United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.N., Appellant

and

U.S. POSTAL SERVICE, BOSTON 

PROCESSING & DISTRIBUTION CENTER, 

Boston, MA, Employer

__________________________________________

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Docket No. 19-1372

Issued: June 22, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 10, 2019 appellant filed a timely appeal from a March 21, 2019 nonmerit decision 

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

OWCP’s last merit decision, dated October 19, 2018, 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the March 21, 2019 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 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 3, 2018 appellant, then a 61-year-old electronic technician, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his right shoulder on August 25, 2018 when he 

felt a twinge and a burning sensation in his right elbow while attempting to adjust the belt/rollers 

on a delivery bar code sorter machine while in the performance of duty. On the reverse side of the 

claim form, the employing establishment acknowledged that appellant was injured in the 

performance of duty. It also indicated that he had stopped work on August 26, 2018. 

In a properly executed authorization for examination and/or treatment (Form CA-16) dated 

September 4, 2018, Dr. Guido Guidotti, who specializes in occupational medicine, diagnosed a 

right elbow sprain. He checked a box marked “Yes” indicating that the condition was caused or 

aggravated by the described employment activity of appellant pulling on the belt of a heavy 

machine. In an attending physician’s report (Form CA-20) of even date, Dr. Guidotti diagnosed 

right elbow sprain, checked a box marked “Yes” that the condition was caused or aggravated by 

employment, and found that he was unable to work. In a duty status report (Form CA-7) of even

date, he found that appellant was totally disabled. 

An August 26, 2018 x-ray of appellant’s right elbow interpreted by Dr. David Pace, a 

Board-certified radiologist, included findings of an elbow joint effusion, which he noted may be 

secondary to postoperative and degenerative changes, a possible loose body, and degenerative 

changes associated with a history of a previous fracture and surgery along the radial head/neck.

3

In a report dated August 29, 2018, Dr. Kai Mithoefer, a Board-certified orthopedic 

surgeon, noted that appellant complained of a right elbow injury that he sustained at work on 

August 25, 2018. He discussed his history of a previous injury to his elbow as a youth and 

subsequent surgery. Dr. Mithoefer noted that appellant had slightly reduced motion, but no pain 

after his previous elbow injury and could work without restrictions until his August 25, 2018 

injury. He diagnosed a right elbow injury with effusion and noted that, while appellant had 

degenerative changes, he had clearly sustained a new injury. 

A September 12, 2018 magnetic resonance imaging (MRI) scan report of appellant’s right 

elbow, interpreted by Dr. Ketan Patel, a radiology specialist, revealed a small joint effusion, 

diffuse synovitis, severe osteoarthritis, severe tendinopathy of the right common extensor tendon, 

a chronic radial collateral ligament tear, and a partial-thickness right medial ulnar collateral 

ligament tear.

In an updated September 4, 2018 report, Dr. Guidotti provided a history of the August 25, 

2018 employment incident. He diagnosed a partial thickness tear of the extensor carpi radialis 

 

3 On August 26, 2018 a physician assistant evaluated appellant for right elbow pain and swelling that had occurred 

after he stretched a heavy belt on a machine at work.
3

brevis tendon, tendinopathy of the common extensor tendon from the lateral epicondyle, a radial 

collateral ligament tear, a partial thickness distal medial ulnar collateral ligament tear, and 

secondary osteoarthritis of the right elbow. Dr. Guidotti attributed the diagnoses to appellant’s 

pulling on the belt over rollers on a machine, noting that this “placed an excessive load on his 

tendon, causing a tear and aggravating his tendinopathy, ligament tears, and osteoarthritis.”

In a September 18, 2018 Form CA-20 report, Dr. Guidotti diagnosed a right elbow sprain 

and checked a box marked “Yes” noting that the condition resulted from the described employment 

activity of pulling a belt onto a heavy machine.

By decision dated October 19, 2018, OWCP denied appellant’s traumatic injury claim. It 

found that he had established that the August 25, 2018 employment incident occurred as alleged, 

that he was in the performance of duty, and that a medical condition had been diagnosed. OWCP 

determined, however, that the medical evidence of record was insufficient to establish a diagnosed 

condition causally related to the accepted August 25, 2018 employment incident.

On October 29, 2018 appellant requested reconsideration. He resubmitted a September 18, 

2018 statement describing the occurrence of the August 25, 2018 employment incident. 

By decision dated November 6, 2018, OWCP denied appellant’s request for 

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

OWCP subsequently received Form CA-17 reports dated October 30 and November 13, 

2018 from Dr. Guidotti, who diagnosed right elbow sprain and found that appellant was unable to 

work. In Form CA-20 reports dated October 30 and November 27, 2018, Dr. Guidotti diagnosed 

right elbow strain and checked a box marked “Yes” indicating that the condition was caused or 

aggravated by an employment activity as it had “occurred at work.”

On January 8, 2019 appellant again requested reconsideration. In an accompanying letter

dated January 2, 2019, he advised that he had attached pictures and treatment notes from his 

episode of gout in his right foot prior to the August 25, 2018 employment incident, which he 

claimed the employing establishment was attempting to represent as his elbow injury. Appellant

asserted that his absence prior to his injury date was due to his gout in his foot, not an elbow injury 

as claimed by the employing establishment. He noted that he had missed work three days before 

the August 25, 2018 employment incident due to gout in his right foot. Appellant also advised 

that he had received a letter of warning that was unrelated to this injury which had since been 

rescinded.

With the request for reconsideration, appellant submitted a January 2, 2019 supplemental 

factual statement and resubmitted his September 18, 2018 statement, a copy of the August 25, 

2018 letter of warning issued by the employing establishment, his grievance appeal form, an 

October 26, 2018 settlement agreement regarding an Equal Employment Opportunity (EEO)

complaint, an unsigned urgent care summary report dated August 14, 2018, Dr. Guidotti’s 

September 4, 2018 report, and the September 12, 2018 MRI scan of his right elbow.

By decision dated March 21, 2019, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.4

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (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.5

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.8

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).

In his January 8, 2019 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law and did not advance a relevant legal 

argument not previously considered by OWCP. He noted that he had missed work due to gout in 

his foot before the August 25, 2018 incident and that a letter of warning that he had received from 

the employing establishment, which he claimed mischaracterized the situs of his medical 

condition, was not relevant to the injury and had been withdrawn. OWCP, however, has accepted 

that the August 25, 2018 employment incident occurred as alleged. Appellant’s contentions are 

not relevant to the underlying issue of whether he has met his burden of proof to establish a medical 

condition causally related to the accepted employment incident.9 This is a medical issue which 

 

4 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

5 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

6

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

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.

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

J.A., Docket No. 19-1817 (issued April 6, 2020).
5

must be addressed by relevant and pertinent new medical evidence.10 Consequently, he 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).11

The Board further finds that appellant has not submitted relevant and pertinent new 

evidence not previously considered by OWCP in support of his request for reconsideration. The 

underlying issue on reconsideration was whether he has established causal relationship between 

his right elbow condition and the accepted August 25, 2018 employment incident. As this is a 

medical issue, it must be addressed by relevant and pertinent new medical evidence.12 With his 

request for reconsideration, appellant submitted a January 2, 2019 supplemental factual statement 

and resubmitted his September 18, 2018 statement and attached photographs, a copy of the 

August 25, 2018 letter of warning issued by the employing establishment, his grievance appeal 

form, an October 26, 2018 settlement agreement regarding an Equal Employment Opportunity 

(EEO) complaint, an unsigned urgent care summary report dated August 14, 2018, Dr. Guidotti’s 

September 4, 2018 report, and the September 12, 2018 MRI scan of his right elbow. The Board 

finds that this evidence is irrelevant to the issue of causal relationship as it does not contain a 

rationalized medical opinion on the issue. The Board further finds that the Form CA-17 and Form 

CA-20 reports dated October and November 2018 from Dr. Guidotti, repeated his prior findings. 

Evidence that repeats or duplicates evidence already in the case record, or is cumulative in nature,

has no evidentiary value and does not constitute a basis for reopening a case.13 The evidence 

submitted in support of his request for reconsideration failed to address the underlying issue of 

causal relationship and thus appellant was not entitled to a review of the merits of his claim 

pursuant to the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).14 

The Board, accordingly, finds that appellant has not met 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.15

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).16

 

10 See S.P., Docket No. 18-1419 (issued February 27, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

11 Y.H., Docket No. 18-1618 (issued January 21, 2020).

12 K.W., Docket No. 18-0970 (issued February 15, 2019). 

13 L.C., Docket No. 19-0503 (issued February 7, 2020); A.A., Docket No. 18-0031 (issued April 5, 2018). 

14 R.W., Docket No. 18-1324 (issued January 21, 2020).

15 S.H., Docket No. 19-1115 (issued November 12, 2019). 

16 The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization 

may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. 

The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the 

examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 

17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
6

ORDER

IT IS HEREBY ORDERED THAT the March 21, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 22, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board