United States Department of Labor

Employees’ Compensation Appeals Board

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R.G., Appellant

and

U.S. POSTAL SERVICE, SOUTH FLORIDA 

LOGISTICS & DISTRIBUTION CENTER, 

Opa-Locka, FL, Employer

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Docket No. 21-0098

Issued: May 19, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 29, 2020 appellant filed a timely appeal from a June 3, 2020 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days have elapsed 

since OWCP’s last merit decision, dated May 15, 2019, 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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, he asserted that oral argument should be granted to fully flesh out his 

argument that he was entitled to total disability compensation and that the opinion of a second opinion physician did 

not constitute the weight of the medical opinion evidence. The Board, in exercising its discretion, denies appellant’s 

request for oral argument because the Board does not have jurisdiction over the merits of the case and the arguments 

on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal 

would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request 

is denied and this decision is based on the case record as submitted to the Board.

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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On January 1, 2013 appellant, a 54-year-old mail handler equipment operator, filed a 

traumatic injury claim (Form CA-1) alleging that on December 31, 2012 he injured his lower back 

when he off-loaded wire cages from a tow motor while in the performance of duty. On May 28, 

2013 OWCP accepted the claim for displacement of lumbar intervertebral disc without 

myelopathy. By decision dated December 17, 2014, it denied appellant’s claim for wage-loss 

compensation for the period commencing May 17, 2014 and continuing. In a February 25, 2015 

decision, OWCP terminated his wage-loss compensation and medical benefits, effective that date, 

finding that the medical evidence of record established that he had no ongoing medical residuals 

or disability due to his accepted condition. An OWCP hearing representative, in an October 13, 

2015 decision, affirmed the December 17, 2014 decision denying wage-loss compensation. By a 

subsequent decision dated January 6, 2016, a second OWCP’s hearing representative affirmed the 

February 25, 2015 termination decision. In a decision issued on January 6, 2017, OWCP affirmed 

in part and modified in the part the October 13, 2015 decision affirming the denial of wage-loss 

compensation. It determined that appellant was entitled to wage-loss compensation for attending 

medical appointments during the period May 8 through September 18, 2014. However, OWCP 

affirmed the decision regarding his claim for disability compensation from May 17, 2014 and 

continuing, finding that the medical evidence of record failed to sufficiently support a causal 

relationship between his inability to work during the above period and his accepted December 31, 

2012 employment injury. In decisions dated March 29, 2017 and April 3, 2018, it denied 

modification of the January 6, 2016 termination decision. OWCP, in a decision issued on 

September 6, 2018, denied appellant’s March 26, 2018 request for reconsideration of the merits of 

his claim pursuant to 5 U.S.C. § 8128(a) pertaining to the termination of his wage-loss 

compensation and medical benefits. In a decision dated May 15, 2019, it denied modification of 

the April 3, 2018 decision which affirmed the termination of his compensation benefits.

On May 11, 2020 appellant requested reconsideration of the May 15, 2019 decision which 

affirmed the termination of his wage-loss compensation and medical benefits. In an accompanying 

letter dated May 2, 2020, he asserted that he was totally disabled. Appellant further asserted that 

OWCP failed to follow its procedures as it failed to provide written notice of the proposed 

termination of his compensation benefits that included specific evidence used as the basis for the 

determination, and 30 days to respond to the proposed action.

In support of his reconsideration request, appellant sent several provisions from Title 20 of 

the Code of Federal Regulations (C.F.R.) which defined the term disability and described the 

circumstances under which OWCP may reduce or terminate FECA compensation benefits. 

He also submitted a December 4, 2017 award letter from the Social Security Administration (SSA) 

which indicated that he was totally disabled and received disability benefits under SSA beginning 

in April 2016.
3

Additionally, appellant submitted an August 29, 2014 benefit statement from the U.S. 

Department of Labor (DOL) that was previously of record. He further submitted copies of a Board 

decision to support his contention that OWCP has the burden of proof to terminate his 

compensation benefits, and OWCP’s May 15, 2019 decision denying modification of its decision 

to terminate his compensation benefits.

OWCP, by decision dated June 3, 2020, denied appellant’s request for reconsideration of 

the merits of his 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. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.3

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.4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, 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

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).

 

3

Id. at § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued 

February 11, 2019); W.C., 59 ECAB 372 (2008).

4 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).

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

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see B.S., Docket No. 20-0761 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
4

Appellant’s timely May 11, 2020 request for reconsideration does not demonstrate that 

OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board finds 

that he did not advance a relevant legal argument not previously considered by OWCP. On

reconsideration appellant contended that he continued to be totally disabled due to his accepted 

employment injury and that OWCP failed to follow its procedures as it did not provide written 

notice of the proposed termination of his compensation benefits that included specific evidence 

used as the basis for the determination, and 30 days to respond to the proposed action. The Board 

notes, however, that OWCP issued a January 7, 2015 notice of proposed termination of his wageloss compensation and medical benefits, finding that the weight of the medical evidence of record 

rested with a December 1, 2014 medical opinion of Dr. Peter J. Millheiser, a Board-certified 

orthopedic surgeon and OWCP referral physician, that appellant no longer suffered from any 

residuals or continuing disability from work due to appellant’s December 31, 2012 employment 

injury. Dr. Millheiser also advised that appellant could return to his regular work duties with no 

restrictions. OWCP afforded appellant 30 days to submit additional evidence to refute the 

proposed termination of benefits. Following the submission of additional medical evidence, 

OWCP, in a February 25, 2015 decision, finalized the termination of his wage-loss compensation 

and medical benefits effective that date. Consequently, appellant is not entitled to a review of the

merits of his claim based on the first and second above-noted requirements under section 

10.606(b)(3). 

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered by OWCP in support of his reconsideration request under 20 C.F.R. 

§ 10.606(b)(3). As noted, OWCP previously terminated appellant’s wage-loss compensation and 

medical benefits, effective February 25, 2015, based on Dr. Millheiser’s second opinion that 

appellant no longer had continuing employment-related residuals or disability. In support of his 

reconsideration request, appellant submitted new evidence which included several provisions from 

Title 20 of the Code of Federal Regulations which defined the term disability and described the 

circumstances under which OWCP may reduce or termination FECA compensation benefits. He

also submitted a December 4, 2017 award letter from the SSA which indicated that he was totally 

disabled and received disability payments beginning in April 2016. This evidence is not relevant 

to the underlying medical issue in this case of whether appellant had continuing residuals or 

disability causally related to the December 31, 2102 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.8 As such, this evidence does not require reopening of 

appellant’s claim for review on the merits.

Appellant also resubmitted an August 29, 2014 DOL benefit statement. Additionally, he 

submitted copies of a Board decision and OWCP’s May 15, 2019 decision, which are part of the 

claim record. The Board has held that evidence that repeats or duplicates evidence already in the 

case record, has no evidentiary value, and does not constitute a basis for reopening a case.9 As 

 

8 Y.L., Docket No. 20-1025 (issued November 25, 2020); E.W., Docket No. 19-1393 (issued January 29, 2020);

R.R., Docket No. 18-1562 (issued February 22, 2019); K.B., Docket No. 18-1392 (issued January 15, 2019).

9

J.V., Docket No. 19-0990 (issued August 26, 2020); D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., 

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

appellant did not provide relevant and pertinent evidence, he is not entitled to a merit review based 

on the third requirement under 20 C.F.R. § 10.606(b)(3).10

The Board, accordingly, finds that appellant did not meet 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.11

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).

 

10 See S.V., Docket No. 20-1309 (issued December 22, 2020); C.C., Docket No. 20-0950 (issued October 29, 2020).

11 D.G., Docket No. 19-1348 (issued December 2, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the June 3, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 19, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board