United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.Z., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

White Plains, NY, Employer

__________________________________________

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Docket No. 17-0158

Issued: June 26, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 31, 2016 appellant, through counsel, filed a timely appeal from a June 7, 2016 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 

days has elapsed between the last OWCP merit decision, dated October 16, 2015, to the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case. 

 

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 5 U.S.C. § 8101 et seq.
2

ISSUE

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

merits of her claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On June 9, 2014 appellant, then a 43-year-old postmaster, filed a notice of traumatic injury 

(Form CA-1) alleging that, on June 5, 2014, her vehicle was rear-ended while in the performance 

of duty. She alleged that she sustained injuries to her right foot, both shoulders, mid-stomach, and 

right wrist, with pain and headaches. Appellant stopped work on June 6, 2014. OWCP placed 

appellant on the supplemental rolls.

OWCP initially denied appellant’s claim on July 16, 2014. Appellant requested 

reconsideration on August 30, 2014. By decision dated March 16, 2015, OWCP vacated the 

July 16, 2014 decision and accepted her claim for contusion of abdominal wall, left; contusion of 

chest wall, left; contusion of right foot and right shoulder; and sprain of neck. By separate decision 

also dated March 16, 2015, OWCP denied appellant’s request for the expansion of the acceptance 

of her claim to include additional conditions of: cervical subluxation; cervical radiculopathy; 

thoracic strain; lumbosacral strain; right wrist sprain; right wrist tendonitis; right foot sprain, right 

ankle sprain, ruptured tendon of right ankle/foot; anxiety; depression; and post-traumatic stress 

disorder.3

Appellant’s treating physician, Dr. Ronald Coffey, a Board-certified family practitioner, 

diagnosed contusions, pain, and anxiety. He saw appellant on July 2, 11, 28, and August 12, 2014. 

In a July 28, 2014 report, Dr. Coffey noted that, on June 5, 2014, appellant was in a car accident 

and had chief complaints of: pain in the abdomen; tenderness in the lower left quadrant of her 

stomach where the seatbelt was located; soreness in the neck; and pain near the base of her fifth 

metatarsal. He explained that the hospital report revealed that appellant was having lateral neck 

pain and pain in the lateral right foot, as well as a burning sensation where she was wearing a seat 

belt on the left clavicle and left lower abdomen. 

Dr. Coffey noted that appellant was seen at his office on June 23, 2014 and he ordered a

cervical spine magnetic resonance imaging scan and x-ray of the right foot, as she had complaints 

of right wrist pain, right foot pain, swollen and bruised and cannot bend toes fully, along with neck 

and mid back pain, and constant headaches ranging from full to stabbing. He also found burning 

sensation and tenderness in her lower left abdomen left by the seat belt with apparent bruising and 

on the upper left chest area with soreness to the right shoulder. Dr. Coffey determined that she 

had tenderness over the lower cervical spine, tenderness of the lower left abdomen, and lumbar 

tenderness with tenderness in the right knee and foot. He diagnosed: sprain injury to the cervical 

area; cervical subluxation; cervicalgia; lumbago; spasm of muscles; right wrist sprain, tendinitis

in the right wrist; foot sprain; trauma to right foot; unspecified sprain to the ankle; ruptured tendon 

 

3 The record reflects that appellant has a nonwork-related anxiety and Raynaud’s syndrome. In 1997 appellant

underwent a nonwork-related right ulnar nerve disposition.
3

of the ankle/foot on the right; multiple contusions of the upper right shoulder, right foot, lower left 

stomach, and upper left chest; and anxiety increased due to trauma. 

Dr. Coffey also indicated that appellant had increased anxiety due to trauma and advised 

that she experienced numerous anxiety attacks. He opined that all of the above diagnoses were 

“directly correlated from the trauma caused in the 4[-]car MV accident on June 5

th 2014.”

Dr. Coffey added that all of appellant’s complaints and diagnoses were consistent with a multiple 

car accident where appellant was hit from the back while completely stopped, then causing her car 

to be pushed into the car in front of her. He also noted that it was proven further from her “initial 

complaints at the scene and in the hospital to what she has continued to experience to this day.”

Dr. Coffey advised that appellant was totally disabled from work and he continued to treat 

appellant. He also completed an attending physician’s report (Form CA-20) of the same date and 

checked the box marked “yes” in response to whether the conditions found were caused or 

aggravated by the employment activity. Dr. Coffey filled in “no doubt at all, based on initial 

ambulance report, emergency room report, and physical examination.”

In an August 1, 2014 report, Dr. Surinder Jindal, a Board-certified neurologist, examined 

appellant and found normal examination findings with the exception of spasm of the cervical 

paraspinal muscles, limited range of motion of the cervical spine and tenderness. He related that 

appellant had a history of motor vehicle accident at work and diagnosed: cervical strain with 

cervical radiculopathy; thoracic strain; lumbosacral strain; myofascial pain involving the right 

wrist and foot region; cervicogenic headaches and exacerbation of her underlying anxiety and 

depression. Dr. Jindal opined that her present status was “causally related to the accident on 

June 5, 2014 as per history.” He recommended conservative management and physical therapy. 

On March 24, 2015 OWCP referred appellant for medical management. 

In an April 22, 2015 report, Dr. Jindal noted appellant’s history and explained his initial 

clinical impression was that appellant had a history of motor vehicle accident while at work with 

the cervical strain with cervical radiculopathy, thoracic strain, lumbosacral strain; myofascial pain 

involving the right wrist; and foot region; and cervicogenic headaches; and exacerbation of her 

underlying anxiety and depression. He opined that appellant’s present status was causally related 

to her accident on June 5, 2014 as per her history. Dr. Jindal indicated that in his last examination 

on April 16, 2015, she had complaints of persistent neck pain, stiffness. He indicated that she 

could not sit or stand for a long time and her symptoms continued and were persisting. Dr. Jindal

noted that she had multiple injuries involving the neck, right wrist, the lower back, foot, and right 

shoulder. He opined that appellant’s symptoms were causally related to the motor vehicle accident 

at work on June 5, 2014. Dr. Jindal diagnosed: cervical strain; cervical radiculopathy; myofascial 

pain involving the right foot; thoracic strain; lumbosacral strain; and right wrist strain. He advised 

that appellant received physical therapy, was receiving pain management with local trigger point 

injections, and was prescribed different anti-inflammatory medications. Dr. Jindal recommended 

conservative pain management. He opined that appellant could work light duty with restrictions. 

Dr. Jindal continued to treat appellant and saw her on May 11, July 20, and 

August 17, 2015. His findings on examination included tenderness and spasm of the paraspinal 

cervical muscles. Dr. Jindal recommended conservative pain management.
4

On June 23, 2015 OWCP referred appellant for a second opinion, along with a statement 

of accepted facts, a set of questions and the medical record to Dr. Patrick Hughes, a Board-certified 

neurologist. 

In a report dated July 21, 2015, Dr. Hughes described appellant’s history of injury and 

treatment, and provided examination findings. He noted that she could not abduct the left arm at 

the shoulder due to pain; that she had normal strength in the right deltoid and the biceps, triceps, 

infraspinatus, brachioradialis, extensor carpi radialis, extensor carpi ulnaris extensor digitorum, 

and interossei muscles; and that she could not extend the right wrist due to pain. Dr. Hughes also 

found normal strength in the abductor pollicis brevis and flexor digitorum profundus muscles along 

with normal strength in the iliopsoas, quadriceps and hip abductors and adductor muscles. He

determined that there were no current objective medical findings that indicated that the accepted 

injuries were present and active. Dr. Hughes opined that the cervical strain had resolved as she 

did not have symptoms or findings on neurologic examination or on the imaging studies of the 

cervical spine to account for a C6 radiculopathy. He noted that the electromyogram findings of 

the lumbar spine were consistent with a diagnosis of lumbosacral strain and not with bilateral S1 

radiculopathy. Furthermore, the thoracic and lumbosacral strains had resolved. Dr. Hughes

opined that he had reviewed the job description for a postmaster and advised that appellant was 

not disabled from performing her job duties. He completed a work capacity evaluation (OWCP5c) form on July 23, 2015 and advised that she could return to her usual job without restrictions.

In a July 27, 2015 letter, the employing establishment offered appellant a modified 

assignment as an operation support specialist, encompassing the restrictions provided by

Dr. Hughes. 

In an August 10, 2015 response to a letter from OWCP seeking further clarification of his 

opinion, Dr. Hughes noted that appellant was not disabled from work due to sprain and contusion 

sustained on June 5, 2014. He explained that his decision was based on a lack of objective findings 

on neurological examination and on the imaging studies of the cervical spine to substantiate her 

continuing examination and on the imaging studies of the cervical spine to substantiate her 

continuing complaints of disabling pain. Dr. Hughes indicated that there was no objective finding 

to indicate that the disc herniation at L4-S1 was causing symptoms. He advised that it was not 

unusual for people to have disc herniations at L5-S1 without causing symptoms. Dr. Hughes

determined that there were no medical findings that supported current disability to be medically 

connected to the work injury or to the factors of employment for which the case was accepted. He

opined that the accepted condition had resolved and she had full recovery from her neck sprain, 

chest, abdomen, shoulder, and foot contusions. Dr. Hughes further opined that he believed she 

could work without restrictions. He explained that there were no positive objective medical 

findings to support that the injuries were present and active. Dr. Hughes explained that appellant

had made a full and complete recovery. He related that the reported subjective findings were not 

supported or substantiated by objective findings. Dr. Hughes indicated that appellant could 

perform full-duty work without restrictions.

On September 15, 2015 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits as the medical evidence of record established that she no longer had any 
5

residuals or continuing disability from work stemming from her work-related injury of 

June 5, 2014. It accorded the weight of the evidence to Dr. Hughes.4 

In a letter dated October 12, 2015, counsel argued that appellant’s treating physician opined 

that appellant continued to suffer disability from employment as a result of her work injuries. He 

argued this was a direct conflict with the second opinion physician and it was improper to terminate 

her benefits. 

In an October 12, 2015 report, Dr. Jindal noted that appellant had complaints of cervical 

pain and stiffness, and noted certain points which were triggering pain. He advised that her 

symptoms worsened. Dr. Jindal noted that appellant had an injury at work and the numbness was 

bad. He indicated that she continued to be symptomatic, with pain a 10 on a scale of 10. Dr. Jindal

noted the recent change to colder weather caused an exacerbation of pain and she could not sit or 

stand for a long time. He examined appellant and determined that she was in no acute distress. 

Dr. Jindal found normal strength in all muscle groups, deep tendon reflexes of +1 and decreased 

sensation in the C5-6 distribution. He noted that appellant had tenderness and spasm in the 

paraspinal cervical muscles and right lateral flexion of 20 degrees and extension of 30 degrees. 

Dr. Jindal diagnosed cervical radiculopathy with radicular and myofascial pain with history of 

head trauma and recommended conservative pain management. He provided trigger points 

involving the bilateral, cervical trapezius, supraspinatus, and rhomboid muscles. 

By decision dated October 16, 2015, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective October 15, 2015 finding that she no longer had any 

employment-related residuals or disability. It found that the weight of the evidence rested with

Dr. Hughes, who determined that appellant could return to her date-of-injury job and that the 

residuals of the accepted conditions had ceased. 

On March 9, 2016 appellant, through counsel, requested reconsideration. Counsel noted 

as issues for reconsideration that not all injuries and conditions sustained as a result of the accepted 

employment injury had been accepted as compensable and that the second opinion report of

Dr. Hughes was insufficient to support termination of wage-loss compensation and medical 

benefits.

In support of his reconsideration request, counsel submitted on March 14, 2016 an 

August 8, 2014 report, Dr. Todd Rochman, a Board-certified psychiatrist, who noted that appellant 

was experiencing panic attacks which were occurring for months post motor vehicle accident. 

Dr. Rochman also noted that in 1995 she was trampled by a horse and had ulnar nerve 

transposition. He advised that appellant had pain from the accident to include: foot, wrist, neck,

back, and headaches. Dr. Rochman diagnosed acute stress disorder and anxiety disorder. He

recommended individual psychotherapy. Dr. Rochman continued to treat appellant and submit 

reports dated February 4 and October 28, 2015. He recommended that appellant continue with 

medication management and brief psychotherapy. 

 

4 OWCP noted that the latest report from appellant’s physician, Dr. Jindal was dated April 22, 2015 and he 

recommended limited-duty work. However, appellant did not return to limited duty until August 10, 2015. It 

explained that the only examination findings from reports dated May 11, July 20, and August 17, 2015 were 

tenderness and spasm of the paraspinal cervical muscles. 
6

In a November 9, 2015 report, Dr. Jindal noted appellant’s history of injury and treatment, 

examined appellant and provided findings. He noted that appellant had a history of cervical strain 

and radicular and myofascial pain and a history of neuropathic and myofascial pain. Dr. Jindal

recommended conservative pain management. He provided trigger points involving the bilateral, 

cervical, trapezius, supraspinatus, and rhomboid muscles. Dr. Jindal indicated that appellant was 

quite symptomatic and would take medicine as needed. He related that appellant was given a note 

that she could work a new offered job on a regular basis that did not involve lifting, pulling, or 

pushing.

OWCP also received duplicate copies of the July 28, 2014 report from Dr. Coffey and the 

April 22 and October 2, 2015 reports from Dr. Jindal. It also received October 12, 2015 laboratory 

reports. 

By decision dated June 7, 2016, OWCP denied appellant’s request for reconsideration,

finding that her request neither raised substantial legal questions nor included new and relevant 

evidence. 

LEGAL PRECEDENT

Under section 8128(a) of FECA,

5 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provides that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that:

“(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 evidence not previously considered by 

OWCP.”

6

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP

without review of the merits of the claim.7

ANALYSIS

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

 

5 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.606(b).

7

Id. at § 10.608(b).
7

In his May 9, 2016 request for reconsideration, counsel did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not 

previously considered by OWCP. Thus appellant is not entitled to a review of the merits of her 

claim based on the first and second above-noted requirements under section 10.606(b)(3).

In support of the March 9, 2016 reconsideration request, counsel asserted that the medical 

evidence of record is insufficient to support termination of benefits. He specifically asserted that 

the medical records submitted from Drs. Rochman, Jindal, and Coffey are sufficient to overcome 

the weight accorded to the opinion of Dr. Hughes as a second opinion medical examiner. 

Counsel relied upon the medical opinion of Dr. Rochman to support ongoing residuals 

from diagnosed acute stress disorder and anxiety disorder. The Board notes, however, that OWCP 

previously considered which conditions were accepted in prior decisions and denied the additional 

requested conditions including stress and anxiety disorders. The Board notes that these arguments 

are repetitive and previously considered by OWCP and thus does not constitute a basis for 

reopening a case for review on the merits.

8

The remainder of the medical evidence cited in support of reconsideration is also 

cumulative or duplicative of that already in the record. It, therefore, has no evidentiary value in 

establishing the claim and does not constitute a basis for reopening a case for further merit review.9

In a November 9, 2015 report, Dr. Jindal noted appellant’s history of injury and treatment, 

examined appellant and provided findings. He noted that appellant had a history of cervical strain 

and radicular and myofascial pain and a history of neuropathic and myofascial pain. Dr. Jindal

recommended conservative pain management. He related that appellant was given a note that she 

could work a new offered job on a regular basis that did not involve lifting, pulling, or pushing. 

The Board notes that while this report is new, Dr. Jindal did not offer any opinion on continued 

disability. Evidence which does not address the particular issue involved does not constitute a 

basis for reopening a case.10

OWCP also received copies of prior reports to include: a copy of the July 28, 2014 report 

from Dr. Coffey; the April 22 and October 12, 2015 reports from Dr. Jindal; and October 12, 2015 

laboratory reports. However, this is not new or relevant medical evidence. 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.11

Appellant, therefore, 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 constitute

 

8 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

9

Id.

10 See B.D., Docket No. 16-1177 (issued October 27, 2016).

11 Id. 
8

new and relevant evidence not previously considered. As she did not meet any of the necessary 

regulatory requirements, she is not entitled to further merit review. 

On appeal counsel for appellant reiterated prior arguments. He argues that appellant 

submitted relevant and pertinent new medical evidence. Counsel also argues that appellant had 

psychiatric conditions that were work related. However, as noted above, the Board does not have 

jurisdiction over the merits of the termination decision. 

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim under 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the June 7, 2016 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 26, 2018

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