United States Department of Labor

Employees’ Compensation Appeals Board

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F.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Discovery Bay, CA, Employer

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Docket No. 18-0163

Issued: May 28, 2019

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 30, 2017 appellant filed a timely appeal from an August 21, 2017 nonmerit 

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

elapsed from OWCP’s last merit decision, dated June 1, 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 this case.

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).

 

1 5 U.S.C. § 8101 et seq.

2 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

FACTUAL HISTORY

On March 19, 2016 appellant, then a 44-year-old rural carrier associate, filed an 

occupational disease claim (Form CA-2) alleging that she sustained pain in the right shoulder area

due to factors of her federal employment. She indicated that her work required her to use her right 

hand frequently to case mail. Appellant’s work requirements included pulling down, sliding doors 

open and closed, reaching up for the back door, reaching for her seat belt, and using the gear shift 

hundreds of times per day. She noted that her shoulder was not painful on days when she was off

work. Appellant indicated that she first became aware of her claimed condition on March 4, 2015 

and first realized its relation to her federal employment on January 22, 2016. She provided a 

separate statement with her claim further describing her job duties. 

In a March 21, 2016 report, Dr. Edward O’Hara, a family medicine specialist, noted 

appellant’s history of injury and treatment, which included that she was a mail carrier for almost 

eight years. He related that she believed that the repetitiveness of her job and the amount of time 

that she used her right hand had contributed to her condition. Dr. O’Hara examined appellant and 

diagnosed biceps tendinitis of the shoulder. He also completed a form report titled “Doctor’s 

Report of Occupational Illness or Injury.” Dr. O’Hara diagnosed biceps tendinitis of the right 

shoulder and indicated that his diagnosis was consistent with appellant’s account of her injury. 

Dr. Allan C. Bushnell, Jr., Board-certified in occupational medicine, saw appellant on 

March 30 and April 7 and 27, 2016. In his March 30 and April 7, 2016 reports, he diagnosed 

biceps tendinitis and advised a return to work without restrictions. In his April 7, 2016 report,

Dr. Bushnell determined that appellant was 100 percent improved. He found that she no longer 

had right biceps tendon and right shoulder pain at the shoulder. Dr. Bushnell reiterated the 

diagnosis and opined regarding the question of causation, “I do not think that the repetitive 

activities in her job, that she claimed was the mechanism of injury for her biceps tendinitis, caused 

her biceps tendinitis, and therefore, this is not a work caused injury. It is felt that her injury was a 

work exacerbation injury.” Dr. Bushnell released appellant from care and returned her to full-duty 

work without restrictions on April 7, 2016. 

By decision dated June 1, 2016, OWCP denied appellant’s claim finding that the medical 

evidence of record was insufficient to establish that the diagnosed medical condition was causally

related to the accepted factors of her federal employment. 

On May 23, 2017 appellant requested reconsideration. She argued that Dr. Bushnell had 

opined that her right shoulder condition was exacerbated by her work as a mail carrier. Appellant

indicated that in January and February 2017, she saw an orthopedic surgeon who also indicated 

that her condition was exacerbated by her work. She noted that she had his statement. Appellant

also related that because her electrocardiogram (EKG) was normal, that the orthopedic surgeon 

could not help her because surgery was not indicated. She explained that in May 2017 she began 

seeing her current physician. Appellant noted that he wanted to do a different therapy called 

osteopathic manipulative treatment, which she believed would benefit her symptoms and 

conditions. She indicated that she had her statement as well. Appellant explained that OWCP 

already had the medical documentation with her original claim and she was now submitting the 

new medical evidence from 2017.
3

OWCP received a copy of the March 18 and 21, 2016 reports from Dr. O’Hara. It also 

received copies of the March 30, April 7, 2016 reports from Dr. Bushnell. 

By decision dated August 21, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of her claim. 

LEGAL PRECEDENT

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

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 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.5 

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 

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.6 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.7

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).

In the May 15, 2017 request for reconsideration, appellant argued that her original 

physician, Dr. Bushnell, opined that her right shoulder condition was exacerbated by her work as 

a mail carrier. The Board notes that his report was considered in the earlier decisions and as the 

issue is medical in nature, without further medical rationale this argument is insufficient to warrant 

a merit review. The Board notes that appellant did not demonstrate that OWCP erroneously 

applied or interpreted a specific point of law. Additionally, appellant did not advance any relevant 

legal arguments not previously considered by OWCP. The Board therefore finds that appellant is 

 

3 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).

4 20 C.F.R. § 10.607.

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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.

6 20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).
4

not entitled to a review of the merits based on the first and second requirements pursuant to section 

10.606(b)(3).8

Appellant also did not submit relevant and pertinent new evidence with the May 15, 2017 

request for reconsideration. She provided copies of previously considered and submitted medical 

reports. Providing additional evidence that either repeats or duplicates information already in the 

record does not constitute a basis for reopening a claim.9 Because appellant did not provide 

relevant and pertinent new evidence when requesting reconsideration, she is not entitled to a 

review of the merits based on the third requirement under section 10.606(b)(3).10 

The Board finds that appellant has not met any of the three regulatory requirements under 

section 10.606(b)(3). Therefore, 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).

 

8

Id. at § 10.606(b)(3)(i) and (ii).

9

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

10 20 C.F.R. § 10.606(b)(3)(iii).
5

ORDER

IT IS HEREBY ORDERED THAT the August 21, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 28, 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