United States Department of Labor

Employees’ Compensation Appeals Board

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T.P. (f/k/a T.S.), Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

St. Paul, MN, Employer

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Docket No. 18-0774

Issued: November 7, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 February 28, 2018 appellant, through counsel, filed a timely appeal from a 

November 24, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days has elapsed from the last merit decision, dated January 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 over the merits of the case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
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 August 24, 2016 appellant, then a 57-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed osteoarthritis in her right thumb and index 

finger due to her federal employment duties. She did not stop work. Appellant’s supervisor 

reported that appellant was performing light-duty work four hours a day.

In a development letter dated November 29, 2016, OWCP requested additional factual and 

medical information from appellant in support of her occupational disease claim. It also provided 

a questionnaire for her to complete regarding the factual elements of her claim. OWCP afforded 

appellant 30 days for a response.

Appellant provided a report dated June 21, 2015 from Dr. Edward T. Su, a Board-certified 

orthopedic surgeon, noting that he first examined her on June 24, 2011 and describing her medical 

treatment. She underwent left thumb arthroplasty on March 30, 2012. Appellant reported a 

worsening of her right thumb condition on February 4, 2013 and on May 29, 2014 she underwent 

right trigger thumb surgery. She sought treatment for her right index finger on September 24, 2015 

and Dr. Su diagnosed osteoarthritis of that digit. Appellant’s right thumb pain increased and on 

February 17, 2016 he performed a steroid injection. On March 30, 2016 Dr. Su diagnosed possible 

right index trigger finger. He examined appellant on June 20, 2016 and diagnosed right thumb 

carpometacarpal osteoarthritis, right index finger proximal interphalangeal joint osteoarthritis, and 

right index finger distal interphalangeal joint osteoarthritis. 

By decision dated January 30, 2017, OWCP denied appellant’s occupational disease claim 

finding that she had not submitted a written statement explaining what work factors caused or 

contributed to her condition. It therefore determined that the factual component of fact of injury 

had not been established.

On November 2, 2017 counsel requested reconsideration on behalf of appellant and 

resubmitted Dr. Su’s June 21, 2016 report.

By decision dated November 24, 2017, OWCP denied appellant’s request for 

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

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3 

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 

 

3 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.
3

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant’s application for review must be 

received within one year of the date of that decision for which review is sought.

5

 If the request is 

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

review without reopening the case for a review on the merits.6

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.7 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.8 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.9

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

already in the case record does not constitute a basis for reopening a case.10

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). 

In her November 2, 2017 request for reconsideration, appellant did not make any argument 

that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal 

argument not previously considered by OWCP. Thus, she was not entitled to a review of the merits 

of her claim based on the first and second above-noted requirements under section 10.606(b)(3).11

Appellant resubmitted the June 21, 2016 report from Dr. Su. The Board has held that 

evidence which repeats or duplicates evidence already of record does not constitute a basis for 

reopening a case.12 Consequently, the evidence submitted by appellant on reconsideration does 

not satisfy the third criterion, noted above, for reopening a claim for merit review.

 

4 20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b); see also E.R., Docket No. 09-1655 (issued March 18, 2010).

7

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

8

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

9 Supra note 7; see also Annette Louise, 54 ECAB 783 (2003).

10 M.E., 58 ECAB 694 (2007).

11 M.M., Docket No. 18-0292 (issued July 9, 2018).

12 Id.; D.K., 59 ECAB 141 (2007).
4

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3) and thus OWCP properly denied merit review.13

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the November 24, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 7, 2018

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

 

13 Supra note 11; B.R., Docket No. 17-1213 (issued January 18, 2018).