United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Morrilton, AR, Employer

__________________________________________

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Docket No. 19-1498

Issued: January 9, 2020

Appearances: Case Submitted on the Record

Hilary Rippenkroeger, Esq., for the appellant1

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 July 3, 2019 appellant, through counsel, filed a timely appeal from a February 1, 2019 

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

days has elapsed from OWCP’s last merit decision, dated December 13, 2017, to 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.

 

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 5 U.S.C. § 8101 et seq.
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

On March 17, 2017 appellant, then a 52-year-old regular rural carrier, filed a traumatic 

injury claim (Form CA-1) alleging that, on the same date, she sustained injury when her postal 

vehicle ran into a light pole on the side of the road when she was delivering mail while in the 

performance of duty. OWCP accepted her claim for left shoulder and left elbow contusions. 

Appellant stopped work on April 29, 2017 and later filed a claim for wage-loss 

compensation benefits (Form CA-7) for the period April 29 through September 1, 2017.

In support of her claim for wage-loss compensation benefits, appellant submitted several

medical reports including a March 20, 2017 report from Dr. Peter J. Post, a Board-certified family 

practitioner, who noted that she reported running off the road at work on March 17, 2017 and 

hitting a light pole. Dr. Post detailed physical examination findings and diagnosed contusions of 

the left shoulder and left elbow, and of an “unspecified knee.” He opined that appellant could 

return to work on March 25, 2017. In an April 13, 2017 report, Dr. Post diagnosed left knee pain 

and noted that he was referring appellant for an orthopedic evaluation. 

Appellant submitted other reports from this period, including April 25 and May 16, 2017 

reports from Dr. Grant W. Bennett, a Board-certified orthopedic surgeon. Dr. Bennett detailed 

appellant’s reporting of the March 17, 2017 accident and diagnosed left knee contusion, 

fibromyalgia, lumbago, bilateral lower extremity radiculopathy, and possible lumbar facet 

arthropathy. Appellant also submitted a number of diagnostic testing reports and follow-up 

treatment reports from Dr. Bennett which primarily concerned her back and lower extremities. 

By decision dated December 13, 2017, OWCP denied appellant’s claim finding that she 

had not submitted sufficient medical evidence to establish entitlement to wage-loss compensation 

benefits for the period April 29 through September 1, 2017. 

On May 16, 2018 appellant, through counsel, requested reconsideration of the 

December 13, 2017 decision. In support of this request, appellant submitted reports from her 

emergency room visit on March 17, 2017. 

By decision dated August 1, 2018, OWCP denied appellant’s request for reconsideration 

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

On December 12, 2018 appellant, through counsel, again requested reconsideration. 

Appellant submitted an October 24, 2017 report from Dr. Bennett who noted that she presented 

for a follow-up examination relating to her complaints of left knee and lower back pain.3 

 

3 Dr. Bennett listed a date of injury/onset for the knee as March 17, 2017 and a date of injury/onset for the lower 

back as an unspecified date in April 2017.
3

Dr. Bennett indicated that, upon physical examination, appellant’s affect was abnormal with 

subjective testing changes and that she had full range of motion of her left knee. He diagnosed 

chronic lumbago with radiculopathy, fibromyalgia, and left knee pain.

In a March 21, 2018 report, Dr. Bennett indicated that appellant returned for a follow-up 

examination of her left knee. He provided the same diagnoses listed in his October 24, 2017 report 

and added the diagnosis psychological abnormalities. Dr. Bennett advised that appellant’s pain 

would not prevent her from working, including engaging in mail delivery.

Appellant also resubmitted March 20 and April 13, 2017 reports from Dr. Post. 

By decision dated February 1, 2019, OWCP denied appellant’s request for reconsideration 

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

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.4 

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.5 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.6 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.7

To be timely, a request for reconsideration must be received by OWCP within one year of 

the date of OWCP’s decision for which review is sought.8 Timeliness is determined by the 

document “received date” as recorded in the iIntegrated Federal Employees’ Compensation 

System (iFECS).9 If the last day of the one-year time period is a Saturday, Sunday, or a legal 

 

4 5 U.S.C. § 8128(a).

5 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).

6

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

7

Id. at § 10.608(b); L.S., Docket No. 18-0858 (issued November 19, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

8 20 C.F.R. § 10.607(a). 

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
4

holiday, OWCP will still consider a request to be timely filed if it is received on the next business 

day.10

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

evidence or argument already in the case record11 and the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case.12 

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).

Appellant filed a timely request for reconsideration on December 12, 2018,

13 but she did 

not establish that OWCP erroneously applied or interpreted a specific point of law, or advance a 

relevant legal argument not previously considered by OWCP. Accordingly, the Board finds that 

appellant is not entitled to a review of the merits based on either the first or second requirement 

under 20 C.F.R. § 10.606(b)(3).14

In support of her request for reconsideration, appellant submitted October 24, 2017 and 

March 21, 2018 reports from Dr. Bennett who noted appellant’s complaints of left knee and back 

pain. The reports do not contain an opinion that she had disability causally related to an 

employment-related injury. While this medical evidence submitted by appellant was new, it was 

not relevant because it did not directly address the underlying issue of the present case, i.e., whether 

she had disability for the period April 29 through September 1, 2017 causally related to her 

March 17, 2017 employment injury. The Board has held that the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.15

Appellant also submitted March 20 and April 13, 2017 reports from Dr. Post which had 

previously been submitted and considered by OWCP. However, the submission of this evidence 

does not require reopening of appellant’s case for review on the merits as the Board has held that 

the submission of evidence or argument which repeats or duplicates evidence or argument already 

in the case record does not constitute a basis for reopening a case.16 

 

10 Id. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

11 N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

12 M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13 See supra note 8; J.F., Docket No. 16-1233 (issued November 23, 2016).

14 See supra note 5.

15 See supra note 12.

16 See supra note 11.
5

Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R. 

§ 10.606(b)(3).17

On appeal counsel argues that the evidence appellant submitted upon reconsideration 

required reopening of her claim for review on the merits. However, the Board has explained that 

the submitted evidence was insufficient to require such reopening of her claim given its failure to 

meet the requirements of 20 C.F.R. § 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). OWCP properly denied merit review.18

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 February 1, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 9, 2020

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

 

17 See supra note 5.

18 See supra notes 5 through 7.