United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Clifton Park, NY, Employer

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Docket No. 20-0166

Issued: May 14, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 16, 2019 appellant filed a timely appeal from May 28 and September 16, 2019 

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

180 days has elapsed from OWCP’s last merit decision, dated October 22, 2018, 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 over the merits of this case.2

 

1 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 requests for reconsideration of the 

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

FACTUAL HISTORY

On August 31, 2001 appellant, then a 54-year-old postal carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 30, 2001 he sustained injuries to his left arm, chest, 

lower side of his abdomen, right knee, and both legs when another vehicle struck the front left side 

of his work vehicle while in the performance of duty. He did not stop work. OWCP accepted the 

claim for abdominal contusion and abdominal strain. It paid appellant wage-loss compensation on 

the supplemental rolls as of February 13, 2002 and on the periodic rolls as of November 18, 2012.

OWCP referred appellant for a second opinion evaluation on July 5, 2007 to determine the 

status of his accepted conditions. In a July 24, 2007 report, Dr. Patrick J. Hughes, a Boardcertified neurologist, OWCP’s second opinion physician, noted that appellant continued to 

experience headaches and dizziness, which had not resolved. He opined that appellant was not fit 

for regular duty as a rural carrier and that appellant’s disability was due to the work injury of 

August 30, 2001. Dr. Hughes noted that appellant had reached maximum medical improvement 

(MMI) and opined that, because appellant continued with headaches and dizziness over the course 

of five years, the symptoms would persist.3

On September 4, 2008 OWCP expanded the acceptance of the claim to include lumbar 

radiculopathy and on September 30, 2010 OWCP expanded the acceptance of the claim to include 

post-traumatic headache due to a fall. 

In an October 7, 2016 report, Dr. Surinder Jindal, a clinical neurophysiologist and treating 

physician, related that appellant had history of post-traumatic headaches, head trauma, and 

subdural evacuation. He noted that appellant’s current neurologic examination was within normal 

limits. Dr. Jindal provided a duty status report (Form CA-17) advising that appellant could not 

perform regular work due to headaches, and recommended restrictions of no more than 5 pounds 

continuous lifting or 10 pounds intermittent lifting, no climbing and limited hours of standing, 

walking, kneeling, bending/stooping, twisting, pulling/pushing, reaching above the shoulder, and 

driving. 

In a January 31, 2017 second opinion report, Dr. Hughes reviewed an updated statement 

of accepted facts and appellant’s medical record. He examined appellant and opined that the 

accepted work-related conditions of abdominal contusion, abdominal strain, lumbar radiculopathy,

and post-traumatic headache were no longer active, based on a normal examination. Dr. Hughes 

explained that there were “no objective findings on neurological examination to substantiate 

continuing complaints of headaches and back pain” and “no objective findings of radiculopathy.” 

He advised that no further testing or treatment was necessary and there was no disability due to 

 

3 On June 18, 2008 appellant accepted a modified job offer. He stopped work again in November 2011. 
3

the work injury of August 30, 2001. Dr. Hughes completed a work capacity evaluation (Form 

OWCP-5c) and opined that appellant could perform his usual job without restriction.

OWCP continued to receive progress reports from Dr. Jindal. In a report dated July 20, 

2017, Dr. Jindal noted that appellant had a history of closed-head trauma, with headaches, and 

dizziness. He related that appellant had a normal neurologic examination, except that sensory 

examination revealed decreased sensation in the C5-6 distribution. Dr. Jindal related a clinical 

impression of head trauma with post-traumatic headaches, and status post craniotomy. He 

recommended pain medication as needed for headaches. Dr. Jindal completed another duty status 

report (Form CA-17) on July 21, 2017 wherein he continued appellant’s work restrictions due to 

headaches. 

On August 30, 2017 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits, finding that the weight of the medical evidence of record 

established that he no longer suffered from any residuals or continuing disability as a result of his 

August 30, 2001 employment injury. It afforded him 30 days to submit additional evidence to 

refute the proposed termination of benefits. 

In a report dated September 28, 2017, Dr. Jindal repeated appellant’s history of headaches 

and back pain. He related that on neurologic examination appellant had reduced motor strength in 

the left leg, compared to the right leg, decreased sensation in the L5-S1 distribution, tenderness 

and spasm in the paraspinal lumbosacral muscles, and reduced left leg raising. Dr. Jindal again 

related a clinical impression of head trauma, post-traumatic headaches, and craniotomy. He 

recommended pain medication as needed and restricted activity. In a report dated October 11, 

2017, Dr. Jindal again repeated appellant’s history of injury and his clinical impression. He further 

related that appellant continued treatment for chronic headaches and dizziness, which were

causally related to appellant’s August 30, 2001 employment injury, and that his prognosis was 

poor. On October 11, 2017 Dr. Jindal again completed a duty status report (Form CA 17) wherein 

he continued appellant’s work restrictions due to post-traumatic headaches. 

By decision dated October 26, 2017, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date, based on Dr. Hughes’ opinion that the 

accepted conditions had resolved. 

On November 14, 2017 appellant requested a review of the written record by a

representative of OWCP’s Branch of Hearings and Review.

By decision dated March 15, 2018, an OWCP hearing representative affirmed the 

October 26, 2017 termination decision.

On June 13, 2018 appellant requested reconsideration. By decision dated June 19, 2018, 

OWCP denied modification of the October 26, 2017 decision. 

On June 22 and July 24, 2018 appellant requested reconsideration. In letters dated July 24 

and September 4 and 22, 2018, he continued to object to Dr. Hughes’ findings and referenced 

reports from appellant’s treating physician. In an October 9, 2018 letter to OWCP, appellant

repeated his prior arguments and noted that an administrative law judge had declared him disabled 
4

on June 1, 2005. By decision dated October 22, 2018, OWCP denied modification of the June 19, 

2018 decision. 

On November 5 and December 17, 2018 appellant requested reconsideration and again 

summarized medical reports from his treating physicians. In a letter dated January 26, 2019, he

argued that the July 24, 2007 and January 31, 2017 reports from Dr. Hughes were contradictory as

Dr. Hughes had opined in 2007 that appellant had reached MMI and that appellant’s physical 

restrictions were “indefinite.” By decision dated February 21, 2019, OWCP denied appellant’s 

request for reconsideration of the merits of his claim. 

On April 11, 2019 appellant again requested reconsideration, arguing that Dr. Hughes’

July 24, 2007 report supported that he was unable to return to full duty as a mail carrier. He 

resubmitted portions of Dr. Hughes’ July 24, 2007 second opinion report. 

By decision dated May 28, 2019, OWCP denied appellant’s April 12, 2019 request for 

reconsideration of the merits of his claim. 

On May 31, 2019 appellant again requested reconsideration. He repeated his arguments

that Dr. Hughes’ July 24, 2007 report was contradictory to his January 31, 2017 report, and other 

physicians had found that appellant was unable to perform his job duties. In a June 14, 2019 letter,

appellant related that OPM had determined that he was disabled from work. He submitted a June 7, 

2019 letter from OPM, which found him disabled from his position as a rural carrier. In a letter 

dated August 6, 2019, appellant again alleged that an administrative judge had found him disabled 

on June 1, 2005 and the employing establishment had accepted this decision. 

By decision dated September 16, 2019, OWCP denied appellant’s May 31, 2019 request 

for reconsideration of the merits of his claim. It found that he had not established that OWCP 

erroneously applied or interpreted a specific point of law and had not advanced a relevant legal 

argument not previously considered. 

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.4

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 

 

4 5 U.S.C. § 8128(a); see J.C., Docket No. 19-0640 (issued September 10, 2020); 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).
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OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.5

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

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 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.8

ANALYSIS

The Board finds that OWCP properly denied appellant’s requests for reconsideration of the 

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

In his April 12 and May 31, 2019 requests for reconsideration, appellant argued that the 

July 24, 2007 and January 31, 2017 reports from Dr. Hughes were contradictory as he had opined 

in 2007 that appellant had reached MMI and that appellant’s physical restrictions were 

“indefinite.” He also argued again that his treating physicians concluded that he was unable to 

perform his job duties because of his accepted conditions. However, the Board notes that these 

arguments were considered by OWCP in prior merit reviews of the evidence. The Board has held 

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

already in the case record does not constitute a basis for reopening a case.9 Thus, appellant is not 

entitled to a review of the merits based on the first and second requirements under 20 C.F.R. 

§ 10.606(b)(3).10

In support of his April 12 and May 31, 2019 reconsideration requests, appellant

resubmitted a copy of the July 24, 2007 report from Dr. Hughes. However, since this report was 

 

5 20 C.F.R. § 10.606(b)(3); G.J., Docket No. 19-1652 (issued January 29, 2021); see J.W., Docket No. 19-1795 

(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

6

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.

7

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

8

Id. at § 10.608(b); see C.L., Docket No. 20-0385 (issued August 5, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

9 See M.P., Docket No. 20-0814 (issued January 26, 2021); A.M., Docket No. 17-1192 (issued September 19, 2018); 

R.H., Docket No. 17-0876 (issued November 21, 2017); Richard A. Neidert, 57 ECAB 474 (2006).

10 20 C.F.R. § 10.606(b)(3); P.W., Docket No. 20-0380 (issued November 23, 2020); B.R., Docket No. 19-0372 

(issued February 20, 2020); L.G., Docket No. 09-1517 (issued March 3, 2010).
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previously considered, it does not constitute a basis for reopening a case for merit review.11 OWCP 

also received a letter from OPM dated June 7, 2019, which approved appellant’s request for 

disability retirement. This document, however, is irrelevant to the underlying issue of whether 

appellant had ongoing residuals or disability due to his accepted conditions.12 Because appellant 

has not provided relevant and pertinent new evidence, he was not entitled to a review of the merits 

based on the third requirement under 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).13 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.14

CONCLUSION

The Board finds that OWCP properly denied appellant’s requests for reconsideration of the 

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

ORDER

IT IS HEREBY ORDERED THAT the September 16 and May 28, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: May 14, 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

 

11 C.L., Docket No. 20-0410 (issued October 29, 2020); S.F., Docket No. 18-0516 (issued February 21, 2020); 

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

12 Furthermore, the Board has held that the findings of other government agencies are not dispositive with regard 

to questions arising under FECA. See A.B., Docket No. 10-2108 (issued July 13, 2011); Ernest J. Malagrida, 51 

ECAB 287, 291 (2000).

13 Supra note 9.

14 See K.T., Docket No. 18-0927 (issued May 13, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020).