United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.L., Appellant 

and 

DEPARMTMENT OF COMMERCE, CENSUS 

BUREAU, REGIONAL OFFICE, 

Deer Park, WA, Employer 

__________________________________________ 

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Docket No. 16-1115 

Issued: November 23, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 4, 2016 appellant, through counsel, filed a timely appeal of an April 11, 2016 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days elapsed from the last OWCP merit decision, dated October 8, 2014,2 to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 The most recent merit decision of record is the Board’s April 17, 2015 decision. However, this decision became 

final 30 days after issuance and is not subject to further review. See 20 C.F.R. § 501.6. 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

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

FACTUAL HISTORY 

This case has previously been before the Board. On February 6, 2013 appellant, then a 

39-year-old field representative, filed a traumatic injury claim (Form CA-1) alleging that she was 

injured in an employment-related motor vehicle accident on January 20, 2013. The employing 

establishment indicated that she worked a variable job averaging 3.87 hours a day for the 52 

weeks prior to her employment injury. OWCP accepted appellant’s claim for disturbance of skin 

sensation on the left, sprain of the pelvis, wrist sprain on the left, sprain of the left hip and thigh, 

displacement of cervical intervertebral disc without myelopathy, sprain of the chest wall muscle, 

and sprain of the lumbar back on February 22, 2013. 

Dr. Edgar A. Figueroa, a Board-certified family practitioner, completed a report on 

February 22, 2013 and indicated that appellant could return to work with restrictions four hours a 

day on that date. Appellant returned to part-time light duty on February 24, 2013 working four 

hours a day. 

Dr. Jonathan J. Wilson, an osteopath, completed a note dated March 7, 2013 and 

determined that appellant could work four hours a day with restrictions from February 22 

through April 8, 2013. On April 8, 2013 he noted that she was experiencing increasing pain. 

Appellant had returned to work and was also working as a noxious weed inspector. She reported 

difficulty driving and stated that everything got much worse after a long car ride to the coast for 

vacation from March 28 through 30, 2013. Dr. Wilson completed a duty status report and 

indicate that appellant could perform part-time light-duty work. He indicated that her disability 

was unchanged on April 23, 2013. 

Appellant filed additional claims for compensation requesting wage-loss compensation 

from March 7 through April 20, 2013. On her claim form, she indicated that she worked as a 

noxious weed inspection on April 1 through 5, April 8 through 12, and April 15 

through 18, 2013. In a letter dated May 10, 2013, OWCP requested additional medical 

information supporting appellant’s disability for her federal employment during the periods 

claimed. 

Dr. Wilson completed a report dated May 20, 2013 and noted that appellant worked hard 

in her home garden over the weekend and that a six-hour drive to Sullivan Lake made things 

worse. On May 28, 2013 he indicated that she could work three to four hours a day with 

restrictions. Dr. Wilson completed a note on June 19, 2013 and noted that on May 20, 2013 

appellant became overwhelmed with telephone interviews and hurt her neck and arm. Appellant 

stated that bouncing down dirt roads caused her pain and that driving was still scary to her. She 

stated that she was having trouble with the activities of daily living. Appellant reported that she 

had returned to full-time four-hour-a-day work at the employing establishment. 

Appellant submitted a copy of her job description as a noxious weed inspector, which 

included driving her personal vehicle through the inspection area, stopping to note weeds, and 
3

making personal contact with property owners. She frequently aided the owners in removing 

weeds with a shovel. Appellant was responsible for 500 property owners in her inspection area. 

In April 2013, she worked 64 hours and in May 2013 she worked 91 hours earning $12.50 an 

hour. 

By decision dated June 20, 2013, OWCP denied appellant’s claim for intermittent periods 

of compensation commencing March 7, 2013 and continuing. It stated that she submitted 

evidence dated through May 29, 2013, but found that she had not submitted the necessary 

medical opinion evidence to establish that she was totally disabled for the periods in question. 

Appellant, through counsel, requested an oral hearing before an OWCP hearing representative on 

July 11, 2013. 

OWCP referred appellant for a second opinion evaluation on May 14, 2013 with 

Dr. James Schwartz, a Board-certified orthopedic surgeon. In his June 24, 2013 report, 

Dr. Schwartz noted her history of injury and reported her symptoms of leg and back pain. He 

diagnosed cervical and lumbar strain related to the January 20, 2013 employment injury. 

Dr. Schwartz found that appellant had no residuals of her employment injury in that her physical 

examination was strikingly normal. He opined that she had no restrictions for her job duties and 

could work an eight-hour day. Dr. Schwartz noted that with extended driving appellant might 

need to stop every hour to get out and move around the car. He further noted that her complaints 

were areas of tenderness which was consistent with cervical and lumbosacral strain injuries. 

Dr. Wilson examined appellant on June 26, 2013 and continued to find that she could 

work four hours a day or full time at the employing establishment. He also completed a duty 

status report of the same date with the same findings. 

Dr. T. Daniel Dibble, a Board-certified anesthesiologist, examined appellant on July 9, 

2013 and noted that she received epidurals on May 7 and 28, 2013. He also noted that she 

performed physical labor for an hour, stretched, worked for four hours, and sat for four hours. 

Appellant filed additional claims for compensation dated May 4 and 27, and June 1, 2013 

requesting wage-loss compensation from April 21 through June 1, 2013. She indicated that she 

worked as a field inspector on April 23, 24, 29, and 30, 2013. Appellant also worked as a field 

inspector on May 5, 2013 and from May 7 through 14, 2013 and May 15 and 18, 2013 as well as 

from May 20 through 25 and May 28 through 31, 2013. 

In a decision dated July 15, 2013, OWCP again denied appellants’ claim for intermittent 

wage-loss compensation beginning March 7, 2013.4

 It found that the medical evidence dated 

through July 5, 2013 did not support her disability for work. Appellant, through counsel, 

requested an oral hearing on July 19, 2013. 

Dr. Wilson completed a report on July 29, 2013 and noted that appellant was working 

four hours a day. Appellant worked hard in her home garden over the weekend and took a sixhour drive which increased her pain. Dr. Wilson noted that she was stable, but in pain with her 

current work regimen. He provided a duty status report and indicated that appellant was 

 4

 OWCP did not further reference the specific period of disability denied and did not mention the June 20, 2013 

decision. 
4

unchanged and working four hours a day. Dr. Wilson provided similar reports dated 

September 13 and October 29, 2013. 

Appellant testified at the oral hearing on December 2, 2013 regarding both the decisions 

issued by OWCP and stated that it was impossible for her to work only four hours a day and 

complete both of her jobs. In a report dated December 2, 2013, Dr. Wilson indicated that she 

was not capable of driving or using a computer. He noted that appellant could not focus on work 

during periods of increased pain which made driving unsafe. 

Appellant filed additional claims for compensation dated November 13, 2013 claiming 

periods of total disability from June 16 through November 16, 2013. She provided the dates that 

she worked as a noxious weed inspector. The employing establishment indicated on these forms 

that appellant had requested a lower case load. In a letter dated December 16, 2013, OWCP 

requested that she supply additional medical evidence explaining how her claimed disability was 

caused or aggravated by her employment injuries. 

By decision dated January 14, 2014, an OWCP hearing representative noted both OWCP 

decisions, June 20 and July 14, 2013, and found that appellant had not established that she was 

totally disabled from March 7 through June 1, 2013. She found that the medical evidence did not 

support appellant’s disability for work due to her accepted employment-related condition for the 

claimed dates. 

In a decision dated January 21, 2014, OWCP denied appellant’s claims for compensation 

on or after June 16, 2013. It found that Dr. Wilson provided work restrictions based on 

subjective complaints and did not provide contemporaneous medical evidence to support 

temporary total disability. Counsel requested an oral hearing from OWCP’s Branch of Hearings 

and Review on January 24, 2014. 

In a report dated February 24, 2014, Dr. Wilson noted that appellant reported subjective 

complaints on October 8 and 29, 2013 including pains and muscle spasms. Appellant requested 

two to three months to recuperate. On February 24, 2014 she informed Dr. Wilson that she had 

quit her position at the employing establishment and had not worked since early October 2013. 

Appellant, through counsel, requested reconsideration on April 17, 2014 of the 

January 14, 2014 decision and submitted an additional report from Dr. Wilson dated 

March 24, 2014. Dr. Wilson reviewed her history of injury and the conditions for which he 

provided treatment. He noted that in late April and early May 2013 appellant attempted to return 

to work on a part-time basis for four hours a day, which escalated her pain level and paresthesia. 

In a note dated February 24, 2014, Dr. Wilson noted that on February 22, 2013 she did not return 

to work as she tried to go hiking and experienced left side pain. Appellant also drove for one 

hour and experienced tingling down her left leg and arm as well as low back and cervical pain. 

By decision dated June 23, 2014, OWCP declined to reopen appellant’s claim for 

consideration of the merits finding that the evidence submitted was irrelevant as it did not 

address her disability for work on or after March 7, 2013. 

Dr. Wilson completed a report on July 2, 2014 and noted that appellant was still working 

for the noxious weed board and having continued issues with her neck and left arm. 
5

Appellant testified at the oral hearing, regarding the January 21, 2014 OWCP decision, 

on August 8, 2014. She stated that she was employed four and a half months out of the year with 

the local noxious week board. Appellant stated that she was no longer working at the employing 

establishment. She stopped in October 2013 because of difficulty using her computer and 

driving so that she could not perform her normal field representative duties. Appellant described 

her preinjury employment as working for the employing establishment for 14 days a month eight 

hours a day and then worked an additional eight hours on those days for the noxious weed board. 

After she completed the employing establishment assignment, she worked the remaining days of 

the month as a noxious weed inspector for eight hours a day. Following her injury and in 

keeping with Dr. Wilson’s restrictions, appellant earned only half her wages from both 

employing establishments. She stated that the employing establishment gave her only 10 cases 

rather than the 25 she received before her accident. Appellant testified that she worked four 

hours a day almost every day so that she could get her work done for both employing 

establishments, but she never worked more than four hours a day for either employing 

establishment. 

The employing establishment responded on September 11, 2014 and stated that appellant 

was a permanent employee working intermittent hours. Appellant had no guarantee of hours as a 

field representative. The employing establishment stated that the lost time was calculated by 

average hours during the 52 weeks prior to the injury. 

By decision dated October 8, 2014, OWCP’s hearing representative found that appellant 

failed to submit the necessary medical evidence addressing the claimed periods of disability to 

establish entitlement to wage-loss compensation on and after June 16, 2013 and affirmed 

OWCP’s January 21, 2014 decision. 

The Board reviewed OWCP’s June 23 and October 8, 2014 decisions on April 17, 2015 

and found that OWCP properly declined to reopen appellant’s claim for consideration of the 

merits on June 23, 2014 and that she had submitted no medical evidence establishing that she 

was totally disabled on or after June 16, 2013.5

 

Following the Board’s April 17, 2015 decision, appellant submitted additional medical 

evidence from Dr. Wilson dated November 20, 2014, January 20, March 31, and June 18, 2015. 

Dr. Wilson noted that she had many subjective complaints, but few objective findings or 

conditions to “fix.” He also reported that appellant quit her Census job, but had returned to her 

noxious weed position. Dr. Wilson diagnosed chest wall muscle strain and cervical nerve root 

impingement. 

Appellant underwent a nerve conduction velocity study in 2014, which was normal with 

no electrophysiological evidence for entrapment neuropathy, peripheral polyneuropathy, 

plexopathy, radiculopathy, or myopathy affecting the left upper or lower extremity. 

Dr. Wilson provided appellant’s work restrictions on January 2, March 31, June 18, 

July 28, August 22, and October 30, 2015 as performing modified duty, lifting, pushing, and 

pulling less than 20 pounds. He did not indicate that she could work less than eight hours a day. 

 5

 Docket Nos. 14-1804 and 15-0314 (issued April 17, 2015). 
6

Appellant underwent a lumbar magnetic resonance imaging (MRI) scan on July 14, 2015 

which demonstrated a disc herniation at L5-S1 which contacted the right S1 nerve root. On 

August 19, 2015 he underwent a cervical MRI scan, which demonstrated a C3-4 disc protrusion, 

C4-5 small annular disc bulge, and C6-7 small right paracentral disc protrusion. 

In notes dated September 22 and 27, 2015 as well as October 10, 2015, Dr. Wilson 

reviewed appellant’s electrodiagnostic testing and reported that her L5-S1 disc herniation had 

increased with inferior migration of the extrusion contacting the right S1 nerve root. He noted 

that appellant reported that she was experiencing left leg sciatica extending down into her big 

toe, but that her electromyograph was negative. 

In a letter dated March 2, 2016, counsel requested reconsideration. He resubmitted the 

forms from Dr. Wilson indicating that appellant could perform modified duty lifting less than 20 

pounds from July 28 and September 21, 2015 as well as the cervical and lumbar MRI scans. 

By decision dated April 11, 2016, OWCP declined to reopen appellant’s claim for 

consideration of the merits. It reviewed the medical reports and forms from Dr. Wilson and 

found that these records were irrelevant to the issue for which her claim for disability was 

denied. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.6 

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain 

review of the merits of the claim by submitting in writing an application for reconsideration, 

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.7 

Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is 

timely, but does meet at least one of these three requirements, OWCP will deny the application 

for review without reopening the case for a review on the merits.8

 Section 10.607(a) of OWCP’s 

regulations provides that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.9

ANALYSIS 

The Board finds that OWCP properly declined to reopen appellant’s claim for review of 

the merits. 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.608. 

9 Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 2.1602.4 

(October 2011). 
7

Appellant, through counsel, submitted a timely request for reconsideration of the 

October 8, 2014 OWCP decision finding that she had not submitted necessary medical evidence 

to establish entitlement to wage-loss compensation for total disability on and after June 16, 2013. 

In support of her request for reconsideration, appellant submitted a series of new notes 

and form reports from Dr. Wilson. These reports and notes are insufficient to require OWCP to 

reopen her claim for consideration of the merits, as the notes are cumulative of those previously 

considered. Dr. Wilson again failed to support any period of total disability as a result of 

appellant’s accepted employment injury. His reports continued to indicate that she could 

perform modified duty with no restriction on the number of hours she could work. As these 

notes and form reports do not address the central issue in the case, a period of total disability on 

or after June 16, 2013, OWCP properly declined to reopen appellant’s claim for consideration of 

the merits. 

CONCLUSION 

The Board finds that OWCP properly declined to reopen appellant’s claim for 

consideration of the merits. 

ORDER 

IT IS HEREBY ORDERED THAT April 11, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: November 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board