United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 20-1480

Issued: April 7, 2021

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On August, 5, 2020 appellant, through counsel, filed a timely appeal from a May 8, 2020 

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

days has elapsed from OWCP’s last merit decision, dated October 3, 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 over 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 July 28, 2003 appellant, then a 51-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that she developed bilateral multiple crush syndrome, bilateral carpal 

tunnel syndrome, osteoarthritis, and exostoses of the right and left third metacarpal due to factors 

of her federal employment. She noted that she first became aware of her conditions on June 4, 

2002 and realized their relationship to her federal employment on June 4, 2003. Appellant stopped 

work on March 11, 2002. 

On August 4, 2004 OWCP accepted the claim for aggravation of bilateral carpal tunnel 

syndrome and aggravation of bilateral osteoarthritis of the hands. It paid appellant wage-loss 

compensation on the daily rolls from June 4, 2002 through October 30, 2004 and then on the 

periodic rolls commencing October 31, 2004. 

Appellant underwent OWCP-authorized left carpal tunnel release, flexor 

tenosynovectomy, and basal joint first carpometacarpal arthroplasty on February 28, 2006.

On September 1, 2016 OWCP referred appellant, a statement of accepted facts (SOAF), 

and a list of questions to Dr. Ludwig Licciardi, a Board-certified orthopedic surgeon, for a second 

opinion evaluation to determine whether appellant had any continuing disability arising from the 

accepted employment injuries. In a September 28, 2016 report, Dr. Licciardi provided physical 

examination findings and diagnosed bilateral osteoarthritis of the hands and bilateral carpal tunnel 

syndrome. He noted that appellant’s conditions were aggravated by her employment activities and 

were permanent. Dr. Licciardi opined that appellant could perform sedentary or light-duty work 

for four hours per day with permanent restrictions. He found that appellant had not yet reached 

maximum medical improvement (MMI) and that her conditions were permanent and progressive.

In a July 6, 2017 report, Dr. Seymour L. Edelstein, a Board-certified orthopedic surgeon, 

examined appellant and diagnosed bilateral carpal tunnel syndrome, flexor tendinitis and

triggering of the left second digit, and rupture of the ulnar sagittal band of the left fourth digit. He 

opined that appellant was not capable of working and had severe loss of sensation bilaterally. 

Dr. Edelstein noted that appellant’s conditions were aggravated by her employment activities and 

found that she was totally disabled from her position as a letter carrier.

On August 21, 2017 OWCP determined that a conflict of medical opinion existed between 

the treating physician, Dr. Edelstein, who indicated that appellant remained totally disabled from 

work due to the accepted conditions, and the second opinion physician, Dr. Licciardi, who advised 

that appellant could return to light-duty work with restrictions.

On August 24, 2017 OWCP referred appellant, along with a SOAF and the case record, for 

an impartial medical examination with Dr. Alan Crystal, a Board-certified orthopedic surgeon, to 
3

resolve the conflict of medical opinion regarding appellant’s continuing employment-related 

residuals and disability.

In a September 13, 2017 report, Dr. Crystal noted appellant’s history of injury and medical 

treatment. He conducted a physical examination and opined that appellant’s aggravation of 

bilateral carpal tunnel syndrome was temporary and had resolved. He found that appellant could 

work in a limited/light-duty position as a modified letter carrier. Dr. Crystal opined that appellant 

had reached MMI.

In addendum reports dated May 29 through December 3, 2018, Dr. Crystal clarified that 

appellant’s accepted employment injuries had resolved. He opined that appellant could only work 

four hours per day in a light-duty position because of her preexisting osteoarthritis of her hands.

Dr. Crystal further opined that appellant would suffer from aggravation of osteoarthritis if she 

returned to full-duty work.

On January 17, 2019 OWCP advised appellant that it proposed to terminate her entitlement 

to wage-loss compensation and medical benefits based on Dr. Crystal’s opinion that the accepted 

conditions had ceased without residuals or disability. It afforded her 30 days to submit additional 

evidence or argument challenging the proposed termination. 

In a letter dated February 12, 2019, counsel argued that Dr. Crystal’s December 3, 2018 

addendum report established that appellant was only capable of working four hours per day in a 

light-duty position. He resubmitted a July 6, 2017 report from Dr. Edelstein and asserted that it 

confirmed appellant’s continuing employment-related disability.

By decision dated February 27, 2019, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective February 28, 2019, based on the special weight 

accorded to Dr. Crystal as the IME.

OWCP subsequently received a January 31, 2019 report from Dr. Edelstein, who noted that 

appellant had severe loss of sensation and arthritis in her hands. Dr. Edelstein examined appellant 

and provided physical findings. 

On July 12, 2019 appellant, through counsel, requested reconsideration. Counsel asserted 

that Drs. Crystal, Licciardi, and Edelstein all found that appellant had a continuing employmentrelated disability. 

In a May 16, 2019 report, Dr. Edelstein noted that appellant was originally seen on June 4, 

2002 and noted that she had developed swelling of the left third digit as a result of a fall of 

approximately one year prior. He provided physical examination findings and diagnosed bilateral 

carpal tunnel syndrome, flexor tendinitis and triggering of the left second digit, and rupture of the 

ulnar sagittal band of the left fourth digit. Dr. Crystal again opined that appellant was totally 

disabled from her position as a letter carrier.

By decision dated October 3, 2019, OWCP denied modification of the February 27, 2019 

decision.
4

On April 29, 2020 appellant, through counsel, requested reconsideration. Counsel

resubmitted a May 16, 2019 report from Dr. Edelstein with a correction stating that appellant never 

fell at work. He again asserted that the medical evidence of record established that OWCP failed 

to meet its burden of proof to justify termination of appellant’s compensation and medical benefits. 

By decision dated May 8, 2020, 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. The Secretary of Labor may review an award for 

or against compensation, at any time, on his or her 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 her claim pursuant to 5 U.S.C. § 8128(a).

Appellant filed a timely request for reconsideration on April 29, 2020. In support of her 

request, counsel argued that the medical evidence of record established that appellant had a 

 

3 5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

4 20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569 

(issued December 9, 2008).

5

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020). 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 M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see J.V., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).
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continuing employment-related disability and that OWCP failed to meet its burden of proof to 

justify termination of her compensation and medical benefits. The Board finds that these 

arguments do not show that OWCP erroneously applied or interpreted a specific point of law, nor 

do they advance a relevant legal argument not previously considered by OWCP. Consequently, 

appellant is not entitled to further review of the merits of her claim based on either the first or 

second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8

Appellant also resubmitted a May 16, 2019 report from Dr. Edelstein with a correction 

stating that she never fell at work. While this correction is new, the report is substantially similar 

to the prior evidence of record. Providing additional medical evidence that either duplicates or is 

substantially similar to evidence of record does not constitute a basis for reopening a case.9 As 

appellant did not provide relevant and pertinent new evidence, she is not entitled to a merit review 

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

The Board therefore 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.11

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).

 

8 Supra note 4.

9 See B.S., Docket No. 20-0927 (issued January 29, 2021); Eugene F. Butler, 36 ECAB 393, 398 (1984).

10 S.H., Docket No. 19-1897 (issued April 21, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward 

Matthew Diekemper, 31 ECAB 224-25 (1979).

11 See C.M., Docket No. 19-1610 (issued October 27, 2020); A.K., Docket No. 09-2032 (issued August 3, 2010); 

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet 

at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits).
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ORDER

IT IS HEREBY ORDERED THAT the May 8, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board