United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Albuquerque, NM, Employer 

__________________________________________ 

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Docket No. 17-1080 

Issued: July 18, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 24, 2017 appellant filed a timely appeal from an April 12, 2017 nonmerit 

decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days 

elapsed from OWCP’s last merit decision, dated September 22, 2016, 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 the claim. 

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 August 11, 2016 appellant, then a 51-year-old general expeditor, filed a traumatic 

injury claim (Form CA-1) alleging that on August 9, 2016 he sustained a right shoulder strain at 

 1

 5 U.S.C. § 8101 et seq. 
2

work. He asserted that he first felt pain in his right shoulder on August 9, 2016 after throwing 

parcels onto a moving belt for approximately 45 minutes. Appellant noted that he continued to 

throw parcels on that date, but favored his right arm and used his left arm more. He noticed 

continuing pain in his right arm later that same day and reported the injury to his supervisor. 

Appellant did not stop work, but he later began working in a modified-duty position.2

 

In an August 12, 2016 letter, a health and resource management specialist noted that the 

employing establishment was challenging appellant’s traumatic injury claim because he had not 

submitted any medical evidence establishing that he sustained a work-related injury on 

August 9, 2016. 

In an August 16, 2016 letter, OWCP requested that appellant submit additional factual 

and medical evidence in support of his claim. 

Appellant submitted an August 15, 2016 report from an attending physician assistant, 

Clara Weinrach who provided a diagnosis of infraspinatus sprain (ICD-9 code 840.3) and strain 

of unspecified muscle, fascia, and tendon at shoulder and upper arm level (ICD-9 code 

S46.911A). Ms. Weinrach indicated that appellant could return to work on August 16, 2016 with 

restrictions, including lifting up to 20 pounds occasionally, pushing/pulling up to 25 pounds 

occasionally, and no reaching above his shoulders. In another August 15, 2016 report, she noted 

that appellant reported hearing a pop in his right shoulder after throwing mail parcels at work on 

August 11, 2016. In a narrative report and a work activity status report dated August 26, 2016, 

Ms. Weinrach indicated that appellant could return to regular duty on that date. 

Appellant also submitted August 22 and 24, 2016 reports from his attending physical 

therapist who described the results of his periodic physical therapy sessions. 

In a September 22, 2016 decision, OWCP denied appellant’s claim for an August 9, 2016 

work injury. It accepted that appellant established that a work incident occurred on August 9, 

2016 in the form of throwing parcels onto a moving belt, but found that he failed to submit 

probative medical evidence establishing a causal relationship between the accepted work 

incident and a diagnosed medical condition. OWCP noted that appellant did not submit 

probative medical evidence because he did not submit a report from a physician within the 

meaning of FECA. 

In a letter dated February 7, 2017 and received on February 15, 2007, appellant requested 

reconsideration of OWCP’s September 22, 2016 decision. 

In support of his reconsideration request, appellant submitted copies of August 15 and 26, 

2016 reports from his attending physician assistant, Ms. Weinrach, and August 22 and 24, 2016 

reports from his attending physical therapist, Tomas R. Romero, which he previously submitted 

to OWCP. 

 2

 In an August 9, 2016 handwritten statement, appellant provided a similar account of his claimed August 9, 2016 

work injury. 
3

In an April 12, 2017 decision, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that the evidence submitted by 

appellant in support of his February 15, 2017 reconsideration request was repetitious and 

irrelevant to the main issue of the present case. OWCP indicated that the reports submitted by 

appellant, consisting of previously submitted reports of a physician assistant and physical 

therapist, did not constitute probative medical evidence of a physician within the meaning of 

FECA. Therefore, the reports were not relevant to the question of whether appellant submitted 

sufficient medical evidence in support of his claim for an August 9, 2016 work injury. 

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.3

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 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.5

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

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.6 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.7

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

duplicates evidence or argument already in the case record8 and the submission of evidence or 

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

reopening a case.9

 While a 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.10 

 3

 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/her] own motion or on application.” 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 

5 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. 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(a), (b). 

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

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

10 John F. Critz, 44 ECAB 788, 794 (1993). 
4

ANALYSIS -- ISSUE 2 

OWCP issued a merit decision on September 22, 2016 denying appellant’s claim for an 

August 9, 2016 work injury. Appellant requested reconsideration of this decision in a letter 

received by OWCP on February 15, 2017. 

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, appellant did not show that OWCP erroneously 

applied or interpreted a specific point of law. He 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 is whether appellant met his burden of proof to establish 

an August 9, 2016 injury due to the accepted work incident of throwing parcels on that date. 

This is a medical issue which must be addressed by probative and relevant medical evidence.11 

A claimant may be entitled to a merit review by submitting relevant and pertinent new evidence, 

but the Board finds that appellant did not submit any such evidence in this case.12

In support of his reconsideration request, appellant submitted copies of August 15 and 26, 

2016 reports from his attending physician assistant, Ms. Weinrach, and August 22 and 24, 2016 

reports from his attending physical therapist, Mr. Romero, which had been previously submitted 

to OWCP and rejected as insufficient to establish his claim for an August 9, 2016 work injury. 

As noted above, the Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record does not constitute a basis for reopening 

a case.13 Moreover, this evidence is not relevant to the main issue of the case, i.e., whether 

appellant submitted medical evidence establishing an August 9, 2016 work injury, because it does 

not constitute probative medical evidence from a physician within the meaning of FECA.14 

Under FECA, the report of a nonphysician, including a physician assistant, does not constitute 

probative medical evidence.15 Physical therapists are not physicians under FECA and therefore 

their opinions do not constitute medical opinion evidence and have no weight or probative value 

on medical matters.16

 11 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

12 See supra note 6. 

13 See supra note 9. 

14 See id. 

15 R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-829 (issued August 20, 2013). See

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

16 C.E., Docket No. 14-710 (issued August 11, 2014); Jane A. White, 34 ECAB 515 (1983). 
5

The Board accordingly finds that appellant did not meet 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.17

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). 

ORDER 

IT IS HEREBY ORDERED THAT the April 12, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 18, 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 

 17 On appeal appellant asserts that he sustained an injury at work. However, the merits of his case are not 

currently before the Board and, for the reasons explained above, OWCP properly denied his request for 

reconsideration of the merits of his claim.