United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.B., Appellant

and

U.S. POSTAL SERVICE, CONWAY POST 

OFFICE, Conway, SC, Employer

__________________________________________

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Docket No. 18-1535

Issued: April 3, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISCHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 8, 2018 appellant, through counsel, filed a timely appeal from a July 10, 2018 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent 

merit decision was a Board decision dated September 20, 2017, which became final after 30 days 

and is not subject to further review.2 As there was no merit decision by OWCP within 180 days 

of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3(FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this 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 20 C.F.R. § 501.6(d).

3 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

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are 

as follows.

On July 24, 2015 appellant, then a 52-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on March 17, 2014 she sustained, neck, arm, and back 

injuries as a result of a motor vehicle accident while she was on her way to work in the morning

using her personal vehicle. On the back of the form the employing establishment challenged the 

claim asserting that it had not occurred while in the performance of duty. Appellant stopped work 

on the date of the incident and has not returned. 

In a July 31, 2015 development letter, OWCP informed appellant that the documentation 

received in her claim had been reviewed and was insufficient to establish her claim. It instructed 

her to provide additional factual and medical documentation and complete an enclosed 

questionnaire. OWCP afforded appellant 30 days to respond.

On August 4, 2015 OWCP received a statement from D.F., postmaster, and G.G., 

appellant’s supervisor at the time of the accident, noting that appellant was not in the performance 

of duty at the time of the motor vehicle accident. They explained that she was scheduled to deliver 

mail that day on route 20, which had an assigned motor vehicle for the delivery route. As there 

was an assigned employing establishment vehicle, appellant’s personal vehicle was not “hired for 

delivery” of mail that day. 

In a September 4, 2015 memorandum of conference between an OWCP claims 

examiner and C.J., an employing establishment human relations specialist, the claims examiner 

sought clarification from the employing establishment regarding the issue of performance of duty 

as appellant’s work shift began at 7:00 a.m. and the accident occurred at 8:30 a.m. C.J. reiterated

that she was scheduled to drive an employing establishment vehicle that day and not her personal 

vehicle. He further noted that shifts for rural carriers could differ daily, but that appellant had not 

clocked into work at the time of the accident, and was on her way to work. 

By decision dated September 4, 2015, OWCP denied appellant’s claim, finding that she 

was not in the performance of duty at the time of the alleged injury. In support of its finding, it

noted that the motor vehicle accident occurred while she was on her way to work in her personal 

motor vehicle, she had been scheduled to use an employment vehicle to deliver mail, and that the 

incident occurred before her tour of duty began. 

 

4 Docket No. 16-1839 (issued September 20, 2017). 
3

On October 4, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which was held on May 23, 2016. 

During the hearing counsel alleged that appellant had to use her personal vehicle to deliver 

mail approximately 95 percent of the time. On the day in question, appellant was filling in for a 

coworker and was uncertain whether she was required to use her personal vehicle to deliver mail. 

On November 3, 2015 D.F. responded to two questions posed by OWCP. He noted that 

rural carrier associate employees were given a weekly schedule by close of business on the 

Wednesday prior to the upcoming week. Employees were therefore aware of whether they would 

be using an employing establishment vehicle or their own vehicle to deliver mail. In case of an 

emergency, the employing establishment would contact the employee the morning of the 

emergency to advise that they were being called in on an unscheduled day, and whether their motor 

vehicle or employing establishment vehicle was to be used. Therefore, D.F. concluded that 

employees were aware in advance as to whether their personal vehicle would be rented/hired that 

day for employing establishment business. 

By decision dated June 24, 2016, OWCP’s hearing representative affirmed the denial of 

appellant’s claim. He found that the evidence of record was insufficient to establish that she was 

in the performance of duty at the time of the March 17, 2014 motor vehicle accident. The hearing 

representative also found that the record was devoid of any evidence supporting her contention 

that appellant was only informed after the motor vehicle accident that the employing establishment 

scheduled her for use of a postal vehicle that day. 

On October 4, 2016 appellant, through counsel, appealed to the Board. 

By decision dated September 20, 2017, the Board affirmed OWCP’s hearing 

representative’s June 24, 2016 decision affirming the denial of her claim. The Board noted 

counsel’s argument that appellant used her personal vehicle 95 percent of the time and did not 

know whether she would be using her vehicle to deliver mail on the day in question, however,

found that this argument was not corroborated. The Board concluded that she was not in the 

performance of duty when injured on March 17, 2014.

On March 22, 2018 appellant, through counsel, requested reconsideration. Counsel again 

asserted that she was in the performance of duty as 95 percent of the time she used her own personal 

vehicle to deliver mail, she was injured on her way into work, and her random assignment to cover 

for an absent employee was irrelevant to whether she was in the performance of duty. OWCP did 

not receive additional evidence. 

By decision dated July 10, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of her claim. 

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an award 

for or against payment of compensation at any time on his or her own motion or on application. 
4

The Secretary, in accordance with the facts found on review, may end, decrease or increase the 

compensation awarded or award compensation previously refused or discontinued.5 

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence that: (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 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.7 If the 

request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will 

deny the request for reconsideration without reopening the case for review on the merits.8

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).

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

a specific point of law or advance a relevant legal argument not previously considered by OWCP. 

Counsel contended that she was in the performance of duty at the time of the March 17, 2014 

motor vehicle accident as she used her personal motor vehicle 95 percent of the time, was injured 

on her way into work, and her random assignment to cover for an absentee employee should have 

no bearing on the issue of performance of duty. This contention, however, was previously raised 

and addressed by the June 24, 2016 OWCP hearing representative’s decision and the Board in its 

September 20, 2017 decision. Evidence or argument that repeats or duplicates evidence previously 

of record has no evidentiary value and does not constitute a basis for reopening a case.9 Because 

this argument has been previously considered, it was insufficient to require OWCP to conduct a 

merit review. Accordingly, appellant is 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).

The Board further finds that appellant has failed to submit relevant and pertinent new 

evidence not previously considered by OWCP in support of her request for reconsideration. The 

underlying issue in this case is whether appellant submitted sufficient factual evidence to establish 

that she was in the performance of duty on March 17, 2014, as alleged. She did not submit factual 

evidence in support of her request for reconsideration. Thus, appellant is also not entitled to a 

review of the merits of her claim based on the third above-noted requirement under section 

10.606(b)(3).

 

5 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.606(b)(3); see also K.B., Docket No. 18-1392 (issued January 15, 2019); M.S., Docket No. 18-1041 

(issued October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).

7

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

8

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

9 B.C., Docket No. 17-0388 (issued June 15, 2017); J.P., 58 ECAB 289 (2007).
5

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10

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).

ORDER

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

Programs dated July 10, 2018 is affirmed.

Issued: April 3, 2019

Washington, DC

Christopher J. Godfrey, 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

 

10 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 

ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).