United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 17-0350 

Issued: March 9, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 6, 2016 appellant filed a timely appeal from a September 28, 2016 

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

180 days elapsed from OWCP’s last merit decision, dated January 20, 2016 to 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 the case.2

ISSUE 

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

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence after OWCP rendered its September 28, 2016 

decision. The Board’s jurisdiction however is limited to reviewing the evidence that was before OWCP at the time 

of its final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. 

§ 501.2(c)(1). 
2

FACTUAL HISTORY 

Appellant, a 58-year-old letter carrier, has an accepted occupational disease claim (Form 

CA-2) for right shoulder impingement syndrome, right rotator cuff tear/sprain, and right elbow 

enthesopathy, which arose on or about July 26, 2013. OWCP paid her wage-loss compensation 

for temporary total disability, effective March 10, 2014.3

 She returned to full-time work with 

restrictions on June 3, 2014. Appellant stopped work, effective September 30, 2014, and 

subsequently filed a claim for compensation (Form CA-7) for wage loss beginning 

October 1, 2014.4

On March 10, 2015 appellant underwent right shoulder arthroscopic surgery, which 

OWCP authorized. Additionally, OWCP paid her wage-loss compensation for temporary total 

disability beginning March 10, 2015.5

 

In a July 27, 2015 development letter, OWCP advised appellant of the need to submit 

medical evidence to support her claimed disability for the period October 1, 2014 through 

March 9, 2015. Appellant was afforded 30 days to submit the requested medical evidence. 

OWCP subsequently received a July 17, 2015 report from Dr. Louis D. Zegarelli, a 

Board-certified family practitioner. Dr. Zegarelli noted a history of a work-related right shoulder 

injury on or about July 26, 2013. He reported that appellant had been unable to work between 

March 10 and June 2, 2014 because of her accepted work injury.6

 Dr. Zegarelli further noted 

that appellant was “cautiously” returned back to work approximately June 3, 2014, and she 

continued to work with “significant difficulty” until her symptoms grew so severe that she was 

unable to continue. He indicated that appellant was taken off work, effective October 1, 2014, 

and due to the severity of her condition, she underwent right shoulder surgery on 

March 10, 2015. Dr. Zegarelli explained that he was dictating the note to assist appellant in her 

attempt to obtain work-related benefits for the period October 1, 2014 through March 9, 2015. 

He diagnosed status post right shoulder surgical intervention (March 10, 2015) for internal 

derangement, documented posterior labral tear, as well as impingement syndrome. 

By decision dated September 14, 2015, OWCP denied appellant’s claim for wage-loss 

compensation for the period October 1, 2014 to March 9, 2015. With respect to Dr. Zegarelli’s 

July 17, 2015 report, it noted that there was no objective evidence to support why appellant was 

unable to perform her duties from October 1, 2014 to March 9, 2015. 

 3

 Appellant stopped work on January 29, 2014 and used a combination of annual and sick leave to cover her 

absence through March 7, 2014. 

4

 Appellant’s September 30, 2014 work stoppage coincided with her receipt of social security disability benefits. 

5

 OWCP placed appellant on the periodic compensation rolls, effective June 28, 2015. 

6

 Although he characterized appellant’s injury as work related, Dr. Zegarelli did not mention the type of work 

appellant performed or otherwise address how she injured her right shoulder. He also did not mention that appellant 

had initially stopped work on January 29, 2014. 
3

Appellant requested reconsideration in an appeal request form received by OWCP on 

October 22, 2015. She submitted additional medical evidence including an October 4, 2015 

report in which Dr. Zegarelli indicated that the objective pathology, which was well documented 

in appellant’s medical records, ultimately required surgical intervention on March 10, 2015 and 

supported her inability to work during the period October 1, 2014 to March 9, 2015. 

In a decision dated January 20, 2016, OWCP denied modification of its September 14, 

2015 decision, finding that appellant failed to establish a recurrence of disability.7

 

Dr. Zegarelli’s latest opinion was insufficient to establish a worsening of appellant’s condition 

such that she could no longer perform her light/limited-duty assignment on or after 

October 1, 2014. 

On September 7, 2016 appellant again requested reconsideration.8

 The request was 

accompanied by a June 6, 2016 progress note from Dr. Zegarelli. Dr. Zegarelli provided 

findings of his examination on that date and diagnosed right shoulder impingement syndrome 

associated with work activities (status postsurgical intervention), mixed anxiety/depression 

associated with chronic pain/frustration, right shoulder internal derangement with documented 

posterior labral tear associated with work activities (status postsurgical intervention), and right 

shoulder rotator cuff tear tendinopathy associated with work activities (status postsurgical 

intervention). 

OWCP also received a February 5, 2016 right shoulder arthrogram that revealed severe 

tendinopathy or possibly partial thickness tearing along the undersurface of the supraspinatus 

tendon. The arthrogram also showed mild degenerative joint disease of the acromioclavicular 

joint, mild scattered bone marrow edema of the humeral head, and subchondral cyst formation. 

Additionally, OWCP received a June 6, 2016 report from Janice P. Ingram, Ed.D., a licensed 

professional counselor. Dr. Ingram detailed the course of health and behavioral counseling she 

provided for appellant on that date. She also noted a diagnosis of seasonal affective disorder and 

she described her treatment plan for appellant. 

 7

 A recurrence of disability means an inability to work after an employee has returned to work, caused by a 

spontaneous change in a medical condition which resulted from a previous injury or illness without an intervening 

injury or new exposure to the work environment that caused the illness. 20 C.F.R. § 10.5(x). Recurrence of 

disability also means an inability to work that takes place when a light-duty assignment made specifically to 

accommodate an employee’s physical limitations due to her work-related injury or illness is withdrawn or when the 

physical requirements of such an assignment are altered so that they exceed her established physical limitations. Id. 

Generally, a withdrawal of a light-duty assignment would constitute a recurrence of disability where the evidence 

established continuing injury-related disability for regular duty. Id.; Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013). A recurrence of disability does not apply when a light-duty 

assignment is withdrawn for reasons of misconduct, nonperformance of job duties or other downsizing or where a 

loss of wage-earning capacity determination is in place. 20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Part 2 -- 

Claims, Recurrences, Chapter 2.1500.2b. Absent a change or withdrawal of a light-duty assignment, a recurrence of 

disability following a return to light duty may be established by showing a change in the nature and extent of the 

injury-related condition such that the employee could no longer perform the light-duty assignment. Theresa L. 

Andrews, 55 ECAB 719, 722 (2004). 

8

 Appellant utilized the appeal request form that accompanied OWCP’s latest merit decision. 
4

By decision dated September 28, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.9

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.10 One such limitation is that the request for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.11 A timely application for reconsideration, including all supporting documents, 

must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously 

applied or interpreted a specific point of law; (ii) advances a relevant legal argument not 

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

previously considered by OWCP.12 When a timely application for reconsideration does not meet 

at least one of the above-noted requirements, OWCP will deny the request for reconsideration 

without reopening the case for a review on the merits.13

ANALYSIS 

OWCP issued a decision on January 20, 2016 denying appellant’s claimed recurrence of 

disability for the period October 1, 2014 to March 9, 2015. Appellant requested reconsideration 

of this decision in a form received by OWCP on September 7, 2016. As noted above, the Board 

does not have jurisdiction over OWCP’s January 20, 2016 decision. The issue presented on 

appeal is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), thereby 

warranting further merit review. In her request for reconsideration, appellant did not show that 

OWCP erroneously applied or interpreted a specific point of law. Appellant also did not advance 

a new and relevant legal argument not previously considered by OWCP. 

In connection with her latest request for reconsideration, appellant submitted a June 6, 

2016 progress note from Dr. Zegarelli, an attending physician, who reported the findings of his 

examination on that date and diagnosed several right shoulder conditions and mixed 

anxiety/depression associated with chronic pain/frustration. OWCP also received a June 6, 2016 

report from Dr. Ingram, who diagnosed seasonal affective disorder. Lastly, it received a 

February 5, 2016 right shoulder arthrogram, which contained several diagnoses including severe 

 9

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

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

10 20 C.F.R. § 10.607. 

11 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA) 

Procedure Manual, supra note 7 at Chapter 2.1602.4 (February 2016). Timeliness is determined by the document 

receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b. 

12 20 C.F.R. § 10.606(b)(3). 

13 Id. at § 10.608(a), (b). 
5

tendinopathy or possibly partial thickness tearing along the undersurface of the supraspinatus 

tendon. However, the additional evidence did not specifically address the primary issue of 

whether appellant was disabled from work during the period October 1, 2014 to March 9, 2015. 

Although the above-noted medical evidence was not previously of record, the Board 

finds that the submission of this evidence would not require OWCP to reopen appellant’s case 

for a review of the merits as none of this evidence is relevant to the main issue of the present 

case, i.e., whether appellant submitted medical evidence showing that her work-related condition 

worsened such that she was unable to work in her light/limited-duty position for the period 

October 1, 2014 to March 9, 2015. The submission of evidence or argument that does not address 

the particular issue involved does not constitute a basis for reopening a case.14 None of the 

medical evidence received since the January 20, 2016 decision discussed how appellant’s accepted 

work-related right upper extremity condition(s) materially worsened to the point that she was 

unable to work for the period October 1, 2014 to March 9, 2015. These reports were produced 

during a period after the claimed period of total disability and none of them contains an opinion 

regarding whether appellant was able to work between October 1, 2014 and March 9, 2015. 

Moreover, the report from Ms. Ingram is of no probative value as she is a licensed professional 

counselor, which is not included in the definition of the term “physician” under FECA.15

The underlying issue in this case is whether the medical evidence of record shows that 

appellant sustained a recurrence of disability for the period October 1, 2014 to March 9, 2015. 

That is a medical issue which must be addressed by relevant medical evidence.16 A claimant 

may be entitled to a merit review by submitting relevant and pertinent new evidence, but 

appellant did not submit any such evidence in this case. There is no medical evidence of record 

explaining why her work-related conditions prevented her from working between October 1, 2014 

and March 9, 2015. 

The Board accordingly finds that appellant has not met any of the requirements of 

20 C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied 

merit review. 

CONCLUSION 

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

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

 14 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

15 Section 8101(2) of FECA provides that the term physician includes surgeons, podiatrist, dentists, clinical 

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

by State law. See 5 U.S.C. § 8101(2); T.D., Docket No. 15-1846 (issued September 23, 2016) (a licensed 

professional counselor is not considered a physician as defined under FECA. 

16 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
6

ORDER 

IT IS HEREBY ORDERED THAT the September 28, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 9, 2017 

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