United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 15-1039 

Issued: August 4, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 10, 2015 appellant, through counsel, filed a timely appeal from a February 27, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant 

to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to review the nonmerit decision. 

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). 

 1

 Although there is an OWCP merit decision (January 5, 2015) within the Board’s jurisdiction, counsel for 

appellant has only appealed the nonmerit February 27, 2015 OWCP decision. 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On May 26, 2008 appellant, a 44-year-old mail clerk, filed an occupational disease claim 

alleging that he sustained a neck injury in the performance of duty while pulling wire cages and 

Gaylord boxes. OWCP accepted his claim for cervical strain. It also accepted displacement of 

cervical intervertebral disc without myelopathy. The discs were identified as C3-4, C5-6, and 

C6-7. 

A magnetic resonance imaging (MRI) scan obtained on May 23, 2008 indicated that the 

disc herniation at C6-7 was more pronounced to the left and produced significant left-sided 

foraminal stenosis with probably nerve root impingement. 

Appellant filed a claim for a schedule award. His attending physician, Dr. John L. 

Dunne, an osteopath, found no evidence of radiculopathy or involvement of the upper 

extremities due to cervical nerve root impairment based on his examination of appellant. He 

concluded that appellant had no impairment of a scheduled member due to the accepted medical 

conditions. 

In a decision dated April 24, 2014, OWCP denied appellant’s schedule award claim. An 

OWCP hearing representative affirmed on January 5, 2015. 

On February 18, 2015 OWCP received from appellant a reconsideration request. In 

support thereof, appellant submitted a January 16, 2015 electrodiagnostic study of the left arm. 

Dr. Sami E. Moufawad, a Board-certified physiatrist and specialist in pain medicine, noted that 

needle electromyography of the left upper limb was compatible axonal loss in the left C6 

myotome. He concluded that the findings were compatible with left C6 motor radiculopathy. 

In a decision dated February 27, 2015, OWCP denied appellant’s reconsideration request. 

It found that the evidence submitted was irrelevant or immaterial and thus had no bearing on the 

issue or was inconsequential to the issue. The electrodiagnostic study was just a test report, 

OWCP explained, and did not provide a discussion of an impairment rating. Further, the testing 

alone did not support that Dr. Dunne’s finding of no impairment was incorrect. Accordingly, 

OWCP found that the evidence was not sufficient to warrant a review of the hearing 

representative’s January 5, 2015 decision. 

LEGAL PRECEDENT 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or upon application.3

 An employee (or representative) seeking reconsideration 

should send the request for reconsideration to the address as instructed by OWCP in the final 

decision. The request for reconsideration, including all supporting documents, must be in 

writing and must set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

 3

 5 U.S.C. § 8128(a). 
3

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.4

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP decision for which review is sought.5

 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or argument that meets at 

least one of these standards. If reconsideration is granted, the case is reopened and the case is 

reviewed on its merits. Where the request is timely but fails to meet at least one of these 

standards, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.6

ANALYSIS 

The most recent decision on the merits of appellant’s case was the hearing 

representative’s January 5, 2015 decision affirming the denial of appellant’s schedule award 

claim. Appellant has one calendar year from the date of that decision, or until January 5, 2016, 

to deliver a reconsideration request to OWCP. His February 18, 2015 reconsideration request, 

received by OWCP that same day, was therefore timely. 

The question is whether appellant’s request met at least one of the three standards for 

obtaining a merit review of his case. To support his request, appellant submitted a January 16, 

2015 electrodiagnostic study obtained by Dr. Moufawad, the physiatrist, who concluded that the 

findings were compatible with left C6 motor radiculopathy. As this was new evidence not 

previously considered by OWCP, the more specific question is whether this evidence was 

relevant and pertinent.7

The issue raised by appellant’s schedule award claim was whether he had permanent 

impairment to a scheduled member of the body. OWCP denied his claim because his osteopath, 

Dr. Dunne, found no evidence of radiculopathy or involvement of the upper extremities due to 

cervical nerve root impingement based on his physical examination of appellant. Thus, there 

was no basis for the payment of a schedule award. 

Appellant submitted that evidence with his reconsideration request. There were now 

objective clinical test results confirming that he had a left C6 spinal nerve root radiculopathy. 

The evidence was not only relevant to the issue under consideration, it established a firm medical 

foundation for a possible rating for permanent impairment. Accordingly, the Board finds that 

appellant is entitled to a merit review of his case. The Board sets aside OWCP’s February 27, 

2015 decision and remands the case for merit review. 

 4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608. 

7

 “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be without the 

evidence. Fed. R. Evid. 401. 
4

CONCLUSION 

The Board finds that OWCP did not properly deny appellant’s request for review of the 

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

ORDER 

IT IS HEREBY ORDERED THAT the February 27, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action. 

Issued: August 4, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board