United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fort Knox, KY, Employer

__________________________________________

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Docket No. 19-0672

Issued: September 11, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 5, 2019 appellant, through counsel, filed a timely appeal from a December 14, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a decision of the Board dated November 2, 2018, which became final 

after 30 days of issuance, and is not subject to further review.2 As there was no merit decision 

issued by OWCP within 180 days from the filing of this appeal, pursuant to the Federal Employees’

 

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 20 C.F.R. § 501.6(d); see M.S., Docket No. 18-0222 (issued June 21, 2018); J.P., Docket No. 17-0053 (issued 

May 23, 2017); R.M., Docket No. 14-1213 (issued October 15, 2014).
2

Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d), the Board lacks 

jurisdiction over the merits of this case.

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 was previously before the Board.

4

 The facts and circumstances as set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On December 21, 2015 appellant, then a 58-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 9, 2015 she experienced right shoulder pain as a 

result of repetitive motion while in the performance of duty. On the reverse side of the claim form, 

the employing establishment indicated that appellant had not stopped work.

In a statement dated December 19, 2015, appellant explained that, on December 9, 2015, 

she extended her right arm to place two letters inside a mailbox and felt a stinging sensation in her 

upper arm. She noted that prior to this incident she had not experienced issues with her right 

shoulder. Appellant sought treatment that day, but was unable to see a physician because the 

paperwork provided by her supervisor did not contain sufficient information to bill the visit as a 

workers’ compensation claim. She further explained that on December 15, 2015 she was 

examined by a physician and referred for a magnetic resonance imaging (MRI) study. 

In support of her claim, appellant submitted treatment notes from Dr. Nison Abayev, a 

Board-certified family practitioner, who diagnosed right rotator cuff tendinitis. 

In a treatment note dated December 16, 2015, Dr. Abayev noted that appellant injured her 

right shoulder at work on December 9, 2015. She reported decreased range of motion in her right 

shoulder and pain radiating to her neck and across her collar bone. Appellant was referred for an

MRI scan study.

On December 23, 2015 Dr. Abayev held appellant off from work from December 23, 2015 

through January 3, 2016.

In a development letter dated December 29, 2015, OWCP advised appellant of the 

additional factual and medical evidence needed to establish her claim and provided a questionnaire 

for her completion. It afforded her 30 days to submit the necessary evidence. 

In a response dated December 6, 2016, appellant reiterated that she injured her right 

shoulder on December 9, 2015 while in the performance of duty when she extended her right arm 

 

3 5 U.S.C. § 8101 et seq.

4 Docket No. 17-1547 (issued November 2, 2018).
3

out to place two letters in a customer’s mailbox. She noted that at that time she felt a sharp pain 

in her right shoulder and she had no issues with her shoulder prior to this incident. 

In a duty status report (Form CA- 17) dated December 23, 2015 and January 5, 2016,

Dr. Abayev continued to diagnose right rotator cuff tendinitis and held appellant off work until she 

underwent a right shoulder MRI scan.

In reports dated January 5, 2016, Dr. Abayev noted that appellant was still awaiting 

authorization to undergo a right shoulder MRI scan and continued to hold her off work pending 

the completion of the MRI scan and to prevent further injury.

Appellant submitted a negative diagnostic report of the right shoulder dated 

January 19, 2016. 

By decision dated February 2, 2016, OWCP accepted that the December 9, 2015 

employment incident occurred as alleged. However, it denied her traumatic injury claim finding 

that the medical evidence of record was insufficient to establish a causal relationship between the 

accepted employment incident and the claimed right shoulder condition.

On April 11, 2016 appellant requested an oral hearing before an OWCP hearing 

representative. 

Appellant provided testimony at a telephonic hearing held on October 4, 2016. The 

hearing representative held the case record open for 30 days for the submission of additional 

evidence. 

Appellant subsequently submitted a progress report dated February 10, 2016 from

Dr. Abayev in which he opined that constant repetitive motions of the right arm, while in the 

performance of duty, caused small partial ruptures to the right supraspinatus tendon until it 

progressed to a complete rupture. Dr. Abayev concluded that this mechanism of injury caused 

appellant’s sudden onset of worsening pain, loss of range of motion and traumatic pain on the date 

of injury. 

A January 25, 2016 MRI scan of appellant’s right shoulder revealed a small thickness tear 

of the supraspinatus tendon and mild findings in the acromioclavicular joint and biceps.

By decision dated November 30, 2016, OWCP’s hearing representative affirmed the 

February 2, 2016 decision.

On May 23, 2017 appellant, through counsel, requested reconsideration. 

In statements dated October 6 and 7, 2016, Dr. Abayev noted that appellant indicated that 

she worked for the employing establishment for 22 years, six hours per day, 6 days per week. 

Appellant was responsible for casing up to 1,000 letters and 100 magazines or large envelopes 

each morning, which required continuous lifting of her arms above her head. She handled up to 

60 parcels daily, weighing up to 50 pounds. Additionally, appellant delivered mail to up to 500 

mailboxes per day, which required repetitious extension of her arm and opening and closing these 

mailboxes. Dr. Abayev indicated that he initially felt she had right rotator cuff tendinitis, but that 
4

a right shoulder MRI scan revealed a rotator cuff tear. He opined that appellant’s employment 

duties contributed to her right shoulder condition.

By decision dated June 14, 2017, OWCP denied modification of its prior decision. 

On July 7, 2017 appellant, through counsel, filed an appeal with the Board.

By decision dated November 2, 2018, the Board affirmed OWCP’s June 14, 2017 decision 

denying appellant’s traumatic injury claim finding that the medical evidence of record was 

insufficient to establish a right shoulder injury causally related to the accepted December 9, 2015 

employment incident. 

On December 4, 2018 counsel requested reconsideration and submitted the following 

medical evidence: (1) a negative diagnostic report of the right shoulder dated January 19, 2016;

(2) diagnostic testing results dated May 11 and December 16, 2016; (3) a September 20, 2016 

report from Megan Wade, an advanced practice nurse practitioner, and (4) reports dated 

December 16 and 23, 2015; January 5 and 19, February 10, April 5, May 10, June 15, and

December 15, 2016; and February 17 and March 15, 2017 from Dr. Abayev who continued to 

diagnose right rotator cuff tendinitis. 

By decision dated December 14, 2018, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant a merit review.

LEGAL PRECEDENT

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

to review an award for or against compensation. OWCP may review an award for or against 

payment of compensation at any time based on its own motion or on application.5

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence 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.6 If OWCP determines 

that at least one of these requirements is met, 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

 

5 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-

1569 (issued December 9, 2008).

7

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

8

Id. at § 10.608(b); J.L., Docket No. 19-0586 (issued August 9, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
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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 her December 4, 2018 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. She also did not advance a relevant 

legal argument not previously considered by OWCP. Accordingly, appellant is not entitled to a 

review of the merits of her claim based on the first and second above-noted requirements under 

section 10.606(b)(3).

The underlying issue on reconsideration was causal relationship, which requires 

submission of relevant rationalized medical evidence.9 

In support of her request for reconsideration, OWCP received a duplicative copy of a 

negative diagnostic report of the right shoulder dated January 19, 2016 and reports dated 

December 16, 2015 through March 15, 2017 from Dr. Abayev. The Board finds that the diagnostic 

report and several of Dr. Abayev’s reports were previously of record and his additional reports

which were new constituted cumulative evidence because they were substantively the same as 

those already of record. Submitting evidence that repeats or duplicates evidence already in the 

case record does not constitute a basis for reopening a case.10 Further, this evidence did not address 

the relevant issue on reconsideration and is insufficient to warrant further merit review.11 

Therefore, this evidence is insufficient to require OWCP to reopen the case for merit review.

Appellant also submitted a September 20, 2016 report from Ms. Wade, an advanced 

practice nurse practitioner, and a series of diagnostic testing results dated May 11 and 

December 16, 2016. While these reports are new, they do not constitute probative medical 

evidence. The reports of Ms. Wade are of no probative value because they do not contain rationale 

from a health care provider considered a “physician” as defined under FECA.12 Additionally, 

while the diagnostic testing reports are new, they are not relevant as the Board has long held that

diagnostic studies lack probative value as they do not address whether the employment incident 

caused any of the diagnosed conditions.13 Therefore, these reports are also insufficient to require 

 

9 Bobbie F. Cowart, 55 ECAB 746 (2004).

10 O.C., Docket No. 19-0106 (issued April 26, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

11 M.B., Docket No. 19-0596 (issued August 6, 2019); D.K., 59 ECAB 141, 147 (2007); Eugene F. Butler, id.

12 FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, 

chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. See 5 U.S.C. 

§ 8102(2); T.H., Docket No. 18-1736 (issued March 13, 2019); M.M., Docket No. 16-1617 (issued January 24, 2017);

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants, and physical 

therapists are not competent to render a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 

(2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be 

resolved through the submission of probative medical evidence from a physician). 

13 See K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019).
6

OWCP to reopen the claim for a merit review. Thus, appellant is also not entitled to a review of 

the merits of her claim based on the third above-noted requirement under section 10.606(b)(3).

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.14

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 December 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

14 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006).