United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

U.S. POSTAL SERVICE, ALLEN POST 

OFFICE, Allen, TX, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0248

Issued: June 27, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 3, 2021 appellant, through counsel, filed a timely appeal from a November 8, 

2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant 

to the Federal Employees’ Compensation Act (FECA)3 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 Counsel identified only the November 8, 2021 nonmerit decision on the application for review (AB-1 Form). As 

such, the August9, 2021 merit decision is not before the Board on the current appeal. See20 C.F.R. § 501.3; see also 

M.M., Docket No. 20-0523 (issued August 25, 2020).

3

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

This case has previously been before the Board on a different issue.

4

 The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The relevant facts are as follows.

On February 13, 2017 appellant, then a 40-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed right shoulder and neck pain due to factors 

of her federal employment which required continual use of the right upper extremity. She indicated 

that she first became aware of her condition on January 15, 2017, and first realized that it was

caused or aggravated by her federal employment on February 8, 2017. Appellant stopped work 

on February 13, 2017.

By decision dated April 7, 2017, OWCP accepted the claim for cervical disc disorder with 

radiculopathy (mid-cervical region), sprain of right rotator cuff capsule, strain of muscle(s) and 

tendon(s) of the rotator cuff of right shoulder, sprain of ligaments of cervical spine, strain of 

muscle, fascia, and tendon at neck level, cervical spinal stenosis, and cervical spondylosis with 

radiculopathy.5 It authorized spinal fusion at C4 through C7, which appellant underwent on 

April 3, 2018. OWCP paid her wage-loss compensation on the supplemental rolls as of April 3, 

2018 and on the periodic rolls as of September 16, 2018.

In a letter dated June 8, 2020, OWCP advised appellant that it had assigned a vocational 

rehabilitation counselor to assist her to return to suitable employment.

In a July 6, 2020 summary of contacts, the vocational rehabilitation counselor noted that 

appellant had related that she had no vocational goals as she was very busy raising two adopted 

children with special needs. Appellant also noted that she had been selling clothing through an 

online website.

In an August 21, 2020 summary of contacts, the vocational rehabilitation counselor noted 

that appellant indicated that she was not prepared to return to the workforce, she had no vocational, 

career, or educational goals, and when asked about returning to modified duty at the employing 

establishment, she stated that she had put that part of her life behind her.

4 Docket No. 18-1537 (issued June20, 2019).

5 Appellant filed a claim for compensation (Form CA-7) for disability for the period February 13 through 

March 31, 2017. By decision dated August8, 2017, OWCP denied appellant’s disability claim. By decision dated 

April 30, 2018, OWCP’s hearing representative affirmed the April 8, 2017 decision. By decision dated June 20, 2019, 

the Board found that appellant had not met her burden of proof to establish that she was disabled for the period 

February13 through March 31, 2017, causally related to her accepted right shoulder and cervical conditions. Id. 
3

In a January 25, 2021 closure report, the rehabilitation counselor advised that appellant had 

not responded to letters requesting that she contact OWCP to explore rehabilitation services. The 

report also noted that appellant had not answered or returned calls placed to her on September 8, 

11, 15, and 21, and October 13, 2020, and despite numerous attempts, the rehabilitation counselor 

had not heard from her since August 27, 2020.

On February 19, 2021 OWCP informed appellant that it had closed her case for vocational

rehabilitation services. It provided a constructed loss of wage-earning capacity (LWEC) 

memorandum, recommending a constructed LWEC, because appellant had not fully cooperated

with the reemployment efforts.

In a letter dated February 24, 2021, OWCP advised appellant that the vocational 

rehabilitation counselor indicated that she had refused to cooperate in the development of a 

rehabilitation effort. It noted that the vocational rehabilitation counselor advised that appellant 

had not responded to letters requesting that she contact OWCP to explore possible rehabilitation 

services. OWCP also noted that appellant had not answered or returned calls placed to her on 

September 8, 11, 15, and 21, and October 13, 2020, and the vocational rehabilitation counselor 

had not heard from her since August 27, 2020. It further noted that during her meeting with the 

vocational rehabilitation counselor on August 19, 2020, appellant indicated that she was not 

prepared to return to the workforce, and she had no vocational, career, or educational goals. When 

asked about returning to modified duty at the employing establishment, she replied that she had 

put that part of her life behind her. OWCP explained that the medical evidence supported that 

appellant had the ability to obtain employment as a collection clerk earning wages of $625.60 per 

week. It explained that pursuant to 5 U.S.C. § 8113(b), if an individual without good cause fails 

to undergo vocational rehabilitation when so directed, and OWCP finds that, in the absence of the 

failure the individual’s wage-earning capacity would probably have substantially increased, it may 

reduce prospectively the compensation based on what probably would have been the individual’s 

wage-earning capacity had he or she not failed to undergo vocational rehabilitation. OWCP

afforded appellant 30 days to contact the vocational rehabilitation counselor and participate in the 

rehabilitation effort or to provide good reasons for noncompliance.

In a March 4, 2021 statement, appellant related that she had sold clothing online since 

June 2017, but due to low sales during the past yearshe was no longer doing so. She also explained 

that she had been homeschooling both of her children for the past four years, and they were adopted 

from overseas with medical and behavioral issues. Appellant noted that she had informed her 

vocational rehabilitation counselor about her family situation. She indicated that she did not wish 

to seek other employment outside of her home, because this would not meet her children’s needs.

Appellant concluded that caring for her children was a full-time job.

In a letter dated July 6, 2021, OWCP noted that the present letter superseded the 

February 24, 2021 letter and advised appellant that the vocational rehabilitation counselor 

indicated that she had refused to cooperate in the continued development of a rehabilitation effort. 

It noted that the vocational rehabilitation counselor advised that appellant had not responded to 

letters requesting that she contact OWCP to explore possible rehabilitation services, that she had 

not answered or returned calls placed to her on September 8, 11, 15, and 21, and October 13, 2020, 

and despite numerous attempts, the rehabilitation counselor had not heard from her since 

August 27, 2020. OWCP also noted that during her meeting with the vocational rehabilitation 
4

counselor on August 19, 2020, appellant indicated that she was not prepared to return to the 

workforce, she had no vocational, career, or educational goals, and when asked about returning to 

modified duty at the employing establishment, she stated that she had put that part of her life 

behind her. It noted that a full review of the file was made, and it was apparent that appellant had 

refused vocational rehabilitation, despite her ability to work, and had refused to sign the 

rehabilitation plan and award (OWCP-16). OWCP explained that, pursuant to 5 U.S.C. § 8113(b), 

if an individual without good cause fails to undergo vocational rehabilitation when so directed, 

and OWCP finds that, in the absence of the failure the individual’s wage-earning capacity would 

probably have substantially increased, it may reduce prospectively the compensation based on 

what probably would have been the individual’s wage-earning capacity had he or she not failed to 

undergo vocational rehabilitation. It further advised appellant: “Also, [s]ection 10.519 of Title 20 

of the Code of Federal Regulations provides that, if an individual without good cause fails or 

refuses to participate in the essential preparatory efforts as described above, OWCP will assume, 

in the absence of evidence to the contrary, that the vocational rehabilitation effort would have 

resulted in a return to work with no [LWEC], and compensation will be reduced accordingly. In 

effect, this will result in a reduction of compensation to zero.” OWCP afforded appellant 30 days 

to contact the vocational rehabilitation counselor and participate in the rehabilitation effort or to 

provide good reasons for noncompliance. Appellant did not respond.

By decision dated August 9, 2021, OWCP reduced appellant’s wage-loss compensation to 

zero pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective August 10, 2021, due to her 

failure to cooperate with vocational rehabilitation without good cause. It found that her failure to 

undergo the essential preparatory effort of vocational testing did not permit OWCP to determine 

what would have been her wage-earning capacity had she undergone the testing and rehabilitation 

effort. OWCP also advised appellant that this reduction of compensation would continue until she 

participated in vocational testing in good faith, or showed good cause for not complying.

On October 29, 2021 appellant, through counsel, requested reconsideration and 

resubmitted her March 4, 2021 statement.

By decision dated November 8, 2021, OWCP denied appellant’s request for 

reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). It found that the 

evidence was repetitious and consisted of documentation previously considered.

LEGAL PRECEDENT

Section 8128(a) of FECA6 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. 7

6

5 U.S.C. § 8128(a).

7

Id.; see A.N., Docket No. 20-1487 (issued March 19, 2021); L.D., Docket No. 18-1468 (issued February 11, 2019); 

see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); 

W.C., 59 ECAB 372 (2008).
5

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.8

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

OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.10 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.

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).

In her reconsideration request, appellant, through counsel, did not show that OWCP 

erroneously applied or interpreted a specific point of law and did not advance a new and relevant 

legal argument not previously considered. Consequently, appellant was not entitled to a review of 

the merits based on the first and second above-noted requirements under 20 C.F.R 

§ 10.606(b)(3).12

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

not previously considered by OWCP. With her reconsideration request, counsel for appellant 

resubmitted the March 4, 2021 statement from appellant, which was previously of record and 

considered by OWCP in its August 9, 2021 decision. The Board has held that evidence or 

argument that repeats or duplicates evidence previously of record has no evidentiary value and 

8

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).

9

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 (September 2020). 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.

10 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

11 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

12 20 C.F.R. § 10.606(b)(3); see L.D., supra note 7; see also L.G., supra note 8; C.N., supranote 8.
6

does not constitute a basis for reopening a case.13 Thus, appellant is not entitled to a review based 

on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).14

Accordingly, the Board finds that appellant has not met any of the requirements 

enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied her request for reconsideration without reopening the case for review on the merits. 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).

13C.L., Docket No. 20-0410 (issued October 29, 2020); M.G., Docket No. 18-0654 (issued October 17, 2018); D.K., 

59 ECAB 141 (2007); Kenneth R. Mroczkowki, 40 ECAB 855 (1989); EugeneF. Butler, 36 ECAB 393 (1984).

14 20 C.F.R. § 10.606(b)(3); see L.D., supra note 7; K.F., Docket No. 19-1846 (issued November 3, 2020); T.H., 

Docket No. 18-1809 (issued May 23, 2019); Johnny L. Wilson, Docket No. 98-2536 (issued February 13, 2001); see 

also L.G., supra note 8; C.N., supranote 8.

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); SusanA. Filkins, 57 ECAB 630 (2006).
7

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 27, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board