal tears, and left ankle ligament tear, which he attributed to the October 2, 2013 work injury. 

He noted that appellant had related that the injury occurred when she attempted to stop a 20-pound 

tub of mail from falling off a dolly and she developed pain and discomfort in her left ankle and 

knee while trying to stabilize herself on the dolly. Dr. Brown opined that this awkward 

biomechanical maneuver of stabilizing herself and trying to stop mail from falling of the dolly 

caused increased stress to her left ankle and knee, resulting in injury. 

On January 10, 2014 appellant filed a claim for intermittent wage-loss compensation (Form 

CA-7) for the period December 31, 2013 to January 10, 2014. 

Dr. Brown, in a January 22, 2014 report reiterated appellant’s diagnoses and his opinion 

that these conditions were due to the awkward biomechanical maneuver she used in trying to 

stabilize herself while at the same time trying to prevent mail from falling off a dolly. 

OWCP referred appellant for a second opinion evaluation with Dr. Steven M. Ma, a Boardcertified orthopedic surgeon, on January 29, 2014. In a report dated February 20, 2014, Dr. Ma, 

based upon a review of the statement of accepted facts, medical records, and physical examination, 

diagnosed left knee sprain and left ankle sprain due to the October 2, 2013 work injury. He opined 

that, if diagnostic testing established ligament tears, they were unrelated to either her work duties 

or her October 2, 2013 work injury. Dr. Ma observed that appellant’s work injury was relatively 

minor and she had fully recovered as of November 19, 2013, based on medical records he 

reviewed. He further found that she sustained no aggravation of any condition and that she was 

capable of working full duty from December 31, 2013 to January 10, 2014. 

By decision dated April 1, 2014, OWCP denied appellant’s claim for wage loss from 

December 30, 2013 to March 21, 2014 and continuing due to the accepted left ankle sprain. 

By letter dated April 1, 2014, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits, finding that she no longer had any disability or residuals due 

to her accepted right ankle sprain. 
3

By decision dated May 23, 2014, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective May 23, 2014, finding that the weight of the medical opinion 

evidence rested with the report of the second opinion examiner, Dr. Ma, who concluded that there 

was no employment-related disability or residuals causally related to the October 2, 2013 work 

injury. It discounted Dr. Brown’s opinion as it found that his opinion was based on an inaccurate 

history of the injury and lacked sufficient medical rationale. 

By a form dated June 6, 2014 and postmarked June 9, 2014, appellant requested an oral 

hearing before an OWCP hearing representative, which was held on January 15, 2015. By 

decision dated April 21, 2015, the hearing representative found that OWCP had met its burden of 

proof to terminate her wage-loss compensation and medical benefits, effective May 23, 2014. 

On August 5, 2015 appellant requested reconsideration and submitted a July 21, 2015 

report from Dr. Brown in support of her request. 

In his July 21, 2015 report, Dr. Brown requested reversal of OWCP’s termination decision 

and requested that the acceptance of the claim be expanded to include left knee anterior cruciate 

ligament tear, medial anterior meniscal tear, and aggravation of left knee chondromalacia as 

causally related to the October 2, 2013 work injury. He referenced medical reports, diagnostic 

testing, and her description of the injury in support of the request. 

By decision dated August 26, 2015, OWCP denied modification of its prior decision, 

finding that the weight of the medical evidence rested with the report of the second opinion 

examiner, Dr. Ma, who concluded that there was no employment-related disability or residuals 

causally related to the October 2, 2013 work injury. It explained that the medical evidence 

submitted by appellant was insufficient to establish that she had any continuing disability or 

residuals due to her accepted left ankle sprain. OWCP further found the medical evidence 

insufficient to warrant expansion of the acceptance of her claim to include left knee anterior 

cruciate ligament tear, medial anterior meniscal tear, and aggravation of left knee chondromalacia 

as causally related to the October 2, 2013 work injury. 

OWCP received reports dated September 23, 2015 from Dr. Brown repeating his opinion 

and diagnoses from prior reports. In a letter dated February 15, 2016, appellant requested 

reconsideration. 

On February 14, 2017 appellant requested reconsideration and subsequently submitted a 

January 27, 2016 report from Dr. Brown, reiterating his opinion and diagnoses.

3

 

By decision dated May 10, 2016, OWCP denied modification of its prior decision, finding

Dr. Ma’s opinion continued to constitute the weight of the medical opinion evidence as it was well

rationalized. It found that Dr. Brown’s reports contained no rationale explaining why appellant 

continued to require medical treatment for her accepted injury. 

 

3 On February 18, 2016 appellant filed an appeal to the Board. On June 21, 2016 she requested that her appeal to 

the Board be dismissed. The Board granted appellant’s request on June 21, 2016. Order Dismissing Appeal, 

Docket No. 16-0646 (issued June 21, 2016). 
4

In progress reports dated May 11 and July 20, 2016, Dr. Brown provided examination 

findings and diagnosed left knee anterior cruciate ligament tear, medial anterior meniscal tear, left 

ankle tibiocalcaneal, calcaneofibular, and talofibular ligament tears, and left foot sprain. 

In an August 18, 2016 report, Dr. Stephen C. Wan, a treating podiatrist, provided 

examination findings and noted a history of left ankle and foot sprains. 

In reports dated August 30 and November 11, 2016, Dr. Charles Herring, a treating Boardcertified orthopedic surgeon, noted an injury date of October 2, 2013 and diagnosed left knee 

anterior cruciate ligament tear, chondromalacia, and medial anterior horn meniscal tear. In a 

September 27, 2016 letter, he opined that appellant sustained left knee and ankle conditions as the 

result of the traumatic October 2, 2013 employment injury. Dr. Herring opined that her preexisting 

degenerative condition had been permanently aggravated by the October 2, 2013 work injury. He 

disagreed with Dr. Ma on whether the injury caused a torn ligament. In support of his opinion,

Dr. Herring noted the lack of any history of a prior left knee injury and the fact that appellant 

continued to have positive joint effusion three years after the work injury. 

Dr. Wan, in September 22, 2016 report, provided examination findings and diagnosed 

chronic left ankle sprain involving the anterior distal syndesmotic ligament/distal anterior 

tibiofibular ligament. He reviewed Dr. Ma’s report and opined that Dr. Ma missed the mechanism 

of injury. 

Dr. Brown, in an October 26, 2016 report, provided examination findings and diagnosed 

chronic left ankle sprain, left ankle multiple ligament dysfunctions, left knee anterior cruciate 

ligament tear, left knee medial anterior horn meniscal tear, and left knee chondromalacia. He 

referenced treatment by Dr. Wan and Dr. Herring, including diagnoses from their reports. 

On January 25, 2017 Dr. Brown requested OWCP expand the acceptance of appellant’s 

claim to include the conditions of chronic left ankle sprain, left ankle multiple ligament 

dysfunctions, left knee anterior cruciate ligament tear, left knee medial anterior horn meniscal tear, 

and temporary aggravation of left knee chondromalacia as due to the October 2, 2013 work injury. 

He further disagreed with the termination of her medical benefits as she continued to require 

medical treatment for injuries sustained as the result of the October 2, 2013 work injury. 

Moreover, Dr. Brown claimed that there was an unresolved conflict in medical opinion between

Dr. Ma, serving as the second opinion physician, and himself regarding the necessity of future 

medical care. He reported that, in accordance with “FECA Guidelines,” OWCP should refer her

for a referee examination to resolve this conflict. 

By decision dated May 15, 2017, OWCP denied modification of its prior decision, as it 

found that the weight of the medical opinion evidence continued to rest with Dr. Ma’s wellrationalized opinion. It further found that the medical evidence appellant submitted was 

insufficiently rationalized to support her claim of continuing residuals or disability or to warrant 

expansion of her claim or to create a conflict with Dr. Ma’s opinion. 

On August 7, 2017 appellant requested reconsideration and submitted additional reports 

from Dr. Brown. 
5

Dr. Brown in a letter dated July 17, 2017, noted his disagreement with OWCP’s decision 

denying modification. He again opined that the medical evidence was sufficient to establish that 

the October 2, 2013 work injury caused additional conditions from which appellant had not 

recovered and which required further medical treatment. Dr. Brown also claimed that there was a 

conflict in medical opinion between Dr. Ma, serving as the second opinion physician, and her

treating physicians regarding the necessity of future medical care. He reiterated his request to refer 

appellant for a referee examination to resolve this conflict. 

In a July 17, 2017 progress report, Dr. Brown provided examination findings and diagnoses 

of chronic left ankle sprain, multiple left ankle ligament dysfunctions, temporary aggravation of 

left knee chondromalacia, left knee medial anterior meniscal tear, and left knee anterior cruciate 

ligament tear. 

By decision dated November 3, 2017, OWCP denied reconsideration of the merits of 

appellant’s claim as it found that the medical evidence submitted was cumulative and repetitious. 

In a letter dated February 5, 2018 appellant, through a representative, requested 

reconsideration contending that the weight of the medical opinion evidence rested with Dr. Brown, 

appellant’s treating physician or in the alterative that there was an unresolved conflict in the 

medical opinion evidence between Dr. Brown and Dr. Ma. Appellant also contended that her 

claim should be upgraded or expanded to include left ankle and knee conditions. No new evidence 

accompanied the reconsideration request. 

By decision dated March 2, 2018, OWCP denied reconsideration. It found that appellant 

failed to submit new and relevant evidence or argument in support of her claim. OWCP noted that 

argument regarding an unresolved conflict in the medical opinion evidence had been previously 

raised and considered. 

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

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.5 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant also must file his or her application 

for review within one year of the date of that decision.6 When a claimant fails to meet one of the 

 

4 5 U.S.C. § 8128(a). 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 20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).
6

above standards, OWCP will deny the application for review without reopening the case for a 

review on the merits.7

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.8 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set for at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.10

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

already of record does not constitute a basis for reopening a case. The Board has also held that the 

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

basis for reopening a case. While the reopening of a case may be predicated solely on a legal 

premise not previously considered, such reopening is not required where the legal contention does 

not have a reasonable color of validity.11

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

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

The Board finds that appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law. The representative argued that the weight of the medical opinion evidence 

rested with Dr. Brown, appellant’s treating physician or that in the alternative there was an 

unresolved conflict in the medical opinion evidence between Dr. Brown and Dr. Ma. He further

contended that OWCP erred in failing to expand acceptance of appellant’s claim to include 

additional conditions. These arguments were previously raised and considered by OWCP in its 

prior decisions. 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.12 As such, appellant is 

not entitled to a review of the merits of her claim based on the first and second above-noted 

requirements under 20 C.F.R. § 10.606(b)(3).

Appellant failed to submit any relevant and pertinent new evidence with the February 5, 

2018 request for reconsideration. Since issuing its November 3, 2017 nonmerit decision, OWCP 

did not receive any additional evidence relevant to whether she continued to have residuals and 

disability due to her accepted employment injury, or that her claim should be expanded to include 

 

7

Id. at § 10.608(b).

8

J.F., Docket No. 17-1508 (issued March 28, 2018).

9

Id.; see also Mark H. Dever, 53 ECAB 710 (2002).

10 Supra note 8; Annette Louise, 54 ECAB 783 (2003).

11 K.T., Docket No. 18-0193 (issued May 21, 2018); M.E., 58 ECAB 694 (2007).

12 See M.G., Docket No, 18-0654 (issued October 17, 2018); D.K., 59 ECAB 141 (2007).
7

additional medical conditions. Because appellant did not provide any relevant and pertinent new 

evidence, she is not entitled to a review of the merits based on the third requirement under 

section 10.606(b)(3).13

As appellant’s reconsideration request did not meet any of the three requirements 

enumerated under section 10.606(b)(3), the Board finds that OWCP properly denied the request 

for reconsideration without reopening the case for a review on the merits.14

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

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

ORDER

IT IS HEREBY ORDERED THAT the March 2, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 20 C.F.R. § 10.606(b)(3)(iii). See K.C., Docket No. 16-1526 (issued June 4, 2018).

14 C.F., Docket No. 18-0360 (issued July 19, 2018); R.C., Docket No. 17-0595 (issued September 7, 

2017); M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b), OWCP will deny the application for reconsideration without 

reopening the case for a review on the merits).