United States Department of Labor

Employees’ Compensation Appeals Board

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R.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Clarita, CA, Employer

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Docket No. 18-0600

Issued: October 5, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 23, 2018 appellant filed a timely appeal from a December 11, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has 

elapsed from the last merit decision, dated December 9, 2016, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the 

Board lacks jurisdiction over the merits of the case.

ISSUE

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

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

FACTUAL HISTORY

On December 1, 2015 appellant, then a 66-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed a left foot condition due to prolonged 

 

1 5 U.S.C. § 8101 et seq.
2

walking and standing. The employing establishment noted that she had been on limited duty since 

February 5, 1998 and had retired on August 1, 2015.

Appellant provided a narrative statement and asserted that she was constantly on her feet 

in the performance of her federal job duties. She contended that she delivered mail for 18 years 

beginning in 1980. Appellant later worked as a window clerk standing on tile floors. She alleged 

that she generally worked eight hours a day.

In a development letter dated December 10, 2015, OWCP requested additional factual and 

medical evidence in support of appellant’s occupational disease claim. It afforded her 30 days for 

response. 

In a report dated November 17, 2015, Dr. Basimah Khulusi, a Board-certified physiatrist, 

examined appellant’s left foot. She noted that appellant performed light-duty work since 1998 due 

to the accepted condition of carpal tunnel syndrome. Dr. Khulusi reported that appellant worked 

as a letter carrier for the first 18 years of her 35-year career. She noted that prior to her retirement 

appellant’s light-duty work consisted of delivering express mail, parcel pick up, collections, and 

picking up mail from another employing establishment facility. Appellant also performed the 

duties of a window clerk. She noted that her left foot condition began in March 2015. Dr. Khulusi 

diagnosed left heel spur, and left plantar fasciitis. She noted that appellant worked on her feet for 

most of her career and that her work activities had resulted in repetitive straining of the soft tissue 

structures of her feet leading to the development of the bone spur on the left and the development 

of plantar fasciitis affecting the left foot.

On December 28, 2015 appellant provided a narrative statement in response to OWCP’s 

request for information. She noted that while working as a window clerk she was provided with a 

stool, but that she was still required to walk and stand. Appellant noted that she performed that

position from 2005 through 2009. In March 2015, she experienced numbness in the toes on her 

left foot. In July 2015, appellant’s left foot began to “feel tired” which she attributed to walking 

and standing on the hard floors. The pain progressed to soreness and a stabbing pin-like feeling 

in her heel as well as pain on both sides of her left heel. Appellant retired in August 2015, but 

continued to experience left foot pain and sought medical treatment about a week after her 

retirement.

By decision dated March 1, 2016, OWCP denied appellant’s occupational disease claim,

finding that she had not submitted sufficient medical evidence to establish causal relationship 

between her diagnosed left foot condition and her implicated employment duties.

On April 10, 2016 appellant requested reconsideration of the March 1, 2016 decision. In 

support of her request, she submitted an April 14, 2016 report from Dr. Khulusi. Dr. Khulusi 

diagnosed calcaneal bone spur on the left and left plantar fasciitis. Appellant also provided a

December 3, 2015 report from Dr. Stephen C. Wan, a podiatrist. Dr. Wan noted that she attributed 

her left foot condition to prolonged walking and standing at the employing establishment. He 

diagnosed left calcaneal bone spur and plantar fasciitis of the left foot. Dr. Wan noted appellant’s 

various positions at the employing establishment and concluded that she experienced substantial 

weight loading and mechanical stress to her feet which contributed to the formation of calcaneal 
3

bone spur and soft tissue pain in the realm of plantar fasciitis. He opined that her job contributed 

significantly to the onset of her left foot conditions.

By decision dated July 15, 2016, OWCP denied modification of its March 1, 2016 decision. 

It found that the additional medical evidence of record did not contain sufficient medical reasoning 

to establish causal relationship between appellant’s diagnosed conditions and her employment 

activities.

On August 4, 2016 appellant requested reconsideration of the July 15, 2016 decision and 

submitted a report from Dr. Khulusi dated August 1, 2016. Dr. Khulusi asserted that she had 

previously provided the necessary medical rationale and requested that OWCP accept appellant’s 

claim for left bone spur and plantar fasciitis.

By decision dated October 26, 2016, OWCP denied appellant’s request for reconsideration 

of the merits of her claim. 

Appellant again requested reconsideration of the July 15, 2016 merit decision on 

November 29, 2016. She provided a November 17, 2016 note from Dr. Khulusi which reviewed 

the medical evidence appellant had previously submitted including Dr. Wan’s report. Dr. Khulusi 

requested that OWCP refer appellant for a second opinion evaluation.

By decision dated December 9, 2016, OWCP reviewed the merits of appellant’s claim, but 

denied modification of the July 15, 2016 merit decision. It noted that her October 28, 2014 job 

offer provided for a sedentary position eight hours a day. OWCP again found that the medical 

evidence of record was not well-reasoned and therefore insufficient to meet appellant’s burden of 

proof.

On March 14, 2017 appellant requested reconsideration of the December 9, 2016 merit 

decision. She submitted a March 2, 2017 report from Dr. Khulusi noting that standing and walking 

on hard surfaces as well as carrying and lifting repetitively over the years caused appellant’s 

bilateral plantar fasciitis and aggravated her heel spur. Appellant asserted, “The medical science 

and medical studies do support that prolonged time standing on hard surfaces and increased time 

walking does increase the risk of presenting with plantar fasciitis.”

By decision dated June 12, 2017, OWCP denied appellant’s request for reconsideration of 

the merits of her claim. It found that Dr. Khulusi’s March 2, 2017 report did not provide any new 

medical reasoning in support of appellant’s claim.

On November 17, 2017 appellant again requested reconsideration of the December 9, 2016 

merit decision. In support of her request, she provided a report dated November 9, 2017 from

Dr. Khulusi diagnosing calcaneal bone spur on the left and left plantar fasciitis. Appellant asserted 

that she had provided OWCP with additional medical evidence with the March 14, 2017 request 

for reconsideration. Dr. Khulusi requested that OWCP accept appellant’s diagnosed conditions or 

refer her for a second opinion evaluation.

By decision dated December 11, 2017, OWCP denied appellant’s request for 

reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 
4

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

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 

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

pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant also must file his or her application 

for review within one year of the date of that decision.4 When a claimant failed to meet one of the 

above standards, OWCP will deny the application for review without reopening the case for a 

review on the merits.5

In support of a request for reconsideration, a claimant is not required to submit all evidence 

which may be necessary to discharge his or her burden of proof.6 He or she needs only to submit 

relevant, pertinent evidence not previously considered by OWCP.7 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.8

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

already of record does not constitute a basis for reopening a case. The Board has also held that the 

submission of evidence which does not address the particular issue involved does not constitute a 

basis for reopening a case.9 

ANALYSIS

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).

In support of her November 17, 2017 reconsideration request, appellant submitted a report 

from Dr. Khulusi dated November 9, 2017. Dr. Khulusi again diagnosed calcaneal bone spur on 

the left and left plantar fasciitis. She asserted that she had provided OWCP with additional medical 

 

2 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 20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

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

7 See supra note 3. See also id., Mark H. Dever, 53 ECAB 710 (2002).

8 Supra note 6; Annette Louise, 54 ECAB 783 (2003).

9 C.A., Docket No. 17-1050 (issued May 21, 2018).
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evidence with the March 14, 2017 request for reconsideration. Dr. Khulusi requested that OWCP 

accept appellant’s diagnosed conditions or refer her for a second opinion evaluation. 

The issue underlying the denial of appellant’s claim is medical in nature -- that is whether 

she has established left foot conditions was causally related to her employment activities. Her

request for reconsideration did not show that OWCP erroneously applied or interpreted a specific 

point of law. Moreover, it did not advance a relevant legal argument not previously considered. 

Consequently, appellant was not entitled to a review of the merits of the claim based on the first 

and second above-noted requirements under section 10.606(b). 

The Board finds that Dr. Khulusi’s November 9, 2017 report is repetitive. The Board has 

held that the submission of evidence or argument which repeats or duplicates evidence already in 

the case record does not constitute a basis for reopening a case.

10

 The Board further finds that

Dr. Khulusi’s November 9, 2017 report is irrelevant as it failed to address causal relationship, the 

underlying medical issue before OWCP.11 Evidence which does not address the particular issue 

under consideration does not constitute a basis for reopening a case.12 The Board thus finds that 

this evidence submitted on reconsideration does not constitute relevant and pertinent new evidence

and is therefore insufficient to require OWCP to reopen appellant’s claim for consideration of the 

merits.

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.

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).

 

10 See L.R., Docket No. 18-0400 (issued August 24, 2018). 

11 Id., G.W., Docket No. 16-0517 (issued April 27, 2016).

12 K.T., Docket No. 18-0193 (issued May 21, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the December 11, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 5, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board