United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

North Tonawanda, NY, Employer 

__________________________________________ 

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Docket No. 16-0335 

Issued: April 15, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 15, 2015 appellant, through counsel, filed a timely appeal from a 

September 22, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Since more than 180 days has elapsed from the last merit decision of July 30, 2014 

and the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1

 and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s 

claim. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

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

On appeal appellant’s counsel contends that OWCP’s decision was contrary to fact and 

law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 5, 2014 appellant, then a 55-year-old rural letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that as a result of casing mail and reaching for mail at or 

above shoulder height, he suffered from right and left shoulder discomfort. He stopped work on 

April 30, 2014. 

In support of his claim, appellant submitted medical evidence. These items included 

medical reports dated May 5 and 23, 2014 wherein Dr. Daniel R. Wild, a Board-certified 

orthopedic surgeon, indicated that appellant worked for the employing establishment and 

abruptly developed rather severe pain and restricted range of motion in his shoulder, which 

occurred during the normal course of employment. He noted that since that time appellant has 

had rather marked loss of mobility in his shoulder, with severe weakness and inability to raise his 

arm up over his head. Dr. Wild excused appellant from work and requested that a magnetic 

resonance imaging (MRI) scan be performed. 

In a June 11, 2014 attending physician’s report (Form CA-20), Dr. Wild diagnosed 

appellant with rotator cuff sprain and checked a box marked “yes” to note that he believed that 

the condition was caused or aggravated by appellant’s employment activity. He noted that 

appellant was 100 percent totally disabled due to a right shoulder injury he sustained at work on 

April 30, 2014. Dr. Wild’s also submitted progress notes. 

Appellant submitted results of a shoulder x-ray taken on April 30, 2014 that was 

interpreted by Dr. Jayant G. Kale, a Board-certified radiologist, as normal. 

By decision dated July 30, 2014, OWCP denied appellant’s claim. It determined that he 

failed to establish a causal relationship between the medical diagnosis of rotator cuff sprain and 

the accepted factors of federal employment. 

Thereafter, on September 2, 2014 OWCP received an April 30, 2014 report from Heidi 

Cornell, a nurse practitioner. This report related that appellant had experienced right shoulder 

complaints for the past two months. An assessment was offered of right shoulder pain, and noted 

that appellant should follow up with Dr. Wild and avoid lifting over 10 pounds. 

On July 29, 2015 appellant, through counsel, requested reconsideration. In support 

thereof, counsel resubmitted the May 5 and 23, 2014 reports from Dr. Wild and the April 30, 

2014 x-ray report. 

By decision dated September 22, 2015, OWCP denied appellant’s request for 

reconsideration without conducting a merit review. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

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.3 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.4

 When a claimant fails to meet one of 

the above standards, OWCP will deny the application for reconsideration without reopening the 

case for review on the merits.5

 

ANALYSIS 

OWCP found that appellant established that he suffered a rotator cuff sprain and that the 

working condition occurred as alleged. However, it denied his claim because he had not 

submitted medical evidence establishing a causal relationship between the accepted medical 

condition and the accepted factors of his federal employment. 

The Board finds that appellant has not submitted sufficient evidence with his 

reconsideration request that is sufficient to warrant merit review. OWCP received a 

September 2, 2014 report from Ms. Cornell, a nurse practitioner. However, this report is not 

pertinent to the issue of causal relationship. The Board has held that nurse practitioners are not 

considered physicians under FECA.6

 Registered nurses, licensed practical nurses, physician 

assistants, and physical therapists are not physicians as defined under FECA and their opinions 

are of no probative value.7 Consequently, the nurse practitioner’s report does not constitute 

relevant and pertinent new evidence not previously considered by OWCP.8

Appellant also resubmitted evidence already in the record, including the May 5 and 23, 

2014 reports and progress notes by Dr. Wild and the April 30, 2014 x-ray report. The Board has 

found that evidence which is repetitive, duplicative, or cumulative in nature is insufficient to 

 2 Supra note 1. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

3 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 

6 See 5 U.S.C. § 8101(2) which provides: physician includes surgeons, podiatrists, dentists, clinical 

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

by state law; see also Roy L. Humphrey, 57 ECAB 238 (2005); Jennifer L. Sharp, 48 ECAB 209 (1996).

7 L.B., Docket No. 09-2183 (issued May 4, 2010). 

8 Id. 
4

warrant reopening a claim for merit review.9

 Accordingly, appellant did not submit relevant and 

pertinent new evidence with his request for reconsideration.10 

Furthermore, the Board finds that appellant has not shown that OWCP erroneously 

applied or interpreted a specific point of law and has not advanced a relevant legal argument not 

previously considered by OWCP. 

Accordingly, the Board finds that he did not meet any of the necessary requirements and 

is not entitled to further merit review.11

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 22, 2015 is affirmed. 

Issued: April 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 J.B., Docket No. 14-1164 (issued November 20, 2014); Denis M. Dupor, 51 ECAB 482 (2000). 

10 L.B., Docket No. 09-2183 (issued May 4, 2010). 

11 See L.H., 59 ECAB 253 (2007).