United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Madison, WI, Employer 

__________________________________________ 

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Docket No. 14-145 

Issued: March 21, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 28, 2013 appellant, through his attorney, filed a timely appeal from a May 7, 

2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his 

request for reconsideration. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by 

OWCP. The last merit decision of record was OWCP’s February 7, 2013 decision. Because 

more than 180 days elapsed between the last merit decision to the filing of this appeal, the Board 

lacks jurisdiction to review the merits of this case.2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further review of the 

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

 1

 5 U.S.C. § 8101 et seq.

2

 For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of 

OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R. 

§ 501.3(e). 
2

FACTUAL HISTORY 

On November 23, 2012 appellant, then a 43-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed a displaced thoracic spinal cord, 

degenerative disc bulging, acute low back pain, lumbar pelvic muscle spasms and subluxation as 

a result of his federal employment duties.3

 He stated that his work duties resulted in constant 

bending, reaching and stooping. Appellant further noted that on November 20, 2012 he 

crouched down to get in the mail truck and felt his lower back give out. He first became aware 

of his condition on October 6, 2004 and of its relationship to his employment on 

November 20, 2012. Appellant stopped work and sought medical treatment on 

November 20, 2012. His supervisor was notified on November 28, 2012. 

In a November 28, 2012 worker’s injury form, appellant reported that he had previously 

injured his lower back in a similar manner on September 9, 2011. He further noted a preexisting 

injury of bilateral plantar fasciitis. 

By letter dated November 28, 2012, the employing establishment controverted the claim. 

It stated that appellant had self-reported a preexisting condition for the past eight years for which 

he had been under chiropractic care. The employing establishment further noted that he received 

military disability benefits for a service-related L1-S1 spine condition. 

OWCP thereafter received a number of reports from appellant’s treating chiropractor, 

podiatrist, osteopath, family practitioner, orthopedic surgeon and radiologist, which noted 

appellant’s history of foot and back complaints. 

In a January 24, 2013 report, Dr. Cynthia M. Bender, Board-certified in physical 

medicine and rehabilitation, reported that appellant presented with a history of clinical symptoms 

consistent with lumbar radiculopathy. 

In a January 25, 2013 narrative statement, appellant reported that over the last 10 years he 

suffered from a number of medical conditions including multilevel degenerative disc disease, 

disc protrusion, intervertebral disc syndrome and plantar fasciitis. He stated that he had 

undergone treatment but his duties as a rural carrier caused a worsening of his conditions. 

Specifically, appellant had a severe flare up in his lower back on November 20, 2012 while 

delivering mail, bending, reaching and stooping, which caused him to file an occupational 

disease claim. 

By decision dated February 7, 2013, OWCP denied appellant’s claim finding that the 

medical evidence failed to establish that his conditions were causally related to his federal 

employment duties. 

 3

 The Board notes that appellant has one other occupational disease claim and two other traumatic injury claims 

before OWCP. A February 11, 2001 traumatic injury claim number xxxxxx181, a July 10, 2006 traumatic injury 

claim number xxxxxx480 and a June 9, 2012 occupational disease claim number xxxxxx203. The record before the 

Board contains no other information regarding these additional workers’ compensation claims. 
3

By letter dated March 15, 2013, appellant requested reconsideration of OWCP’s decision. 

He stated that attached with his appeal request form was an additional medical report dated 

March 7, 2013 from his physician which established his claim. 

Appellant submitted a February 6, 2013 functional capacity evaluation in support of his 

claim. He also submitted a February 21, 2013 left S1 nerve root injection from Dr. Timothy 

Crummy, a Board-certified diagnostic radiologist. 

On May 7, 2013 appellant submitted a number of medical reports previously of record, as 

well as a new March 7, 2013 medical report from Dr. Bender. 

In the March 7, 2013 report, Dr. Bender diagnosed disc protrusion at L5-S1. She opined 

that the work incident of November 20, 2012, when appellant squatted down to get a parcel in 

his truck, caused the subsequent disc protrusion at L5-S1 which caused his radicular pain. 

Dr. Bender noted that this was a new symptom which she believed was caused by his work. 

By decision dated May 7, 2013, OWCP denied appellant’s request for reconsideration 

finding that he neither raised substantive legal questions nor included new and relevant evidence. 

The decision noted that the file did not contain a March 7, 2013 report. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations provide 

that when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration 

without reopening the case for a review on the merits.5

FECA provides that OWCP shall determine findings of fact in making an award for or 

against payment of compensation after considering the claim presented by the employee and 

after completing such investigation as OWCP considers necessary with respect to the claim. 

Since the Board’s jurisdiction of a case is limited to reviewing that evidence which was before 

OWCP at the time of its final decision, it is necessary that OWCP review all evidence submitted 

by a claimant and received by OWCP prior to issuance of its final decision. The Board has held 

that this principal applies with equal force when evidence is received by OWCP the same day a 

final decision is issued.6

 As the Board’s decisions are final as to the subject matter appealed, it is 

 4 D.K., 59 ECAB 141 (2007). 

5 K.H., 59 ECAB 495 (2008). 

6 Linda Johnson, 45 ECAB 439 (1994). 
4

critical that OWCP review all newly received evidence relevant to that subject matter prior to the 

time of issuance of its final decision.7

ANALYSIS 

The Board finds this case is not in posture for decision. 

Appellant requested reconsideration of OWCP’s denial of his claim on March 15, 2013. 

He submitted medical evidence in support of this request, which was received by OWCP on 

May 7, 2013, the same day that OWCP issued a nonmerit decision denying appellant’s request 

for reconsideration. In its May 7, 2013 denial of appellant’s reconsideration request, OWCP 

noted that he submitted a March 7, 2013 medical report but that the record contained no such 

report. 

As such, the Board finds that the March 7, 2013 medical report related to appellant’s 

claim was received but not reviewed by OWCP prior to its rejection of his request for 

reconsideration.8

 As the Board’s decisions are final as to the subject matter appealed, it is crucial 

that all evidence relevant to the subject matter of the claim which was properly submitted to 

OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP.9 

Whether OWCP receives relevant evidence on the date of the decision or several days prior, such 

evidence must be considered.10 Because OWCP did not consider the new medical evidence 

submitted by appellant, the Board cannot review such evidence for the first time on appeal.11

Therefore, in accordance with Board precedent, the case must be remanded for a proper 

review of the evidence and an appropriate final decision on appellant’s request for 

reconsideration.12 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

 7 William A. Couch, 45 ECAB 548 (1990) (OWCP did not consider new evidence received four days prior to the 

date of its decision). 

8 L.D., Docket No. 07-1293 (issued September 25, 2007). 

9 See Yvette N. Davis, 55 ECAB 475 (2004); see also supra notes 6 and 7. 

10 Willard McKennon, 51 ECAB 145 (1999). 

11 20 C.F.R. § 501.2(c). 

12 Supra note 8. 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 7, 2013 decision of the Office of Workers’ 

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision of the Board. 

Issued: March 21, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board