United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Monterey Park, CA, Employer 

__________________________________________ 

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Docket No. 17-0540 

Issued: July 26, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 10, 2017 appellant, through counsel, filed a timely appeal from a 

December 16, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last merit decision on the underlying issue, 

dated October 8, 2015, 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 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

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

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

FACTUAL HISTORY 

On December 10, 2002 appellant, then a 46-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that on August 1, 2002 he first became aware of his bilateral 

Achilles tendon condition. OWCP accepted the claim for bilateral calcaneous spurs. It also 

accepted sprain of the right shoulder rotator cuff and upper arm. OWCP authorized resection of 

the fractured bone and multiple bone fragments posterior of the left calcaneus, repair of Achilles 

tendon of the left ankle, resection of the bone posterior right calcaneus and repair of Achilles 

tendon of the right ankle with removal of a calcified bone. The procedures were performed on 

July 16, 2003 and March 3, 2004 by Dr. Brad A. Katzman, a Board-certified podiatrist. 

In a March 14, 2007 decision, OWCP granted appellant a schedule award for one percent 

permanent impairment of the right arm and one percent permanent impairment of each leg.3

 

On subsequent dates, OWCP expanded the accepted conditions to include bilateral 

Achilles tendinitis; crushing injury of the ankle and foot; multiple and unspecified open wound 

of the leg without complications; and bilateral shoulder, upper arm, and rotator cuff sprain; and 

bilateral shoulder impingement syndrome. It authorized right and left shoulder open subacromial 

decompression with open rotator cuff repair performed on March 24, 2009 and October 26, 

2010, respectively, by Dr. Scott Goldman, an attending Board-certified orthopedic surgeon. 

On March 25, 2013 appellant returned to modified-duty work as a customer care agent. 

He stopped work on July 18, 2013 and filed a recurrence claim (Form CA-2a) alleging that he 

sustained right knee, left hip, and lower back injuries on that day due to his accepted workrelated injuries.4

 Subsequently, appellant requested expansion of his claim to include conditions 

of the right knee, lower back and left hip. 

In a January 14, 2014 decision, OWCP denied expansion of appellant’s claim because the 

medical evidence of record failed to demonstrate that the diagnosed conditions were caused by 

the accepted work injuries. 

On February 5, 2014 appellant requested a telephone hearing before an OWCP hearing 

representative from the January 14, 2014 decision. This was held on August 12, 2014. 

 3

 In a January 20, 2016 decision, OWCP granted appellant a schedule award for an additional 10 percent 

permanent impairment of the right upper extremity for a total of 11 percent permanent impairment. 

4

 In a January 17, 2014 decision, OWCP denied appellant’s claim for a recurrence of disability commencing on 

July 18, 2013. It found that the medical evidence of record was insufficient to establish that he was disabled due to 

a material change or worsening of his accepted work-related conditions. That decision was affirmed on October 24, 

2014 by an OWCP hearing representative. 
3

Following the hearing, appellant submitted an August 15, 2014 report from Dr. Goldman. 

Dr. Goldman noted that appellant had been under his care for treatment of a painful condition 

affecting his bilateral shoulders and bilateral ankles (Achilles tendons). He related, however, 

that due to an altered gait, appellant complained about low back, left hip, and right knee pain. 

Dr. Goldman maintained that it was medically most probable that the injury to his left hip, low 

back, and right knee was due to the altered gait (limp) that developed from his bilateral ankle 

injuries. He noted that due to this limp, the left hip, low back, and right knee were 

overcompensating which eventually caused pain in these areas. Dr. Goldman concluded that it 

was medically most probable that appellant would benefit from conservative care. In a report 

dated September 8, 2014, he noted a history of the accepted work injuries and appellant’s 

medical treatment. Dr. Goldman reported findings on examination of the bilateral shoulders, 

ankles, and upper and lower limbs. He diagnosed right shoulder impingement syndrome with 

rotator cuff injury, left shoulder impingement syndrome that was doing well status postsurgery, 

right Achilles tendinitis that was doing well, and left Achilles tendinitis that was inflamed and 

thickened. Dr. Goldman addressed appellant’s treatment plan, which included a request for 

authorization to evaluate and treat his right knee condition as it was a compensable consequence 

secondary to overcompensating for his bilateral ankle (Achilles tendon) injuries. 

By decision dated October 24, 2014, an OWCP hearing representative set aside the 

January 14, 2014 decision and remanded the case to OWCP for further development of the 

medical evidence as Dr. Goldman’s August 15 and September 8, 2014 reports provided an 

uncontroverted inference of causal relationship between the accepted work injuries and the 

claimed additional conditions. She directed OWCP to refer appellant to an OWCP district 

medical adviser (DMA) to determine whether the claimed additional medical conditions resulted 

from his accepted work injuries. 

On October 4, 2015 an OWCP DMA reviewed the medical record and found that 

appellant’s right knee, lower back, and left hip conditions were not causally related to the 

accepted work conditions. 

By decision dated October 8, 2015, OWCP again denied expansion of appellant’s claim. 

It accorded the weight of the medical evidence to the DMA’s October 4, 2015 opinion. 

Appellant submitted medical reports and diagnostic test results dated October 11, 2006 to 

August 29, 2016 which addressed his bilateral ankle, foot, and shoulder conditions, permanent 

impairment, work capacity and restrictions, and medical treatment. He also submitted a 

February 9, 2016 report from Dr. Goldman who requested that OWCP expand the acceptance of 

appellant’s claim. Dr. Goldman restated his prior opinion that it was most reasonably, medically 

probable that appellant’s right knee condition was a compensable consequence caused by his 

altered gait from his bilateral Achilles tendinitis. He suspected that he may have a meniscal right 

knee injury and maintained that treatment was necessary because he currently had internal 

derangement of the right knee. Dr. Goldman noted that once appellant was evaluated, he would 

know whether a magnetic resonance imaging (MRI) scan would be beneficial. In a March 7, 

2016 report, he reiterated his request for authorization to treat appellant’s right knee symptoms 

and pain because he walked with an altered gait due to his bilateral Achilles tendons. 
4

In a September 8, 2016 letter, appellant, through counsel, requested reconsideration of the 

October 8, 2015 decision and resubmitted Dr. Goldman’s February 9, 2016 letter. 

Appellant also submitted a September 1, 2016 progress note from his physical therapist 

which noted a diagnosis of right shoulder impingement syndrome and addressed the treatment of 

his right shoulder pain. 

By decision dated December 16, 2016, OWCP denied reconsideration of the merits of 

appellant’s claim. It found that the evidence submitted was duplicative and irrelevant. 

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.5

 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).6

 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.7 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.8

ANALYSIS 

On September 8, 2016 appellant requested reconsideration of OWCP’s October 8, 2015 

decision which found he had failed to sustain right knee, left hip, and lower back conditions as a 

consequence of his accepted bilateral calcaneous spurs, bilateral shoulder, upper arm, and rotator 

sprain, bilateral Achilles tendinitis, crushing injury of the ankle and foot, multiple and 

unspecified open wound of the leg without complications, and bilateral shoulder impingement 

syndrome. It authorized July 16, 2003, March 3, 2004, March 24, 2009 and October 26, 2010 

bilateral foot and ankle and shoulder surgeries. The underlying issue on reconsideration was 

whether appellant established a causal relationship between his claimed additional conditions 

and the accepted work conditions. That is a medical issue which must be addressed by relevant 

and pertinent new medical evidence.9

 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.608(a). 

 7 Id. at § 10.606(b)(3). 

8 Id. at § 10.608(b). 

9 See Bobbie F. Cowart, 55 ECAB 746 (2004); Jaja K. Asaramo, 55 ECAB 200 (2004). 
5

In his September 8, 2016 request for reconsideration, counsel did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a new and relevant legal 

argument not previously considered. Thus, appellant 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 has failed to submit relevant and pertinent new 

evidence in support of reconsideration. Dr. Goldman’s February 9 and March 7, 2016 reports, 

while new, essentially reiterated his prior opinion that appellant’s accepted claim should be 

expanded to include a right knee condition and medical treatment should be authorized for this 

condition as it was caused by appellant’s altered gait resulting from his accepted bilateral 

Achilles tendinitis. 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.10

The new progress note dated September 1, 2016 from appellant’s physical therapist is 

insufficient to warrant merit review as a physical therapist is not considered a physician as 

defined under FECA.11 The Board finds, therefore, that this evidence is not relevant to the 

underlying medical issue on appeal and is insufficient to warrant further merit review of 

appellant’s claim. 

The Board accordingly finds that appellant failed to meet 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. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. However, 

as found, OWCP did not abuse its discretion in refusing to reopen his claim for a review on the 

merits.

CONCLUSION 

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

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

 10 D.K., 59 ECAB 141 (2007). 

11 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, 

and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this 

subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, 

and osteopathic practitioners within the scope of their practice as defined by State law). 
6

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: July 26, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board