United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0041 

Issued: January 6, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 14, 2016 appellant filed a timely appeal from the May 5 and August 29, 2016 

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

180 days elapsed from the date of the last merit decision, September 1, 2015, to the filing of this 

appeal and, 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 the claim.2

ISSUE 

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

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The record of evidence provided the Board includes evidence submitted after OWCP issued its August 29, 2016 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On April 3, 2013 appellant, then a 37-year-old letter carrier (city), filed a traumatic injury 

claim (Form CA-1) for injuries to her neck and lower back, which she attributed to a January 22, 

2013 employment-related motor vehicle accident. OWCP accepted her claim for temporary 

aggravation of cervical and lumbar disc disorder with myelopathy and temporary aggravation of 

cervical and lumbar/lumbosacral intervertebral disc degeneration. Appellant received 

continuation of pay and compensation for intermittent wage loss beginning March 12, 2013. 

Beginning September 17, 2013, appellant worked modified duty as a lobby host. On 

January 3, 2014 the employing establishment offered her work as a modified carrier, which she 

accepted. The job offer was based on the November 13, 2013 work restrictions imposed by 

appellant’s treating physician, Dr. Hosea Brown, III, a Board-certified internist. In a January 8, 

2014 duty status report (Form CA-17), Dr. Brown extended the previous work restrictions. In an 

accompanying narrative report, he noted that appellant had been advised to continue working 

within her restrictions. 

On January 17, 2014 Dr. Serge Obukhoff, a Board-certified neurosurgeon, examined 

appellant and diagnosed L5-S1 lumbar disc herniation. He recommended an L5-S1 arthroplasty 

with decompression. Dr. Obukhoff also noted that appellant was able to perform modified duty 

in accordance with her treating physician’s Form CA-17. In a February 28, 2014 follow-up 

evaluation, he reiterated his prior diagnosis and recommendation for surgical intervention. 

Dr. Obukhoff also noted that appellant was capable of performing modified duty in accordance 

with her treating physician’s restrictions as set forth on the Form CA-17. 

On March 5, 2014 Dr. Brown extended appellant’s previous work restrictions. However, 

in an April 15, 2014 duty status report (Form CA-17), he indicated that appellant was 

temporarily totally disabled through July 15, 2014. In a separate narrative report, Dr. Brown 

indicated that appellant was medically excused from work beginning April 10, 2014 due to 

severe low back instability and pain. He also noted that Dr. Obukhoff recommended surgery, 

which was scheduled for June 2014. 

Beginning in April 2014, appellant filed a series of claims for compensation CA-7 forms 

covering the period January 13 through June 9, 2014. She claimed intermittent wage loss, as 

well as temporary total disability from January 13 through 24, 2014 and April 21 through 

June 9, 2014. 

By letter dated May 9, 2014, OWCP advised appellant that it had authorized payment for 

certain claimed medical appointments, but other appointments were not substantiated. 

Additionally, it advised that appellant had not established total disability for the claimed 

period(s). OWCP noted that the employing establishment had provided ongoing light/limitedduty work as of January 3, 2014, and it was unclear why appellant could not perform the work 

provided which was within her restrictions. It afforded appellant 30 days to submit additional 

evidence in support of her claim for wage-loss compensation. 
3

On June 10, 2014 appellant underwent an OWCP-approved L5-S1 discectomy and fusion 

performed by Dr. Obukhoff.3 OWCP paid wage-loss compensation for temporary total disability 

beginning June 10, 2014, and placed her on the periodic compensation rolls effective 

October 19, 2014. 

By decision dated February 4, 2015, OWCP granted 13.52 hours of intermittent wageloss compensation, but denied compensation for temporary total disability for the periods 

January 13 through 24, 2014 and April 11 through June 9, 2014. 

On June 3, 2015 appellant requested reconsideration of OWCP’s February 4, 2015 

decision. She submitted an April 20, 2015 report from Dr. Brown. Dr. Brown referenced his 

earlier reports dated January 8 and April 15, 2014, and indicated that these reports justified 

compensation for the periods January 13 through 24, 2014 and April 11 through June 9, 2014. 

On June 9, 2015 OWCP referred appellant to Dr. Michael J. Einbund, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine the nature and extent of her 

accepted conditions. In his July 17, 2015 report, Dr. Einbund diagnosed mild cervical spine 

strain and status postoperative anterior fusion at L5-S1. He determined that appellant had not yet 

reached maximum medical improvement and opined that she had been temporarily totally 

disabled since undergoing surgery on June 10, 2014. Dr. Einbund advised that appellant was 

currently able to return to modified duty with the following lumbar-related restrictions: no 

lifting over 10 pounds; no repetitive bending or stooping more than two hours per eight-hour 

workday. He did not specifically address any periods of claimed disability prior to appellant’s 

June 10, 2014 surgery. 

By decision dated September 1, 2015, OWCP vacated in part and affirmed in part its 

prior February 4, 2015 decision. Based on Dr. Brown’s April 20, 2015 report, it awarded wageloss compensation for temporary total disability for the period April 15 through June 9, 2014. 

However, OWCP affirmed its prior finding that the medical evidence of record was insufficient 

to establish appellant’s claimed disability for the periods January 13 through 24, 2014 and 

April 11 through 14, 2014. 

On February 2, 2016 appellant requested reconsideration. She submitted a November 3, 

2015 report from Dr. Brown who opined that appellant was totally disabled for work during the 

period April 11 to 14, 2014 based on his “medical re-evaluation dated April 15, 2014.” 

Dr. Brown indicated that on April 15, 2014 appellant informed him that she was unable to work 

as a result of severe low back instability and increasing radicular symptomatology. He further 

indicated that she had a positive straight leg raising test and her lumbar spine range of motion 

was severely restricted with severe spasm of the paraspinal lumbosacral musculature. 

By decision dated May 5, 2016, OWCP denied appellant’s request for reconsideration 

without a merit review finding that Dr. Brown’s November 3, 2015 report was repetitious and 

did not constitute relevant and pertinent new evidence. 

 3

 Dr. Joseph Vanderlinden, a vascular surgeon, assisted on the June 10, 2014 surgical procedure. 
4

On August 25, 2016 appellant again requested reconsideration and submitted an 

August 5, 2016 report from Dr. James T. Tran, a Board-certified neurosurgeon, who reviewed 

the medical evidence of record and diagnosed painful lumbar radiculopathy and history of L5-S1 

disc arthroplasty on June 10, 2014. Dr. Tran observed that on January 8, 2014 Dr. Brown had 

noted that appellant had significant pain and discomfort in the lower back and was unable to 

cooperate with the straight leg raise test portion of the examination. He concluded that appellant 

took time off work from January 13 to 24, 2014 because of excruciating back and leg pain with 

foot numbness and weakness that she could not tolerate. Dr. Tran further observed that in a 

February 28, 2014 report Dr. Obukhoff had noted that appellant had low back pain and severe 

persistent right leg radiculopathy. He concluded that appellant had to take time off work from 

April 11 to 14, 2014 because she had progressive radicular symptoms due to work activities and 

was unable to continue working as a result of severe low back instability and increasing radicular 

symptoms. 

By decision dated August 29, 2016, OWCP denied appellant’s request for reconsideration 

without conducting a merit review finding that Dr. Tran’s August 5, 2016 report was cumulative 

and did not constitute relevant and pertinent new evidence. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.4

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5

 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.6 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.7

 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.8

 4

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

5

 20 C.F.R. § 10.607. 

6 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. 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.608(a), (b). 
5

ANALYSIS 

On February 2, 2016 appellant submitted the appeal request form that accompanied 

OWCP’s September 1, 2015 decision. She requested reconsideration, but did not otherwise 

elaborate. Appellant’s February 2, 2016 request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Additionally, she did not advance a relevant legal argument not previously considered by 

OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based 

on the first and second above-noted requirements under section 10.606(b)(3). 

Appellant also failed to submit relevant and pertinent new evidence not previously 

considered by OWCP. Dr. Brown’s November 3, 2015 report reiterated statements made in his 

report dated April 15, 2014 and is, therefore, cumulative and duplicative in nature.9 The Board 

finds that this report does not constitute relevant and pertinent new evidence not previously 

considered by OWCP.10 Therefore, OWCP properly determined that this evidence did not 

constitute a basis for reopening the case for a merit review. 

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) and properly denied her February 2, 2016 request for reconsideration. 

With respect to appellant’s August 25, 2016 request for reconsideration, she neither 

alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Additionally, she did not advance a relevant legal argument not previously considered by 

OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based 

on the first and second above-noted requirements under section 10.606(b)(3). 

Appellant also failed to submit relevant and pertinent new evidence not previously 

considered by OWCP. Dr. Tran’s August 5, 2016 report was new, but irrelevant as it contained 

no new, independent medical opinion and was comprised of his support for adoption of the 

medical opinions already considered and rejected by OWCP.11 The Board finds that this report 

does not constitute relevant and pertinent new evidence not previously considered by OWCP.12 

Therefore, OWCP properly determined that this evidence did not constitute a basis for reopening 

the case for a merit review. 

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) and properly denied her August 25, 2016 request for reconsideration. 

 9

 Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000). 

10 Id. 

11 See K.C., Docket No. 12-32 (issued October 9, 2012). 

12 Id. 
6

CONCLUSION 

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

the merits of its May 5 and August 29, 2016 decisions pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the August 29 and May 5, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: January 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board