United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Islandia, NY, Employer 

__________________________________________ 

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Docket No. 14-1608 

Issued: November 19, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 15, 2014 appellant filed a timely appeal from a May 15, 2014 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 July 11, 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

 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 May 7, 2013 appellant, then a 39-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained a lower back injury on that same date when he was 

off-loading mail from a container. He notified his supervisor and stopped work that same date. 

Appellant first sought medical treatment on May 8, 2013. 

An OWCP Form CA-16, authorization for examination, dated May 8, 2013, indicated 

that appellant was authorized to visit Dr. Todd Goldman, a treating chiropractor.3 On the second 

page of the form, Dr. Goldman reported that on May 7, 2013 appellant felt a pull in his lower 

back when he was carrying mail out of a container. He noted review of x-rays and diagnosed 

subluxation and contusion of back. Dr. Goldman checked the box marked “yes” when asked if 

he believed the condition was caused or aggravated by the employment injury. 

Appellant submitted a May 8, 2013 duty status report (Form CA-17) which provided a 

diagnosis of lumbar sprain and an undated attending physician’s report (Form CA-20) from 

Dr. Goldman. 

By letter dated June 4, 2013, OWCP informed appellant that the evidence of record was 

insufficient to support his claim and requested additional factual and medical evidence. 

In a May 8, 2013 medical report, Dr. Goldman provided a history of the May 7, 2013 

injury noting that appellant was off-loading mail from a container and felt pain in his lower back. 

He provided findings on physical examination and reviewed a May 8, 2013 x-ray of the lumbar 

spine which revealed subluxation at L4-5. Dr. Goldman diagnosed lumbar subluxation and 

opined that appellant’s injury was causally related to the May 7, 2013 accident. 

By decision dated July 11, 2013, OWCP denied appellant’s claim finding that the 

evidence of record failed to establish that his diagnosed conditions were causally related to the 

accepted May 7, 2013 employment incident. 

By letter dated February 10, 2014, appellant requested reconsideration of OWCP’s 

decision. He argued that his injury was employment related and his assignment for the last six 

years was very physically demanding. 

A May 30, 2013 Family and Medical Leave Act (FMLA) Certification of Health Care 

Provider Form was provided by Dr. Goldman which noted a diagnosis of lumbar subluxation and 

severe lumbar spine pain. Appellant was provided with work restrictions. 

In an undated letter of medical necessity, Dr. Goldman reported that appellant was being 

treated for spinal pain due to an auto or work-related injury. As a result of appellant’s injury, he 

 3

 A properly completed Form CA-16 authorization may constitute a contract for payment of medical expense to a 

medical facility or physician, when properly executed. The form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on 

the claim. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). 
3

argued that it was medically necessary to obtain computerized physical performance and neuro 

muscular testing. 

In a May 22, 2013 neuromuscular diagnostic procedure, Dr. S. Matrangolo, a treating 

chiropractor, provided examination findings. 

By decision dated May 15, 2014, OWCP denied appellant’s request for reconsideration 

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

evidence.4

 

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.5 Section 10.608(b) of OWCP regulations 

provides 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.6

ANALYSIS 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the 

claim. In his February 10, 2014 application for reconsideration, appellant did not show that 

OWCP erroneously applied or interpreted a specific point of law. He did not advance a new and 

relevant legal argument. Appellant’s sole argument is that his injury was employment-related to 

the May 7, 2013 employment incident. That is a medical issue which must be addressed by 

relevant medical evidence.7

 

While appellant submitted new reports from Dr. Goldman and Dr. Matrangolo, these 

reports are not relevant to establishing a causal relationship between appellant’s lumbar 

condition and the May 7, 2013 employment incident. Dr. Goldman’s undated letter of medical 

 4

 The Board notes that appellant submitted additional evidence after OWCP rendered its May 15, 2014 decision. 

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy, 

47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 

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

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

7 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
4

necessity argued the need for computerized physical performance and neuro muscular testing. 

His letter failed to provide a subluxation diagnosis or any opinion on causation. While 

Dr. Goldman’s May 30, 2013 FMLA form noted a subluxation diagnosis, he failed to provide 

any medical rationale that the diagnosed condition was caused by the May 7, 2013 employment 

incident.8

 Dr. Matrangolo’s May 22, 2013 neuromuscular diagnostic report is also insufficient to 

reopen the case for review of the merits of appellant’s claim. There is no indication that 

Dr. Matrangolo, a chiropractor, diagnosed subluxation based on the results of an x-ray.9

 As 

Dr. Matrangolo does not meet the statutory definition of a physician, his reports lacks probative 

value.10 

While these reports were not previously of record, they are irrelevant to the grounds upon 

which OWCP denied appellant’s claim. Appellant’s claim was denied because the medical 

evidence lacked a rationalized opinion from a physician, with a physiological description of how 

his claimed injury resulted from the May 7, 2013 employment incident and a full and accurate 

factual and medical history, on the issue of causal relationship. As the reports of Dr. Goldman 

and Dr. Matrangolo do not contain such an opinion, they are not relevant and are therefore 

insufficient to require a merit review of appellant’s claim.11

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.12 Claimant may obtain a merit 

review of an OWCP decision by submitting new and relevant evidence. In this case, while 

appellant submitted new evidence, it was not relevant in the issue in this case. 

The Board notes that the employing establishment properly issued a Form CA-16 which 

authorized medical treatment as a result of the employee’s claim for an employment-related 

injury. The Form CA-16 creates a contractual obligation, which does not involve the employee 

directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim.13 The period for which treatment is authorized by a Form CA-16 is limited to 60 days 

from the date of issuance, unless terminated earlier by OWCP. On return of the record, OWCP 

should adjudicate whether appellant’s examination or treatment is reimbursable under the form. 

 8

 A chiropractor is not considered a physician under FECA unless it is established that there is a spinal 

subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2). As Dr. Goldman diagnosed lumbar subluxation 

confirmed by x-ray, he is considered to be a “physician” under FECA with this specific diagnosis only. See Kathryn 

Haggerty, 45 ECAB 383 (1994).8

 

9

 5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined 

by State law. The term physician includes chiropractors only to the extent that their reimbursable services are 

limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by 

x-ray to exist and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988). 

10 T.G., Docket No. 13-76 (issued March 22, 2013). 

11 M.N., Docket No. 14-245 (issued May 2, 2014). 

12 Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979). 

13 L.E., Docket No. 14-684 (issued July 29, 2014); see Tracy P. Spillane, supra note 3. 
5

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP 

or submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

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

ORDER 

IT IS HEREBY ORDERED THAT the May 15, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 19, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board