United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.B., Appellant 

and 

U.S. POSTAL SERVICE, NETWORK 

DISTRIBUTION CENTER, Cincinnati, OH, 

Employer 

__________________________________________ 

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Docket No. 16-1739 

Issued: August 29, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 31, 2016 appellant, through counsel, filed a timely appeal from a July 22, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from OWCP’s last merit decision, dated June 2, 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 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

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

FACTUAL HISTORY 

On March 25, 2010 appellant, then a 49-year-old mail handler, injured her right shoulder 

while lifting a heavy box filled with mail. She filed a traumatic injury claim (Form CA-1) on 

March 29, 2010, which OWCP initially accepted for right shoulder sprain. OWCP subsequently 

expanded appellant’s claim to include right shoulder rotator cuff tear. It also accepted a 

recurrence of disability beginning October 15, 2010 and placed appellant on the periodic 

compensation rolls effective November 21, 2010. On December 2, 2011 appellant underwent 

OWCP-approved right shoulder surgery. She continued to receive wage-loss compensation for 

temporary total disability through December 3, 2012, at which time she returned to work in a 

full-time, limited-duty capacity.3

On July 29, 2014 appellant filed a claim for compensation (Form CA-7) for intermittent 

wage loss during the period July 15 through 27, 2014. The employing establishment verified 

(Form CA-7a) that appellant had accumulated 30.42 hours of leave without pay (LWOP) 

between July 13 and 25, 2014. She worked an 8-hour shift on July 13, 14, 18, and 25, 2014 and 

on the other six workdays, appellant’s hours worked varied between 1.2 and 5.3 hours per shift. 

On August 5, 2014 OWCP wrote to the employing establishment inquiring about the 

circumstances surrounding appellant’s intermittent wage loss during the claimed period. It 

specifically asked whether the employing establishment had been unable to accommodate 

appellant’s current work restrictions or if she had experienced a new work-related injury. 

By letter to appellant dated August 5, 2014, OWCP requested additional factual and 

medical evidence to establish disability for work from July 15 to 24, 2014, including medical 

documentation to establish that she either had medical treatment or was unable to work as a 

result of her work injury for all dates claimed. It afforded appellant 30 days to submit the 

requested information. Appellant did not submit any additional medical evidence relevant to the 

claimed period of disability. 

By letter dated August 20, 2014, the employing establishment advised that they had been 

accommodating appellant’s work restrictions for eight hours a day since she accepted a modified 

job offer on December 3, 2012. 

By decision dated September 9, 2014, OWCP denied appellant’s claim for compensation 

for wage loss from July 15 to 24, 2014, as the evidence of record failed to establish any disability 

for work during this period due to the March 25, 2010 work injury. 

 3

 In April 2012, appellant resumed limited-duty work for a brief period until the employing establishment was no 

longer able to accommodate her work restrictions in May 2012. 
3

Appellant, through counsel, timely requested a hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on April 14, 2015. 

During a September 15, 2014 telephone conversation (Form CA-110) and subsequently 

through written correspondence dated September 22 and October 5, 2014, appellant advised 

OWCP that the employing establishment had been sending her home after a few hours of work 

whenever it felt that it did not have enough work for her. She explained that she was not 

claiming a new work-related injury. Appellant further stated that she was willing to work 40 

hours per her medical restrictions. She reiterated that her claimed wage loss was because the 

employing establishment did not have work for her. 

By decision dated June 2, 2015, an OWCP hearing representative affirmed the 

September 9, 2014 decision. The hearing representative found that appellant had not submitted 

evidence sufficient to establish that employing establishment sent her home due to a lack of work 

within her medical restrictions. Consequently, OWCP denied her claim for intermittent wage loss 

during the period July 15 through 24, 2014. 

On June 1, 2016 counsel requested reconsideration. In support of the request, he 

submitted several reports from Dr. Muhammad Munir, Board-certified in anesthesiology and 

pain medicine. Counsel also submitted an April 22, 2016 letter from the Office of Personnel 

Management (OPM) advising appellant that it had determined that she was disabled from 

performing her mail handler position due to rotator cuff syndrome and osteoarthritis of the right 

shoulder. 

In a June 29, 2015 report, Dr. Munir advised that appellant should be kept out of work, 

because any type of activity was aggravating her shoulder pain, secondary to shoulder arthritis 

and rotator cuff syndrome. He determined that she was incapacitated due to her pain and opined 

that being away from work had helped her in the past. Dr. Munir further advised that keeping 

appellant off work for three months might improve her condition. 

In a January 5, 2016 report, Dr. Munir advised that appellant should be kept off work, as 

any activity was aggravating her “left shoulder pain” secondary to her shoulder injury and 

arthropathy. He related that she was incapacitated due to her pain and reported that these 

limitations had helped appellant maintain her level of activity in the past. Dr. Munir explained 

that keeping her out of work for another three months may continue to improve her condition. 

In a March 28, 2016 note, Dr. Munir advised that appellant was currently under his care, 

and he requested that she be excused from work due to incapacity. 

In an April 5, 2016 report, Dr. Munir asserted that appellant was incapacitated due to her 

medical conditions. He asked that she be excused from work for the period April 5 through 

June 28, 2016. 

In a May 23, 2016 report, Dr. Munir related that appellant was experiencing left shoulder 

pain secondary to rotator cuff syndrome, as well as osteoarthritis of the shoulder. He reported 

that her pain started at work due to repetitive duties with the employing establishment. 

Dr. Munir advised that appellant had originally injured her right shoulder and, because of the 

right shoulder injury and subsequent surgery, she was forced to use her left hand and arm, which 
4

resulted in a left shoulder injury directly related to her employment. He opined that she had tried 

to return to work, but this aggravated her condition and worsened her pain. Dr. Munir opined 

that appellant was incapacitated as a result of the injury she received at work. He believed that 

she had sustained an injury to her left shoulder and as a direct result of her work-related injury. 

By decision dated July 22, 2016, OWCP denied appellant’s request for reconsideration 

because it neither raised substantive legal questions nor included relevant and pertinent new 

evidence sufficient to require OWCP to review its prior decision. It explained that the recent 

medical evidence from Dr. Munir was irrelevant because it did not address appellant’s claimed 

disability during the period July 15 to 24, 2014. 

LEGAL PRECEDENT 

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

matter of right.4

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 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.6 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.7 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.8

ANALYSIS 

Appellant has not shown that OWCP erroneously applied or interpreted a specific point 

of law, nor has she advanced a relevant legal argument not previously considered by OWCP. 

She previously alleged that her claimed wage loss was because the employing establishment 

could not fully accommodate her work restrictions. The employing establishment claimed to 

have been providing appellant full-time limited-duty work since December 3, 2012. On 

reconsideration counsel did not specifically address that particular basis for the denial of 

benefits. Rather, he submitted several medical reports from Dr. Munir who indicated that 

 4

 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). 

5

 20 C.F.R. § 10.607. 

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

(February 2016). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Id. 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 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.608(a), (b). 
5

appellant had sustained an injury to her left shoulder as a consequence of her employmentrelated right shoulder injury. Dr. Munir also directed that appellant be kept out of work in 

June 2015, and again from January through May 2016 due to her left shoulder complaints. He 

opined that being at work would preclude an aggravation and worsening of appellant’s left 

shoulder condition. However, Dr. Munir did not specifically address whether appellant was 

capable of working full time during the period July 15 to 24, 2014. The Board has held that the 

submission of evidence that does not address the particular issue involved in the case does not 

constitute a basis for reopening the claim.9

 The evidence appellant submitted in connection with 

her June 1, 2016 reconsideration request is irrelevant to the issue on appeal; i.e., whether she has 

met her burden of proof to establish disability from work during the period July 15 to 24, 2014 

due to her accepted right shoulder condition.10 

The June 1, 2016 reconsideration request failed to show that OWCP erroneously applied 

or interpreted a specific point of law. Counsel also did not advance a relevant legal argument not 

previously considered by OWCP. Lastly, the newly submitted evidence was irrelevant to the 

issue on reconsideration. Accordingly, OWCP did not abuse its discretion in denying appellant’s 

request for a review of the merits of her claim. 

CONCLUSION 

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

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

 9 See David J. McDonald, 50 ECAB 185 (1998). 

10 See Patricia G. Aiken, 57 ECAB 441 (2006). 
6

ORDER 

IT IS HEREBY ORDERED THAT the July 22, 2016 decision of the Office of 

Worker’s Compensation Programs is affirmed. 

Issued: August 29, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board