United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Derry, NH, Employer 

__________________________________________ 

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Docket No. 17-0074 

Issued: March 17, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 17, 2016 appellant filed a timely appeal from May 11 and September 16, 

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

than 180 days elapsed from the last merit decision of OWCP dated December 1, 2015, 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 this case. 

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). 

On appeal, appellant contends that his attending physician provided adequate rationale to 

support that his work duties as a rural letter carrier contributed to his bilateral osteoarthritis and 

need for surgery. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 31, 2015 appellant, then a 62-year-old rural letter carrier, filed an 

occupational disease claim (Form CA-2) alleging that he sustained right and left hip injuries 

caused or aggravated by his federal employment. He first became aware of his injuries on 

October 3, 2011 and realized their relationship to his work on April 14, 2015. In an 

accompanying narrative statement dated August 27, 2015, appellant provided a detailed 

description of his rural letter carrier work duties and listed sports activities he participated in 

during his formative years and as an adult. In October of 2011, he developed pain in his left 

knee area which he associated with his 2007 medial meniscus surgery. 

Following an appointment regarding appellant’s knee problem and x-rays Dr. John T. 

Lynn, II, a Board-certified orthopedic surgeon, informed appellant that his hips were causing his 

condition. In October 2011, appellant received a cortisone shot in his left hip. He related that it 

was not until December 15, 2014 diagnostic testing results, and appointments and consultations 

with Dr. Dennis G. Rork, a Board-certified family practitioner, and Dr. Akhilesh Sastry, a Boardcertified orthopedic surgeon, that he became aware of the need for hip replacements. Appellant 

contended that he and Dr. Sastry believed that his work duties contributed to the development of 

his bilateral hip osteoarthritis and need for hip replacements. 

In a June 24, 2015 medical report, Dr. Sastry noted that appellant was referred to him for 

treatment of bilateral hip pain. He examined appellant and diagnosed advanced osteoarthritis. 

Dr. Sastry recommended hip replacements since nonoperative treatments had been ineffective in 

controlling appellant’s pain. Appellant related to him that he worked 37 years as a rural postal 

carrier for the employing establishment. His work duties included repeated heavy lifting, 

twisting, turning, stretching, bending, squatting, repetitive motions, high-impact activities, 

sedentary positions for long periods of time, and ascending and descending movements of the 

hips. Dr. Sastry opined that these activities contributed to the development of appellant’s 

bilateral hip osteoarthritis and need for hip replacement surgery. 

By letter dated September 22, 2015, OWCP advised appellant of the deficiencies of his 

claim and afforded him 30 days to submit additional evidence and respond to its inquiries. 

In an October 3, 2011 report, Dr. Lynn noted appellant’s complaint of left greater than 

right hip pain. He reviewed x-rays and diagnosed progressive arthritic change in the bilateral 

hips, left side worse. On November 7, 2011 Dr. Lynn reported a diagnosis of bilateral hip 

degenerative joint disease. He noted that appellant had received an intra-articular injection in the 

left hip which resulted in no pain in the hip. 

An October 12, 2011 report from Lawrence O’Malley, a physician assistant, indicated 

that appellant received an intra-articular steroid injection in the left hip. 

In reports dated February 1, 2012 to April 22, 2014, Dr. Jeffrey W. Wiley, an orthopedic 

surgeon, noted appellant’s diagnosis of bilateral hip osteoarthritis, left greater than the right. He 

also noted appellant’s history of difficulties with his left hip, more than the right hip. Dr. Wiley 

reported findings on physical and x-ray examination. He provided an assessment that he was 
3

coping well with symptomatic management of the diagnosed condition. Dr. Wiley maintained 

that appellant would likely benefit from hip arthroplasty. 

A left hip magnetic resonance imaging (MRI) scan report, obtained on December 15, 

2014 by Dr. William Sherman, Jr. a Board-certified radiologist, provided an impression of 

moderate osteoarthritis. Dr. Sherman also provided an impression of a small zone of bone 

marrow edema associated with a subchondral cyst in the posterior aspect of the left femoral head. 

The areas of bone marrow edema were lessor in degree than in the contralateral right hip. There 

was also underlying labial degeneration. In a right hip MRI scan report dated December 15, 

2014, Dr. Sherman provided an impression of moderate degenerative changes with associated 

reactive or degenerative zones of bone marrow edema. There was also a degenerative appearing 

tear of the acetabulum labrum. 

In a December 1, 2015 decision, OWCP denied appellant’s occupational disease claim, 

finding that the medical evidence of record did not contain a rationalized medical opinion as to 

why his diagnosed condition was caused or aggravated by the established work factors and not 

by his sports activities. 

In an appeal request form and letter received February 17, 2016, appellant, through his 

representative, requested reconsideration. The representative contended that appellant’s 

accompanying statement clarified his outside activities. He also cited Board precedent and 

contended that it was unnecessary for the employment injury alone to have caused a condition. 

The representative noted that, if an employment factor contributed in any way to appellant’s 

condition, such condition would be considered employment related for purposes of compensation 

under FECA. 

In a February 11, 2016 statement, appellant noted that he had not participated in sports 

activities in over 40 years. He also noted that he had not run at any level in 10 years. Appellant 

maintained that he never had any injuries to his hips or sought medical treatment for them due to 

his outside activities. 

Appellant resubmitted Dr. Wiley’s April 22, 2014 report. He also submitted a 

November 26, 2007 report from Dr. Lynn who noted appellant’s history of a left knee injury and 

surgery and a right groin injury. Dr. Lynn reported findings on physical examination and 

diagnosed status post arthroscopic partial medial meniscectomy and probable right adductor 

strain. On February 22, 2010 he noted appellant’s chief complaint of left greater than right knee 

pain and right groin pain. Dr. Lynn provided findings on physical and x-ray examination and 

diagnosed arthritic change in the hips and knees left greater than right, old right hip adductor 

tendinitis strain, and probable left hamstring tendinitis. 

In reports dated April 14 and August 25, 2015, Dr. Sastry noted appellant’s complaint of 

bilateral hip pain and history of his medical, family, and social background. He provided 

findings on physical examination and reiterated his impression of bilateral hip osteoarthritis and 

recommendation for hip replacements. Dr. Sastry noted that appellant had developed advanced 

osteoarthritis in both hips and his right side symptoms were greater than his left side. He related 

that certainly being a postman for 30 plus years could have contributed to the advancement of 

arthritis. In a letter dated February 9, 2016, Dr. Sastry reviewed reports from Drs. Wiley, Lynn, 
4

and Rork. He restated appellant’s work duties and his opinion that these activities caused or 

contributed to appellant’s bilateral hip osteoarthritis and need for surgery. 

By decision dated May 11, 2016, OWCP denied further merit review of appellant’s claim 

as the evidence submitted was cumulative or irrelevant and did not advance a relevant legal 

argument not previously considered or demonstrate legal error by OWCP. 

In an appeal request form and letters received on July 13 and 25, 2016, appellant’s 

representative requested reconsideration of the December 1, 2015 decision and submitted 

medical evidence. In a June 28, 2016 report, Dr. Sastry noted that osteoarthritis, often called 

“wear and tear arthritis,” had occurred in this case in both hips after years of use. It resulted in 

deterioration of the cartilage that normally acted as a cushion between the bones that came 

together within hip joints where the top of the femur (ball) came together with the acetabulum 

(socket). Dr. Sastry related that, when the cartilage became worn at this juncture, the bones 

came into direct contact which caused pain due to the deterioration that had occurred. He 

restated that appellant had advanced osteoarthritis of the hips. Dr. Sastry noted his previous 

description of appellant’s rural mail carrier work duties and maintained that there was no 

question these activities which appellant had performed for 37 years contributed to the diagnosis 

and need for hip replacement surgery. As he stated in his previous reports, he was aware of 

appellant’s outside activities and still opined unequivocally that the noted physical requirements 

of appellant’s job contributed to his diagnosis and need for surgery. 

By decision dated September 16, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of the claim. It found that Dr. Sastry’s June 28, 2016 report was 

cumulative in nature and substantially similar to evidence previously reviewed. 

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.2 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).3

 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.4 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.5

 2 Id. at § 8128(a). 

3

 20 C.F.R. § 10.608(a). 

4 Id. at § 10.606(b)(3). 

5 Id. at § 10.608(b). 
5

ANALYSIS 

OWCP issued a December 1, 2015 decision denying appellant’s occupational disease 

claim finding that the medical evidence of record did not contain a rationalized medical opinion 

explaining the causal relationship between the established employment factors and his diagnosed 

medical condition. On February 16 and July 13 and 25, 2016 appellant requested reconsideration 

of this decision. OWCP declined his requests for reconsideration in May 11 and 

September 16, 2016 nonmerit decisions. 

The Board does not have jurisdiction over the December 1, 2015 merit decision and can 

consider only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which 

would prompt OWCP to reopen the case for merit review. The underlying issue on 

reconsideration is medical in nature, whether the medical evidence establishes a causal 

relationship between his bilateral hip condition and established employment factors. 

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

interpreted a specific point of law. Moreover, appellant did not advance a relevant legal 

argument not previously considered. In the February 16, 2016 request for reconsideration, 

appellant’s representative submitted a statement from appellant and contended that it clarified his 

outside activities. He also cited Board precedent on causal relationship and contribution. The 

Board finds that these assertions do not show a legal error by OWCP or constitute new and 

relevant legal argument. The Board notes that appellant did not make any assertions in support 

of his July 13 and 25, 2016 requests for reconsideration. The Board therefore finds that 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 Board further finds that appellant did not submit relevant or pertinent new evidence 

not previously considered in support of his February 16, 2016 request for reconsideration. 

Dr. Sastry’s April 4 and August 25, 2015 reports reiterated that appellant had advanced bilateral 

hip osteoarthritis due to his rural letter carrier work duties as discussed in his prior June 24, 2015 

report. Dr. Wiley’s April 22, 2014 report was previously reviewed by OWCP in its December 1, 

2015 decision. Evidence that repeats or duplicates evidence already in the case record has no 

evidentiary value and does not constitute a basis for reopening a case.6

 

Dr. Lynn’s November 26, 2007 and February 22, 2010 reports found that appellant was 

status post arthroscopic partial medial meniscectomy and had arthritic change in the hips and 

knees left greater than right, old right hip adductor tendinitis strain, and probable left hamstring 

tendinitis. He did not provide an opinion as to whether the diagnosed conditions were caused or 

aggravated by the established employment factors. The Board has held that the submission of 

evidence which does not address the particular issue involved in the case does not constitute a 

basis for reopening the claim.7

 

 6 James W. Scott, 55 ECAB 606 (2004). 

7 D’Wayne Avila, 57 ECAB 642 (2006). 
6

The Board finds, therefore, that these reports of Drs. Sastry, Wiley, and Lynn are 

insufficient to warrant further merit review of the claim. The Board accordingly finds that 

appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3) in his February 16, 

2016 request for reconsideration. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit 

review. 

The Board finds, however, that appellant submitted relevant and pertinent new evidence 

not previously considered by OWCP in support of his July 13 and 25, 2016 requests for 

reconsideration. Appellant submitted a June 28, 2016 report from Dr. Sastry who opined that the 

established work duties contributed to appellant’s advanced bilateral hip osteoarthritis and need 

for hip replacements. Dr. Sastry explained that years of use of appellant’s hips while performing 

his rural mail carrier duties resulted in deterioration of the cartilage that normally acted as a 

cushion between the bones that came together within hip joints where the top of the femur ball 

came together with the acetabulum socket. He further explained that, when the cartilage became 

worn at this juncture, the bones came into direct contact, which caused pain due to the 

deterioration that had occurred. Although this evidence reiterated Dr. Sastry’s June 24, 2015 

opinion on causal relationship, his June 28, 2016 report provided greater medical rationale or 

reasoning, lacking in his previous reports, in support of his conclusion on causal relationship. 

This rationale directly addresses OWCP’s previous finding that the medical evidence did not 

explain how the established work factors caused or aggravated appellant’s current condition and, 

thus, is relevant to the issue of whether OWCP properly denied his claim for compensation. 

The Board finds that Dr. Sastry’s June 28, 2016 report constitutes relevant and pertinent 

new evidence not previously considered by OWCP and is sufficient to require OWCP to reopen 

appellant’s claim for consideration of the merits.8

 Reopening a claim for merit review does not 

require a claimant to submit all evidence which may be necessary to discharge his burden of 

proof.9

 If OWCP should determine that the new evidence submitted lacks probative value, it 

may deny modification of the prior decision, but only after the case has been reviewed on the 

merits.10 On remand it shall conduct a merit review of the entire record. After such further 

development as is deemed necessary, OWCP shall issue an appropriate merit decision. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s February 17, 2016 request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). The Board finds, 

however, that OWCP abused its discretion by denying his July 13 and 25, 2016 requests for 

reconsideration pursuant to 5 U.S.C. § 8128(a). 

 8

 5 U.S.C. § 10.606(b)(3). 

9 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988). 

10 See Dennis J. Lasanen, 41 ECAB 933 (1990). 
7

ORDER 

IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board. The decision dated May 11, 2016 is affirmed. 

Issued: March 17, 2017 

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