United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Memphis, TN, 

Employer 

__________________________________________ 

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Docket No. 16-1253 

Issued: February 7, 2017 

Appearances: Case Submitted on the Record

Frankie Sanders, 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 May 25, 2016 appellant, through her representative, filed a timely appeal from an 

April 6, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from OWCP’s last merit decision dated November 2, 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 to review 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 appellant submitted additional evidence to OWCP after the April 6, 2016 decision was 

issued. 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

ISSUE 

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

pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On April 17, 2014 appellant, a 60-year-old clerk, filed an occupational disease claim 

(Form CA-2), alleging that she sustained injuries to both wrists, both knees, both shoulders, 

neck, back, both hips, both ankles, both ears, and both feet due to repetitive motion in the 

performance of duty. She stated that she first became aware of her conditions on January 27, 

2014 and first attributed them to her federal employment on March 23, 2014. 

By decision dated July 29, 2014, OWCP denied appellant’s claim finding that she failed 

to establish fact of injury. 

On September 10, 2014 appellant requested reconsideration. In a decision dated 

November 21, 2014, OWCP modified its decision to find that she had submitted sufficient 

evidence to establish fact of injury, but failed to establish a causal relationship between her 

diagnosed conditions and factors of her federal employment. 

On March 2, 2015 appellant again requested reconsideration. By decision dated April 22, 

2015, OWCP denied modification of its prior decision. 

On September 11, 2015 appellant again requested reconsideration and submitted a 

September 30, 2015 report from Dr. Michael L. Lester, a Board-certified internist, who 

diagnosed knee strain/sprain, cervical strain, and lumbar strain and noted that appellant had not 

worked for the employing establishment since April 16, 2014 due to a right knee injury. 

Dr. Lester reported that on January 27, 2014 during the performance of her duties, walking up a 

ramp at work, appellant felt a sudden “pop” in her right knee and also suddenly began to 

experience “pain all over,” in her wrists, neck, back, both knees, both shoulders, both hips, both 

ankles, and both feet. 

Appellant also submitted reports dated May 13 through July 22, 2015 from Dr. Marilyn 

Watts, a retired Board-certified pediatrician practicing Ayurvedic medicine, who diagnosed 

bilateral rotator cuff syndrome, bilateral bicipital tendinitis, cervical sprain, cervical disc disease, 

thoracic sprain, lumbar disc disease, lumbar sprain, sciatica, bilateral knee strain/sprain, right 

Baker’s cyst, bilateral osteochondritis, bilateral carpal tunnel syndrome, and cochlear 

hyperacusis and opined that appellant’s conditions were causally related to her federal duties of 

casing mail, sitting, standing, reaching, and lifting. 

By decision dated November 2, 2015, OWCP denied modification of its prior decision as 

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

diagnosed conditions and factors of her federal employment. 

On April 1, 2016 appellant again requested reconsideration and submitted a 

November 19, 2015 report from Dr. Lester, who reiterated the factual history of appellant’s 

claim and diagnosed knee strain/sprain, subsequent encounter, and other tear of the medial 
3

meniscus, current. She also submitted reports dated February 11, March 17, and April 1, 2016 

from Dr. Watts, who reiterated her diagnoses and medical opinions, noting that she had 

previously addressed the issues of causal relationship in her July 22, 2015 report. 

By decision dated April 6, 2016, OWCP denied appellant’s request for reconsideration. 

It found that she failed to submit relevant and pertinent new evidence and did not show that it 

erroneously applied or interpreted a point of law not previously considered by OWCP. 

LEGAL PRECEDENT 

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

a matter of right. Rather, it vests OWCP with discretionary authority to determine whether it 

will review an award for or against compensation.4

 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority under section 8128(a).5

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

OWCP 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 

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

pertinent new evidence not previously considered by OWCP.6

 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.7 When a claimant fails to meet one of 

the above standards, OWCP will deny the application for reconsideration without reopening the 

case for 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 record9 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 

pursuant to 5 U.S.C. § 8128(a). Appellant did not attempt to demonstrate that OWCP 

 4 Supra note 2. 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. 5 U.S.C. § 8128(a). 

5 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

6

 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009). 

7 Id. at § 10.607(a). 

8 Id. at § 10.608(b). 

9 See A.L., supra note 6. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

10 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
4

erroneously applied or interpreted a point of law. Moreover, she did not advance a legal 

argument not previously considered by OWCP. 

In support of her March 17, 2016 reconsideration request, appellant submitted reports 

dated February 11, March 17, and April 1, 2016 from Dr. Watts, who reiterated her diagnoses 

and indicated that her opinion remained the same as her July 22, 2015 report, which was that 

appellant’s conditions were causally related to her federal duties of casing mail, sitting, standing, 

reaching, and lifting. The Board finds that submission of these reports did not require reopening 

appellant’s case for merit review. OWCP previously denied appellant’s claim based on the lack 

of supportive medical evidence and these latest reports from Dr. Watts repeat evidence already in 

the case record. As such, the newly submitted reports from Dr. Watts are cumulative and do not 

constitute relevant and pertinent new evidence.11 Therefore, they are insufficient to require 

OWCP to reopen the claim for consideration of the merits. 

Appellant also submitted a November 19, 2015 report from Dr. Lester, who reiterated the 

factual history of appellant’s claim and diagnosed knee strain/sprain, subsequent encounter, and 

other tear of the medial meniscus, current. The Board finds that submission of this evidence did 

not require reopening appellant’s case for merit review as it failed to address the issue of causal 

relationship between appellant’s conditions and factors of her federal employment, which was 

the issue before OWCP.12 Therefore, this evidence does not constitute relevant and pertinent 

new evidence and is also insufficient to require OWCP to reopen the claim for consideration of 

the merits. 

On appeal, appellant’s representative argues the merits of the claim and contends that 

OWCP did not properly review the evidence in the case. However, the Board finds that 

appellant did not submit any evidence to show that OWCP erroneously applied or interpreted a 

specific point of law or advanced a relevant legal argument not previously considered by the 

OWCP. Because appellant only submitted repetitive evidence with her request for 

reconsideration, the Board finds that she did not meet any of the necessary requirements and is 

not entitled to further merit review.13

CONCLUSION 

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

pursuant to 5 U.S.C. § 8128(a). 

 11 See supra notes 6 and 9. 

12 See supra note 10. 

13 See L.H., 59 ECAB 253 (2007). 
5

ORDER 

IT IS HEREBY ORDERED THAT the April 6, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 7, 2017 

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