United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

Q.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Clarita, CA, Employer 

__________________________________________ 

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Docket No. 14-147 

Issued: May 19, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 28, 2013 appellant, through her attorney, filed a timely appeal from a 

September 24, 2013 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying her 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 

November 23, 2012 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 October 10, 1991 appellant, then a 31-year-old carrier, filed an occupational disease 

claim (Form CA-2) alleging that she developed back pain as a result of lifting and carrying her 

satchel from her federal employment duties. OWCP accepted the claim for right shoulder and 

upper arm sprain and lumbosacral sprain. Appellant began working limited duty as a window 

clerk on January 22, 1993. 

Beginning July 25, 2012, appellant filed a recurrence claim. 

In medical reports dated June 4 to September 20, 2012, Dr. David Heskiaoff, appellant’s 

treating physician and Board-certified orthopedic surgeon, reported that appellant’s new position 

as a window clerk aggravated her neck and shoulder pain through her repetitive work duties. He 

diagnosed cervical radiculopathy and myofacial sprain of the cervical spine. Dr. Heskiaoff 

further opined that appellant’s new window clerk position was causing her current problems as 

her radiculopathy was confirmed by diagnostic testing. He advised that she was unable to work 

beginning July 6 through October 2, 2012. Appellant was provided with new work restrictions. 

In an August 3, 2012 electromyography (EMG) and nerve conduction study of the upper 

right extremity, Dr. Barak Mevorak, Board-certified in physical medicine and rehabilitation, 

reported that the tests revealed right acute C5 radiculopathy. A September 14, 2012 diagnostic 

report was also provided from Dr. B. Shayestehfar, a Board-certified diagnostic radiologist, 

which provided magnetic resonance imaging scan findings of the cervical spine. 

By decision dated November 23, 2012, OWCP denied appellant’s recurrence claim on the 

grounds that the medical evidence failed to establish that her disability was due to a material 

change/worsening of her accepted work-related conditions.3

 It noted that the medical evidence 

of record failed to establish her inability to work, which provided rationale explaining why she 

could not perform the modified duties that she was performing prior to July 6, 2012. 

In a December 3, 2012 medical report, Dr. Heskiaoff diagnosed cervical radiculopathy 

and recommended acupuncture. 

In a December 10, 2012 offer of modified assignment, appellant accepted a limited-duty 

position as a lobby director, which provided her with new work restrictions. 

In a February 1, 2013 medical report, Dr. Mark Greenspan, a Board-certified surgeon, 

provided a detailed work history of the various positions held by appellant while working for the 

postal service beginning in 1991. He reported that, in December 2011, she was transferred to 

work at a window, which entailed prolonged standing, repetitive twisting, turning, reaching, arm 

and hand movements, grasping, torqueing motions, fine finger manipulations and lifting and 

carrying 10 to 15 pounds for eight hours per day, five days per week. Dr. Greenspan provided a 

summary of appellant’s prior medical reports and history, noting that Dr. Heskiaoff diagnosed 

myofacial sprain of the cervical spine and cervical radiculopathy and placed her off work from 

 3

 OWCP referenced appellants Form CA-7’s dated July 6 through October 1, 2012 claiming wage loss from work 

due to a change or worsening of her accepted work-related conditions. 
3

July to October 2012 because of right shoulder, neck, elbow and hip pain. Upon physical 

examination and review of diagnostic testing, Dr. Greenspan diagnosed cervical disc bulge C4 

through C7, acute C5 radiculopathy, right shoulder sprain and musculoligamentous sprain of the 

lumbar spine. He opined that appellant’s conditions were caused by the September 17, 1991 

occupational injury and noted that the described repetitive activities caused the mechanism of 

injury to the cervical spine, right shoulder and lumbar spine, as evidenced through clinical 

findings and diagnostic testing. Dr. Greenspan further noted that her injury was a new and 

separate injury and not an aggravation of her prior injury. He recommended physical therapy 

and noted that appellant could continue to work her new modified assignment as a lobby 

director. In a February 25, 2013 progress report, Dr. Greenspan reported that she could return to 

modified work beginning February 25, 2013. 

By decision dated February 28, 2013, OWCP expanded the claim to include herniated 

cervical disc and cervical radiculopathy, along with the previously accepted lumbar and right 

shoulder sprain based on Dr. Greenspan’s February 1, 2013 report. 

On July 31, 2013 appellant requested reconsideration of the November 23, 2012 OWCP 

decision. 

In support of her claim, appellant submitted medical reports previously of record. She 

also submitted progress notes and medical reports from Dr. Greenspan dated February 1 through 

July 20, 2013. Dr. Greenspan provided details regarding appellant’s current condition and 

progress following his initial February 1, 2013 evaluation. He recommended physical therapy 

and cortisone injections and provided her with new work restrictions pertaining to her current 

position as lobby director. 

By decision dated September 24, 2013, OWCP denied appellant’s request for 

reconsideration finding that she 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 

 4

 The Board notes that appellant submitted additional evidence after OWCP rendered its September 24, 2013 

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). Appellant may submit this evidence 

to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§ 10.606(b)(2). 

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

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 her 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 her July 31, 2013 application for reconsideration, appellant did not show that OWCP 

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

relevant legal argument. Appellant’s argument was that her injury was employment related. The 

underlying issue in this case was not whether her injury was causally related to the accepted 

factors of federal employment, but rather whether her injury caused her disability from July 6 to 

October 1, 2012 such that she was unable to perform her light-duty work. That is a medical issue 

which must be addressed by relevant medical evidence.7

 A claimant may obtain a merit review 

of an OWCP decision by submitting new and relevant evidence. In this case, appellant failed to 

submit any new and relevant evidence addressing her disability from work for the claimed period 

July 6 to October 1, 2012. 

Appellant resubmitted medical reports, which were previously addressed and evaluated 

by OWCP in its November 23, 2012 merit decision. As the reports repeat evidence already in 

the case record, they are duplicative and do not constitute relevant and pertinent new evidence. 

Appellant also submitted new medical reports from Dr. Greenspan dated February 1 

through July 20, 2013. While these reports are new, they are not relevant to establishing her 

disability from work for the claimed period. The Board notes that Dr. Greenspan’s February 1, 

2013 report provided an additional diagnosis of herniated cervical disc and cervical 

radiculopathy, which OWCP accepted as employment related on February 28, 2013. Despite 

providing new diagnoses which were later accepted by OWCP, Dr. Greenspan failed to provide 

any opinion finding appellant disabled for work for the period July 6 to October 1, 2012 due to 

her accepted injuries. His reports provided opinions on her work limitations and disability from 

the date of his initial February 1, 2013 evaluation onward. 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.8

 While appellant submitted new evidence, it was not relevant in 

addressing whether she is entitled to wage-loss compensation due to her claimed disability. She 

may obtain a merit review of an OWCP decision by submitting new and relevant evidence. As 

none of the reports address whether she was disabled for the period in question, she failed to 

submit any new and relevant evidence addressing causal relationship. 

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

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

8 Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979). 
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 September 24, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 19, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board