United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0684

Issued: October 18, 2018

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 February 9, 2018 appellant filed a timely appeal from a December 21, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

elapsed from the last merit decision, dated June 30, 2017, 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 to review the merits of this case.

3

 

1 Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). In an order dated 

July 9, 2018, the Board, after exercising its discretion, denied the request as her arguments on appeal could be 

adequately addressed in a decision based on a review of the case as submitted on the record. Order Denying Request 

for Oral Argument, Docket No. 18-0684 (issued July 9, 2018).

2 5 U.S.C. § 8101 et seq.

3 On appeal, appellant has submitted medical evidence which was not before OWCP at the time it issued its 

February 9, 2018 decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of 

its final decision. Therefore, the Board is precluded from considering this new evidence for the first time on appeal. 

20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
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 March 21, 2017 appellant, then a 49-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging pain in her left shoulder and low back due to her federal employment duties. 

Specifically, she noted that the duties of her federal employment included pulling and pushing 

postal carts and hampers, lifting mail, and repetitive pulling of mail out of trays. Appellant noted 

that she had worked for the employing establishment for almost 19 years. She did not stop work. 

In support of her claim, appellant submitted multiple diagnostic studies. A July 29, 2016 

magnetic resonance imaging (MRI) scan of her left shoulder was interpreted by Dr. Jose Irizarry, 

a Board-certified radiologist, as showing diffuse tendinosis of the rotator cuff with small interstitial 

partial tear of the supraspinatus tendon. A July 30, 2016 MRI scan of appellant’s lumbar spine 

was interpreted by Dr. Jeffrey Spreitzer, a Board-certified radiologist, as showing no spinal 

stenosis, mild spondylosis with bulging disc and neural foraminal narrowing, and multilevel facet 

hypertrophic changes. A May 27, 2017 MRI scan of appellant’s lumbar spine was interpreted by

Dr. Gregory Goldstein, a Board-certified radiologist, as showing 2 millimeter annual bulging at 

L4-5 and L5-S1, and lumbar spondylosis and loss of the normal lumbar lordosis. 

In a March 27, 2017 report, Dr. Rao P. Ligam, Board-certified in anesthesiology and pain 

medicine, related that appellant presented with a chief complaint of neck pain. He diagnosed 

cervical ligaments sprain. Dr. Ligam recommended continuation of conservative treatment. 

Appellant submitted progress reports dated from July 5, 2016 through May 27, 2017, from

Dr. Orin Hall, Board-certified in occupational medicine. Dr. Hall noted that appellant was being 

seen for her low back pain and left shoulder pain from an employment-related injury. He

diagnosed impingement syndrome of the left shoulder, lumbosacral spondylosis with 

radiculopathy, and strain of the muscles and tendons of the rotator cuff of the left shoulder. 

Appellant was treated on March 28, 2017 by Dr. Mark A. Denny, a physician Boardcertified in emergency medicine, who diagnosed “[a]cute on chronic back pain.” She was treated 

on March 29, 2017 by Dr. Ryan Douglas Squier, a physician Board-certified in emergency 

medicine, who stated that she complained of neck pain which radiated down the back and shoulder 

blades. Dr. Squier noted that appellant had a history of a neck injury in 1998, but that he denied 

any current injury. He diagnosed acute on chronic neck pain. A computerized tomography scan

taken at the hospital on that date was interpreted by Dr. Jason Hilton Fox, a Board-certified 

radiologist, as showing no acute abnormality of the cervical spine. Specifically, he noted no 

evidence of acute cervical spine fracture, normal alignment of the cervical spine, no significant 

degenerative changes, and the prevertebral soft tissues were unremarkable. 

By decision dated June 30, 2017, OWCP denied appellant’s claim. It found that the

evidence of record was insufficient to establish that appellant’s impingement syndrome of the left 

shoulder, lumbosacral spondylosis with radiculopathy, and strain of muscle and tendons of the 
3

rotator cuff of the left shoulder were causally related to the accepted factors of her federal 

employment. 

On October 20, 2017 appellant requested reconsideration. In support of her 

reconsideration request, she submitted reports from Dr. Hall dated July 19 and October 11, 2017.

In these reports Dr. Hall restated his medical diagnoses of impingement syndrome of the left 

shoulder, lumbosacral spondylosis with radiculopathy, and strain of muscles and tendons of the 

rotator cuff of the left shoulder. Appellant also resubmitted a May 30, 2017 report from

Dr. Goldstein. In addition, she submitted her own supplemental statement, detailing her duties at 

the employing establishment. Appellant alleged the repetitive motion, lifting, pushing, pulling, 

simple grasping, and reaching she did in the performance of her federal duties caused her injuries. 

By decision dated December 21, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a) finding that the evidence 

was substantially similar to evidence previously submitted and reviewed in the June 30, 2017 

decision. It concluded, therefore, that the evidence was insufficient to warrant further merit 

review.

LEGAL PRECEDENT

Section 8128 of FECA vests OWCP with 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.4 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).5 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.6 Section 10.608(b) provides that, when a request for reconsideration is 

timely, but fails to meet at least one of these requirements, OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.7

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). 

As appellant’s request for reconsideration did not allege that OWCP erroneously applied 

or interpreted a specific point of law or advance a legal argument not previously considered by 

 

4 5 U.S.C. § 8128(a). 

5 20 C.F.R. § 10.608(a).

6

Id. at § 10.605(b)(3). 

7

Id. at § 10.608(b).
4

OWCP, it did not warrant a review of the merits of her claim based on the first and second 

requirements under section 10.606(b)(3).8

Furthermore, appellant has not submitted relevant and pertinent new evidence not 

previously considered by OWCP. The underlying issue in this case is whether the accepted factors

of her employment caused her diagnosed medical conditions. 

Appellant’s lay opinion essentially detailing her employment duties and offering her 

opinion regarding causal relationship is not relevant to the issue in this case, which is medical in 

nature, and which can only be resolved through the submission of probative medical evidence from 

a physician.

9

 Therefore, her lay opinion is insufficient to require OWCP to reopen the claim for 

further consideration of the merits.10

The May 30, 2017 report from Dr. Goldstein was already considered by OWCP in its 

June 30, 2017 decision. As this report is duplicative it does not constitute relevant and pertinent 

new evidence.11 Appellant also submitted new reports from Dr. Hall. However, these reports 

merely repeat findings already of record and are therefore cumulative. Cumulative evidence does 

not constitute relevant and pertinent new evidence.12 

The Board finds that OWCP properly determined that appellant was not entitled to further 

review of the merits of her claim pursuant to any of the three requirements under section 

10.606(b)(3). Thus, OWCP properly denied her request for reconsideration. 

On appeal, appellant discusses the medical evidence and alleges that it supports her case. 

However, as stated previously, the Board does not have jurisdiction over the merits of the claim.13 

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). 

 

8 See S.M., Docket No. 17-1899 (issued August 3, 2018). 

9 See G.C., Docket No. 18-0506 (issued August 15, 2018). 

10 Id.

11 D.P., Docket No. 17-0450 (issued June 20, 2018).

12 Id.

13 I.B., Docket No. 18-0145 (issued June 1, 2018). 
5

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated December 21, 2017 is affirmed.

Issued: October 18, 2018

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