United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Springfield, TN, Employer

__________________________________________

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Docket No. 18-1682

Issued: February 22, 2019

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 September 4, 2018 appellant, through counsel, filed a timely appeal from a March 21, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated December 18, 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 this case.3

 

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.

3 The Board notes that, following the March 21, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
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).

FACTUAL HISTORY

On September 1, 2017 appellant, then a 36-year-old city carrier, filed a traumatic injury

claim (Form CA-1) alleging that he sustained an injury that day when his right leg and knee 

buckled after turning around while in the performance of duty. In support of his claim, he 

submitted medical evidence, including an October 25, 2017 report from Dr. Robert Landsberg, a 

Board-certified orthopedic surgeon, who indicated that appellant was injured at work on 

September 1, 2017. Dr. Landsberg diagnosed internal derangement of right knee, pain in right 

knee, history of arthroscopic knee surgery, “tear of medial meniscus of right knee, unspecified tear 

type, unspecified whether old or current tear, subsequent encounter,” and chondromalacia patellae, 

right knee.

By decision dated December 18, 2017, OWCP denied the claim finding that the medical 

evidence of record was insufficient to establish causal relationship between appellant’s diagnosed 

conditions and the accepted September 1, 2017 employment incident.

Appellant resubmitted the October 25, 2017 report from Dr. Landsberg on January 8, 2018.

On February 16, 2018 appellant requested reconsideration. He submitted a narrative 

statement dated February 8, 2018 reiterating the factual history of his claim and indicating that he 

went to a doctor as suggested by OWCP, who opined that he needed surgery. Appellant later 

submitted a March 2, 2018 report from Dr. Landsberg who reiterated his diagnoses. 

By decision dated March 21, 2018, OWCP denied appellant’s request for reconsideration 

without conducting a merit review.

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 

 

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.
3

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

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

duplicates evidence or argument already in the case record,

9

and the submission of evidence or 

argument, which does not address the particular issue involved, 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 his claim pursuant to 5 U.S.C. § 8128(a).

Appellant’s February 16, 2018 request for reconsideration neither alleged, nor 

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

his reconsideration request, appellant submitted a narrative statement reiterating the factual history 

of his claim and indicating that he went to a doctor suggested by OWCP, who opined that he 

needed surgery. The Board finds that the submission of this argument did not require reopening 

appellant’s case for merit review because, in its December 18, 2017 merit decision, OWCP had 

found that the medical evidence was insufficient to establish causal relationship. Appellant’s 

submission of this narrative statement fails to constitute a new argument regarding the underlying 

issue of causal relationship between his right knee conditions and the accepted September 1, 2017 

employment incident. Thus, the Board finds that appellant has not advanced a relevant legal 

argument not previously considered by OWCP. Consequently, appellant is not entitled to further 

review of the merits of his claim based on the first and second above-noted requirements under 

20 C.F.R. § 10.606(b)(3).

Appellant also did not submit relevant and pertinent new evidence not previously 

considered by OWCP. Along with his reconsideration request, he resubmitted an October 25, 

2017 report from Dr. Landsberg. Appellant subsequently submitted a report from Dr. Landsberg 

dated March 2, 2018 which merely reiterated his diagnoses. The Board finds that submission of 

these reports did not require reopening appellant’s case for merit review. As OWCP denied 

appellant’s claim based on the lack of supportive medical evidence establishing causal 

relationship, and Dr. Landsberg’s reports repeat evidence already in the case record, they are 

duplicative and cumulative and fail to constitute relevant and pertinent new evidence.11 Therefore, 

this evidence is insufficient to require OWCP to reopen appellant’s claim for consideration of the 

 

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

9 P.H., Docket No. 18-1020 (issued November 1, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome 

Ginsberg, 32 ECAB 31, 33 (1980).

10 C.B., Docket No. 18-1108 (issued January 2, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11 Supra note 9.
4

merits.12 Thus, appellant is not entitled to further review of the merits of his claim based on the 

third above-noted requirement under 20 C.F.R. § 10.606(b)(3).

As appellant’s request for reconsideration failed to meet any of the criteria under 20 C.F.R. 

§ 10.606(b)(3), the Board accordingly finds that OWCP properly denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 20 C.F.R. § 10.608.

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).

ORDER

IT IS HEREBY ORDERED THAT the March 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 22, 2019

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

 

12 See L.H., 59 ECAB 253 (2007).