United States Department of Labor

Employees’ Compensation Appeals Board

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S.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Aurora, IL, Employer

__________________________________________

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Docket No. 18-1734

Issued: March 12, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 19, 2018 appellant filed a timely appeal from a May 3, 2018 nonmerit 

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

elapsed since the last merit decision, dated December 15, 2017, 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 to review the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional following the May 3, 2018 decision. 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

On July 6, 2017 appellant, then a 56-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on April 1, 2017 she injured her hands, arms, back, and knees pushing 

a mail dolly while in the performance of duty. On the reverse side of the claim form, the employing 

establishment indicated that she stopped work on April 2, 2017, and had not yet returned.3

In a letter dated May 26, 2017, Dr. Eugene P. Lopez, Board-certified in orthopedic sports 

medicine and orthopedic surgery, indicated that appellant’s physical examination revealed that she 

walked with an antalgic gait and had various deformities of her knee. He related that on July 23, 

2014 the employing establishment offered her a modified assignment for limited duties which 

included sedentary work, and no physical requirements, due to her accepted injuries. Dr. Lopez 

further noted that on March 30, 2017 the employing establishment modified appellant’s duties 

again to include physical tasks which had been previously restricted.

In a statement dated June 26, 2017, appellant indicated that on April 1, 2017 she was 

assigned new duties which included working the flats sequencing system (FSS) machine, prepping 

mail, removing dollies that weighed in excess of 270 pounds when empty and 690 pounds when 

full, and grooming mail converters. She noted that she was in a lot of pain all day due to these 

modified duties.

In a letter dated June 30, 2017, Dr. Lopez noted that appellant sustained employmentrelated injuries because of new job duties she was expected to perform. He indicated that her job 

duties required prepping mail, using dollies, loading containers, lifting greater than 20 pounds, 

reaching above her shoulders, fine manipulation, twisting, turning, bending, sitting, standing, and 

pushing and pulling. Dr. Lopez diagnosed employment-related bilateral knee osteoarthritis.

By development letter dated July 21, 2017, OWCP informed appellant that the evidence 

received was insufficient to establish her claim because the medical evidence of record neither 

provided a diagnosis of a medical condition, nor a physician’s opinion as to how the alleged 

employment incident caused a diagnosed condition. It afforded her 30 days to submit the necessary 

evidence.

In an attending physician’s report (Form CA-20) and accompanying letter dated August 2, 

2017, Dr. Lopez indicated that appellant suffered a preexisting employment-related injury. He 

related that, based on x-rays, appellant had bilateral knee osteoarthritis and bilateral carpal tunnel 

syndrome aggravated by her repetitive job duties. Dr. Lopez noted that appellant had been

 

3 The record reflects that OWCP accepted an August 20, 2009 claim for carpal tunnel syndrome and bilateral leg 

osteoarthritis under OWCP File No. xxxxxx498. Appellant also filed a notice of recurrence on April 7, 2017 alleging 

a worsening of her accepted conditions under OWCP File No. xxxxxx498.
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partially disabled since April 6, 2017. He indicated that appellant was able to resume light work 

with restrictions on April 6, 2017.

By decision dated August 24, 2017, OWCP denied appellant’s claim finding that she had 

not met her burden of proof to establish that her diagnosed medical conditions were causally 

related to her accepted employment incident.

On October 3, 2017 appellant requested reconsideration of OWCP’s August 24, 2017 

decision.

With her request, appellant submitted a narrative report, dated September 20, 2017, from

Dr. Florian Miranzadeh, Board-certified in family medicine and osteopathic manipulative 

medicine. Upon examination and review of appellant’s medical record, Dr. Miranzadeh diagnosed 

bilateral arm and shoulder pain secondary to an employment-related injury on April 1, 2017. He 

related that appellant’s medical history contained other diagnoses of bilateral carpal tunnel 

syndrome, back sprain, and bilateral knee osteoarthritis, but he indicated that he did not have 

enough information regarding these diagnoses. Dr. Miranzadeh noted that her mechanism of 

injury was consistent with her medical history and present condition.

By decision dated December 15, 2017, OWCP denied modification of its August 24, 2017 

decision. It related that the evidence submitted was insufficient to modify the August 24, 2017 

decision.

On April 13, 2018 appellant requested reconsideration of OWCP’s December 15, 2017 

decision. She submitted an electromyography (EMG) report dated April 10, 2017 from

Dr. Manish Kapadia, a neurologist, along with her reconsideration request.

By decision dated May 3, 2018, OWCP found that the evidence of record was insufficient 

to warrant review of the merits of the claim as the evidence submitted was irrelevant or immaterial 

and thus had no bearing on the issue of causal relationship.

LEGAL PRECEDENT

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

it will review an award for or against compensation, either under its own authority or on application 

by a claimant.4

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review of 

 

4 5 U.S.C. § 8128(a).

5

Id.

6 20 C.F.R. § 10.606(b)(3).
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an OWCP decision denying or terminating a benefit, a claimant’s application for review must be 

received within one year of the date of that decision.7 When a claimant fails to meet one of the 

above standards, OWCP will deny the application for reconsideration without reopening the case 

for review on the merits.8

In support of a request for reconsideration, a claimant is not required to submit all evidence 

which may be necessary to discharge his or her burden of proof.9 He or she needs only to submit 

relevant, pertinent evidence not previously considered by OWCP.10 When reviewing an OWCP 

decision denying a 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.11

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).

The Board finds that appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument 

not previously considered. As such, she 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).

In support of her April 13, 2018 reconsideration request, appellant submitted an EMG 

report dated April 10, 2017 from Dr. Kapadia. A claimant may be entitled to a merit review by 

submitting relevant and pertinent new evidence, but she did not submit such evidence in this case.12 

The underlying issue in this case is whether appellant has provided sufficient evidence to meet her 

burden of proof to establish that her diagnosed medical conditions were causally related to her 

accepted work event. Diagnostic studies lack probative value as they do not address whether an 

employment incident caused a diagnosed condition.13 Dr. Kapadia’s diagnostic report does not 

require merit review because it is irrelevant and immaterial and has no bearing on the issue of 

causal relationship.14 Appellant is therefore not entitled to a review of the merits of her claim 

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

 

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9 P.L., Docket No. 18-1145 (issued January 4, 2019); Helen E. Tschantz, 39 ECAB 1382 (1988).

10 P.L., id.; see Mark H. Dever, 53 ECAB 710 (2002).

11 P.L., supra note 9; Annette Louise, 54 ECAB 783 (2003).

12 S.S., Docket No. 18-0647 (issued October 15, 2018).

13 See J.S., Docket No. 17-1039 (issued October 6, 2017).

14 G.C., Docket No. 18-0506 (issued August 15, 2018).
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The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3) and thus OWCP properly denied merit review. 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 her claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).