T.K. and U.S. Postal Service, Rockwood Post Office (Board decision, May 8, 2025)

ECAB final decision. The Board affirmed OWCP's refusal to reopen the shoulder claim for merits reconsideration. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal carrier asked OWCP to reconsider a denied right shoulder injury claim. The Board found her request did not identify a new legal error or submit relevant new evidence addressing medical causation. It upheld OWCP's refusal to reopen the claim, without deciding the underlying injury claim again.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Denial of merits reconsideration affirmed.
• Key point: The new submissions did not address the causal issue that led to the earlier denial.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.K., Appellant
)
)
and ) Docket No. 23-0766
)
Issued: May 8, 2025
U.S. POSTAL SERVICE, ROCKWOOD POST )
OFFICE, Rockwood, TN, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 3, 2023 appellant, through counsel, filed a timely appeal from an April 24, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated December 17, 2021, 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.
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. 3 The facts and circumstances as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.

On October 28, 2021 appellant, then a 48-year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that on August 30, 2021, she injured her right shoulder when she lifted a heavy package while in the performance of duty.

An October 7, 2021 magnetic resonance imaging (MRI) scan of appellant’s right shoulder revealed findings of full-thickness tear of the distal anterior to mid fibers of the supraspinatus tendon, linear interstitial tear of the infraspinatus tendon, small fluid in the subacromial subdeltoid bursa and also with the sheath of the long head of the biceps tendon.

In a report dated October 26, 2021, Dr. W. David Hovis, a Board-certified orthopedic surgeon, diagnosed rotator cuff tear, right shoulder; acromioclavicular joint (AC) arthropathy, right shoulder; cervical degenerative disc disease; biceps tendinopathy, right shoulder; and a history of tracheal resection three years prior.

By decision dated December 17, 2021, OWCP denied appellant’s traumatic injury claim, finding that the medical evidence of record was insufficient to establish causal relationship between her diagnosed right shoulder conditions and the accepted August 30, 2021 employment incident.

On August 19, 2022 appellant, through counsel, requested reconsideration of the December 17, 2021 decision, and submitted additional evidence.

In a January 3, 2022 progress report, Dr. Hovis noted that no evidence was found of swelling, ecchymosis, or deformity of appellant’s right shoulder. He diagnosed rotator cuff tear, right shoulder, complete, involving supraspinatus tendon with interstitial tearing in the infraspinatus; AC arthropathy, right shoulder; cervical degenerative disc disease (cervical DDD); biceps tendinopathy, right shoulder; and a history of tracheal resection, three years prior. The note recommended arthroscopic rotator cuff repair.

A January 31, 2022 operative report indicated that appellant underwent arthroscopic right shoulder rotator cuff repair, subacromial decompression with anterior acromioplasty secondary to type II acromion, distal clavicle resection, and biceps resection. The procedure was performed by Dr. Hovis.

3
Order Remanding Case, Docket No. 22-1363 (issued March 16, 2023).

2
In March 24, 2022 notes, Dr. Hovis indicated that x-rays of the left shoulder showed no advanced degenerative changes and an acceptable acromial-humeral distance; the soft tissues showed no calcific deposits or any other significant abnormalities; and the glenohumeral joint did not reveal any joint space narrowing. He also noted that x -rays of the left hand revealed subluxation and degenerative changes with narrowing of the joint spaces in the first carpometacarpal (CMC) joint predominantly. Dr. Hovis diagnosed left shoulder rotator cuff tendinopathy and left-hand first CMC joint arthritis of the thumb. He repeated these diagnoses in April 26, 2022 notes.

Treatment notes dated April 28, 2022, from Dr. Patrick J. Mastin, a Board-certified rheumatologist, indicated that appellant reported neck pain/low back pain and advised that, “this has nothing to do with her [rheumatoid arthritis (RA)] as RA spares the spine. This does not mean she does not have other etiology as she has been told there were issues in the past. ” Dr. Mastin noted that he ordered a magnetic resonance imaging (MRI) scan of the neck and low back.

A May 18, 2022 MRI scan of the lumbar spine read by Dr. Samuel Maynard, a Board- certified diagnostic radiologist, revealed a broad-based protrusion without spinal stenosis at L5-S1. A May 18, 2022 MRI scan of the cervical spine, read by Dr. Maynard, revealed mild narrowing of the right foramen due to small protrusion, no spinal stenosis at C5 -6, and small protrusions without spinal stenosis or foraminal stenosis at C3-4, C4-5, and C6-7.

OWCP received treatment notes from a physician assistant who saw appellant on September 30, 2021, and June 10 and July 5, 2022.

In July 5, 2022 notes, Dr. Hovis related diagnoses of right shoulder status post arthroscopic subacromial decompression, post distal clavicle resection; post rotator cuff repair, large; post biceps resection. He also examined the left shoulder, bilateral wrists, and left thumb. Dr. Hovis provided July 26, 2022 work restrictions which included no lifting and a recommendation for physical therapy.

OWCP received a June 28, 2022 electrodiagnostic study, which revealed moderate median neuropathy at both wrists, no ulnar, superficial radial neuropathy, or cervical radiculopathy .

A July 26, 2022 note from Dr. Hovis diagnosed rheumatoid arthritis, unspecified; fibromyalgia; incomplete rotator cuff tear or rupture of left shoulder, not specified as traumatic; bicipital tendinitis left shoulder; primary osteoarthritis, right shoulder; unspecified rotator cuff tear or rupture of right shoulder, not specified as traumatic; complete rotator cuff tear or rupture of right shoulder, not specified as traumatic; bicipital tendinitis right shoulder; encounter for other orthopedic aftercare; and unilateral primary osteoarthritis of first CMC joint, left hand. A return- to-work certificate also dated July 26, 2022, indicated no constant repetitive use of right and left arms and no constant repetitive overhead use of right arm.

OWCP also received a copy of Dr. Hovis’ October 26, 2021 report, previously of record.

By decision dated September 14, 2022, OWCP summarily denied appellant’s request for reconsideration, pursuant to 5 U.S.C. § 8128(a).

3
On September 28, 2022, appellant, through counsel, appealed the September 14, 2022 nonmerit decision to the Board.

By order dated March 16, 2023, the Board set aside the September 14, 2022 decision and, remanded the case for OWCP to consider and address all of the evidence and argument submitted in support of appellant’s reconsideration request, and make findings of fact and provide a statement of reasons for its decision.4

On remand, by decision dated April 24, 2023, OWCP again denied appellant’s request for reconsideration, pursuant to 5 U.S.C. § 8128(a). It reviewed all of the evidence and argument submitted in support of reconsideration, but found it insufficient to warrant a merit review.

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.5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or 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. 6

A request for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought. 7 If OWCP chooses to grant reconsideration, it reopens and reviews the case on its merits. 8 If the request is timely, but fails to meet at least one of the requirements for reconsideration, it will deny the request for reconsideration. 9

4
Id.
5
5 U.S.C. § 8128(a); see L.J., Docket No. 22-0348 (issued April 28, 2023); 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). 6 20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); 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). 7 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. 8 Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).
9
Id. at § 10.608(b); S.K., Docket No. 22-0248 (issued June 27, 2022); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

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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’s timely reconsideration request did not show that OWCP erroneously applied or interpreted a specific point of law and did not advance a relevant legal argument not previously considered by OWCP. Consequently, she is not entitled to a review of the merits of her claim based on the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 10

On reconsideration, appellant submitted a series of reports from Dr. Hovis which related appellant’s right shoulder diagnoses and provided work restrictions; a January 31, 2022 operative report; April 28, 2022 treatment notes from Dr. Mastin; notes from a physician assistant; and reports of diagnostic studies. However, these reports are irrelevant to the underlying issue in this case, as they do not address the underlying issue of causal relationship. The Board has held that the submission of evidence which does not address the particular issue involved does not constitute a basis for reopening a case. 11 Thus, these reports do not constitute a basis for reopening the claim.12 OWCP also received a duplicate copy of an October 26, 2021 report by Dr. Hovis, which was previously of record. The Board has held that evidence or argument that repeats or duplicates evidence previously of record has no evidentiary value and does not constitute a basis for reopening a case.13 Therefore, appellant 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 under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.14

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).

10
See D.B., Docket No. 22-1241 (issued April 27, 2023); M.O., Docket No. 19-1677 (issued February 25, 2020);
C.B., Docket No. 18-1108 (issued January 22, 2019).
11
See D.C., Docket No. 21-0947 (issued February 6, 2023); F.H., Docket No. 20-0309 (issued January 26, 2021);
T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon- Steward, 52 ECB 140 (2000); Edward Matthew Diekemper, 31 ECAB 224-25 (1979). 12 Id.
13
C.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); Eugene F. Butler, 36 ECAB 393, 398 (1984). 14 See D.M., Docket No. 21-1224 (issued March 15, 2023); J.C., Docket No. 21-0453 (issued December 8, 2021);
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 20 C.F.R. § 10.606(b), OWCP will deny the request without reopening the case for a review on the merits).

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ORDER

IT IS HEREBY ORDERED THAT the April 24, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 8, 2025
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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