United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.B., Appellant

and

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Cincinnati, OH, Employer

__________________________________________

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Docket No. 19-0029

Issued: June 21, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 3, 2018 appellant filed a timely appeal from a September 20, 2018 nonmerit 

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

decision was a June 6, 2018 decision of the Board, which became final 30 days after issuance and 

is not subject to further review.1 As there was no merit decision issued by OWCP within 180 days 

of 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 20 C.F.R. § 501.6(d ); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued 

July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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 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 as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On November 15, 1995 appellant, then a 38-year-old modified mail processor, filed an 

occupational disease claim (Form CA-2) alleging that, on November 6, 1995, she experienced 

discomfort in both hands and her right shoulder due to repetitive motions required while casing 

mail. At that time, she had an accepted claim for aggravation of chondromalacia of the right knee 

in OWCP File No. xxxxxx731, and she was working in a modified sedentary position. Appellant 

stopped work on November 9, 1995. On November 13, 1996 OWCP accepted her claim for 

bilateral sprain/strain of both hands and wrists and right shoulder. It paid appellant wage-loss 

compensation benefits through November 17, 1999. However, on November 18, 1999 OWCP 

terminated her wage-loss compensation as she failed to accept an offer of suitable employment.5

On June 10, 2016 appellant filed a claim for compensation (Form CA-7) for the period 

April 19, 1997 to June 9, 2016. By decision dated August 23, 2016, OWCP denied her claim for 

wage-loss compensation for the claimed period. By decision dated June 29, 2017, an OWCP 

hearing representative affirmed OWCP’s decision. She determined that the evidence of record 

was insufficient to establish causal relationship between the claimed period of disability and the 

accepted work injury. 

Appellant appealed to the Board on August 14, 2017. By decision dated June 6, 2018, the 

Board affirmed OWCP’s June 29, 2017 decision finding that appellant had not met her burden of 

proof to establish that she was disabled for the period August 19, 1997 to June 9, 2016, causally 

related to the accepted November 6, 1995 employment injury.6 The Board noted that OWCP 

terminated appellant’s wage-loss compensation benefits on November 18, 1999, because she

refused suitable employment. 

Appellant requested reconsideration on July 3, 2018. She indicated that she wished to 

change her treating physician to Dr. Lawrence Harvey, an internal medicine specialist. Appellant

detailed her history of complaints of severe pain in her hands and right shoulder dating back to 

 

4 Docket No. 17-1761 (issued June 6, 2018).

5 Appellant’s requests that OWCP reconsider the termination were denied. She filed multiple appeals to the Board 

and, by decisions dated December 3, 2003, Docket No. 03-1651 (issued December 3, 2003) and October 2, 2012,

Docket No. 12-0471 (issued October 2, 2012) the Board affirmed the denial of appellant’s reconsideration requests as 

they were untimely filed and failed to demonstrate clear evidence of error. Appellant’s last request for reconsideration 

regarding the suitable work termination was denied by OWCP on April 23, 2015.

6

Id.
3

1995 and noted that she worked until April 1997, when she could no longer move her hands. She 

also argued that the employing establishment provided her with offers to return to work based 

upon inaccurate and incomplete medical reports. Appellant argued that OWCP committed error, 

that her physicians provided detailed medical reports, and attributed her injuries to work at the 

employing establishment. 

In a report dated September 17, 2003, Dr. Jennifer Cavitt, a Board-certified clinical 

neurophysiologist, noted appellant’s history of injury and treatment and advised that her conditions

began in 1995 while working at the employing establishment. She indicated that appellant had a 

history of right carpal tunnel syndrome which may be contributing to some of appellant’s 

symptoms in the wrist and hand. Dr. Cavitt recommended additional testing and surgery, which 

appellant declined. 

In a report dated June 8, 2018, Dr. Harvey noted that he was treating appellant for 

numerous conditions to include: hypertension, congestive heart failure, chronic kidney disease, 

sarcoidosis, polymyalgiarheumatic, osteoarthritis, spondylosis, lumbar radiculopathy, anxiety 

disorder, and acid reflux disease.

OWCP received previously submitted reports including a November 17, 1995 report from

Dr. David H. Gillis, specializing in orthopedic surgery; reports from Dr. Errol Stern, a Boardcertified orthopedic surgeon, dated October 1 and November 4, 1997, referring to a work-related 

injury on April 19, 1997, and indicating that appellant could perform some type of modified work; 

an October 31, 1997 magnetic resonance imaging (MRI) scan of the left shoulder; a July 15, 1997 

duty status report (Form CA-17); a June 2, 1998 report from Dr. Daniel G. Reilly, a Boardcertified orthopedic hand surgeon; reports dated March 3, 2006, April 21, 2008, December 14, 

2012, and September 14, 2016, from Dr. Michael Pordy, a Board-certified internist, who opined 

that appellant was disabled and unable to return to work; a July 25, 2013 electrodiagnostic nerve 

conduction study; and records which predated the November 6, 1995 work injury. 

By decision dated September 20, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of her claim. It found that her reconsideration request did not raise a 

substantive legal error or argument, the medical evidence was irrelevant to the matter at hand and 

repetitious, and that she did not submit new and relevant evidence.7

LEGAL PRECEDENT

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

matter of right.8 OWCP has discretionary authority in this regard and has imposed certain 

 

7 The Board notes that OWCP is not authorized to review Board decisions. Board decisions are not subject to 

review except by the Board and they become final after 30 days. Although the June 6, 2018 Board decision was the 

last merit decision of record, OWCP’s June 29, 2017 merit decision is the appropriate subject of possible modification 

by OWCP. See 20 C.F.R. § 501.6(d).

8 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). 
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limitations in exercising its authority.9 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.10 

A timely application for reconsideration, including all supporting documents, must 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.11 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.12

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.13 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.14 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.15

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

already in the case record does not constitute a basis for reopening a case.16 The Board also has 

held that the submission of evidence which does not address the particular issue involved does not 

constitute a basis for reopening a claim.17

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).

 

9 20 C.F.R. § 10.607.

10 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.

11 Id. at § 10.606(b)(3).

12 Id.

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

14 C.F., Docket No. 18-0360 (issued July 19, 2018); Mark H. Dever, 53 ECAB 710 (2002). 

15 C.F., id.; Annette Louise, 54 ECAB 783 (2003).

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

17 See M.E., Docket No. 18-0553 (issued November 5, 2018); S.T., Docket No. 17-0790 (issued May 22, 2018);

M.E., 58 ECAB 694 (2007).
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Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

that was previously considered in the June 6, 2018 decision. Findings made in prior Board 

decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.18

The Board notes that the underlying issue in this case is whether appellant met her burden 

of proof to establish disability from August 19, 1997 until November 18, 1999.

In her June 18, 2018 request for reconsideration, appellant requested a change of treating 

physician, discussed her history of injury, and argued that her work contributed to her condition

and her offers to return to work were based upon inaccurate and incomplete medical reports. She 

also argued that her physicians provided detailed medical reports and that OWCP committed error.

Appellant’s previously submitted arguments on reconsideration 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 by OWCP. The arguments are irrelevant to the medical issue 

of whether appellant was disabled during the period April 18, 1997 until her benefits were 

terminated on November 18, 1999 for refusal of suitable work19. Consequently, appellant was not 

entitled to a review of the merits based on the first and second above-noted requirements under 20 

C.F.R. § 10.606(b)(3).

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

evidence in support of reconsideration.

The new evidence includes records which predated the November 6, 1995 work injury, a 

September 17, 2003 report from Dr. Cavitt, who noted that appellant had a history of right carpal 

tunnel syndrome which may be contributing to some of appellant’s symptoms in the wrist and 

hand, and a June 8, 2018 report from Dr. Harvey, who noted that he was treating appellant for 

numerous nonwork-related conditions. The new evidence is irrelevant because neither physician 

offered an opinion that appellant was disabled during the period April 18, 1997 to November 18, 

1999 causally related to her accepted November 6, 1995 employment injury. Evidence that fails 

to address the underlying issue on reconsideration is insufficient to warrant further merit review.20

OWCP also received copies of previously submitted reports and documents addressed and 

evaluated by OWCP and the Board. The Board has held that the submission of evidence which 

repeats or duplicates evidence already in the case record does not constitute a basis for reopening 

a case.21

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

 

18 J.L., Docket No. 17-1460 (issued December 21, 2018).

19 Supra note 17.

20 Id.

21 M.B., Docket No. 17-1980 (issued May 14, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984)
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a specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

constitute relevant and pertinent new evidence not previously considered.

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 September 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 21, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board