United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Clarksville, AR, Employer 

__________________________________________ 

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Docket No. 16-0245 

Issued: April 8, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 24, 2015 appellant, through counsel, filed a timely appeal of a June 4, 

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

than 180 days has elapsed between August 7, 2013, the date of OWCP’s most recent merit 

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

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of 

appellant’s claim. 

ISSUE 

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

pursuant to 5 U.S.C. § 8128(a). 

On appeal counsel asserts that the June 4, 2015 decision was contrary to law and fact. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a March 25, 2014 decision, the Board 

found that appellant did not establish that the conditions of disc protrusion at L5-S1 and a 

bulging disc at L4-5 were caused or aggravated by his January 4, 2012 employment injury. The 

Board affirmed an August 7, 2013 OWCP decision.2

 The findings of facts and conclusions of 

the previous Board decision are incorporated herein by reference. 

On March 6, 2015 appellant, through counsel, requested reconsideration. In a January 7, 

2015 report, Dr. Kevin J. Collins, a Board-certified physiatrist, noted a history that appellant 

injured his back while lifting parcels at work, that magnetic resonance imaging (MRI) scans 

demonstrated disc bulges and protrusions, and that appellant had lumbar spine surgery. He 

reported that a recent MRI scan demonstrated enhancing scar tissue and a new herniation above 

the level of the previous surgery. Dr. Collins described appellant’s complaint of constant, severe 

radiating low back pain, and indicated that appellant had not worked since January 2012. He 

described physical examination findings and diagnosed failed low back syndrome with ongoing 

pain. Dr. Collins advised that appellant could not work due to a combination of chronic pain and 

large doses of pain medication. 

By decision dated June 4, 2015, OWCP denied appellant’s reconsideration request. It 

found that the evidence submitted was cumulative and similar to evidence previously of record 

and was, therefore, insufficient to warrant merit review. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.3 Section 10.608(a) of OWCP’s regulations provides that a timely 

request for reconsideration may be granted if OWCP determines that the employee has presented 

evidence and/or argument that meets at least one of the standards enumerated in section 

10.606(b)(3).4 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

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

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

 2

 Docket No. 14-48 (issued March 25, 2014). On January 9, 2012 appellant, then a 33-year-old city carrier 

(transitional employee) filed a traumatic injury claim (Form CA-1) alleging that on January 4, 2012 he injured his 

low back when he tripped while ascending stairs when delivering mail. He stopped work that day. Following an 

initial May 24, 2012 denial, on December 14, 2012 an OWCP hearing representative accepted a lumbosacral strain. 

The hearing representative further found however that appellant did not establish any further lumbar conditions, 

including disc bulge and protrusion at the L4-5 and L5-S1 levels for which he had undergone surgery on 

July 25, 2012. On July 2, 2013 appellant, through counsel, requested reconsideration. In a merit decision dated 

August 7, 2013, OWCP denied modification of the prior decision, finding that the medical evidence submitted was 

insufficient to establish that disc bulges and protrusions at L4-5 and L5-S1 were causally related to the January 4, 

2012 employment injury. 

3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.608(a). 
3

evidence not previously considered by OWCP.5

 Section 10.608(b) provides that when a request 

for reconsideration is timely but fails to meet at least one of these three requirements, OWCP 

will deny the application for reconsideration without reopening the case for a review on the 

merits.6

ANALYSIS 

The only decision before the Board in this appeal is the nonmerit decision of OWCP 

dated June 4, 2015 which denied appellant’s application for review. The merit issue in this case 

was whether appellant established that herniated lumbar discs at L4-5 and L5-S1 were causally 

related to a January 4, 2012 employment injury. 

The Board finds that, as appellant did not assert that OWCP erroneously applied or 

interpreted the law or advance a relevant legal argument not previously considered by OWCP, he 

was not entitled to a review of the merits of his claim based on the first and second above-noted 

requirements under section 10.606(b)(3).7

 

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted a January 7, 2015 report from Dr. Collins, described above. Dr. Collins noted the 

history of injury and that appellant had not worked since January 2012. He described a new 

physical examination and recent MRI scan findings and diagnosed failed back syndrome with 

ongoing pain. Dr. Collins concluded that appellant could not work due to a combination of 

chronic pain and large doses of pain medication. 

The Board finds that Dr. Collins’ report, which had not previously been reviewed by 

OWCP, constitutes new, relevant, and pertinent evidence in regard to the matter of whether 

appellant established that herniated lumbar discs at L4-5 and L5-S1 were causally related to a 

January 4, 2012 employment injury. It is not necessary that the evidence be sufficient to 

establish the claim, only that it is new, relevant, and pertinent to the issue presented.8

As appellant submitted pertinent evidence on reconsideration that was not previously 

considered by OWCP, he is entitled to a review of the merits of his claim under section 

10.606(b)(3) of OWCP’s regulations.9 The case shall therefore be remanded to OWCP to 

consider whether Dr. Collins’ January 7, 2015 report, submitted by appellant on reconsideration, 

is sufficient to require further development. The Board will, therefore, set aside OWCP’s June 4, 

2015 decision. After this and such further development deemed necessary, OWCP shall issue an 

appropriate merit decision. 

 5 Id. at § 10.606(b)(3). 

6 Id. at § 10.608(b). 

7 Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008). 

8 C.L., Docket No. 14-1904 (issued May 18, 2015). 

9 Supra note 7. 
4

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for reconsideration 

pursuant to section 8128(a) of FECA.

ORDER 

IT IS HEREBY ORDERED THAT the June 4, 2015 decision of the Office of Workers’ 

Compensation Programs is set aside and the case is remanded to OWCP for proceedings 

consistent with this decision of the Board. 

Issued: April 8, 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