United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Newman, GA, Employer 

__________________________________________ 

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Docket No. 16-1549 

Issued: January 18, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 27, 2016 appellant, through counsel, filed a timely appeal from a March 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 February 25, 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 does not have jurisdiction over the merits of the claim. 

ISSUE 

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

under 5 U.S.C. § 8128(a). 

 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

FACTUAL HISTORY 

On January 6, 2015 appellant, then a 56-year-old carrier (city), filed a claim for traumatic 

injury (Form CA-1). She indicated that at 10:00 a.m. on January 6, 2015 she sprained her left 

upper arm. On her Form CA-1, appellant listed the cause of injury as “Tray FSS” (flat 

sequencing system), but did not otherwise describe how the alleged injury occurred. 

By letter dated January 16, 2015, OWCP advised appellant that it required additional 

factual and medical evidence to determine whether she was eligible for FECA benefits. It noted 

that she had not provided a statement or description as to how her alleged January 6, 2015 injury 

occurred. OWCP provided appellant a questionnaire to complete regarding the circumstances of 

her alleged injury. Additionally, it asked her to submit a comprehensive medical report from her 

treating physician describing her symptoms and a medical opinion explaining the cause of any 

diagnosed condition. OWCP afforded appellant 30 days to submit the requested evidence. 

Appellant did not submit any additional factual evidence. 

By decision dated February 25, 2015, OWCP denied the claim, finding that appellant had 

failed to meet her burden of proof to establish fact of injury. 

In a January 6, 2015 report, received by OWCP on March 2, 2015, Dr. Christopher A. 

Morgan, Board-certified in emergency medicine, advised that appellant felt a pop in her left 

elbow on that date while picking up a mail tub filled with packages. Appellant rated her pain as 

an eight on a scale of one to ten and reported having numbness in her fingertips. She underwent 

x-ray tests, the results of which were negative. Dr. Morgan diagnosed a soft tissue injury and 

restricted appellant from lifting more than five pounds with her left arm. 

In a January 7, 2015 report, received by OWCP on May 20, 2015, Dr. Trishanna 

Sookdeo, a specialist in family medicine, advised that appellant had worked for the employing 

establishment for 26 years as a letter carrier. Appellant reported that her duties included 

standing, walking, bending, stooping, lifting, pushing, pulling, reaching, twisting, and turning. 

Dr. Sookdeo advised that appellant began to notice pain in her left arm, left elbow, left shoulder, 

and left hand on January 6, 2015. Appellant asserted that the pain resulted from picking up a 

mail tub weighing approximately 40 pounds. She reported that she heard a pop in her left elbow 

and immediately began to feel pain, which radiated down to her fingers and hands. Dr. Sookdeo 

noted that x-rays of appellant’s left elbow were negative and revealed that she had a soft tissue 

injury. She opined that, based on appellant’s history, physical examination, and job 

responsibilities that appellant had suffered an occupational injury on January 6, 2015. 

Dr. Sookdeo diagnosed left elbow sprain and referred appellant to a chiropractor for a physical 

rehabilitation evaluation. 

In a January 16, 2015 report, received by OWCP on May 20, 2015, Dr. Sookdeo noted 

that appellant’s left elbow condition had partially improved, although she still had complaints of 

stiffness with bending of her left elbow. She related that appellant felt better to the extent that 

she was ready to return to a modified job. Dr. Sookdeo recommended that she undergo a nerve 

conduction velocity study of the left upper extremity in light of her left hand numbness and 

tingling. She also prescribed continued physical rehabilitation and imposed work restrictions 

with respect to lifting, pushing, and pulling. 
3

In a February 18, 2015 report, received by OWCP on May 20, 2015, Dr. Sookdeo 

essentially reiterated her previous findings and conclusions. 

In an April 22, 2015 report, received by OWCP on May 20, 2015, Dr. Sookdeo advised 

that appellant was undergoing chiropractic treatment and physical rehabilitation for her left 

elbow once a week. She reported having better range of motion with diminished pain. In all 

other respects, Dr. Sookdeo essentially reiterated her previous findings and conclusions. 

Appellant also submitted several duty status (Form CA-17) reports from Dr. Sookdeo, 

who advised that appellant was experiencing left elbow pain and diagnosed left elbow strain. 

Additionally, Dr. Sookdeo checked a box marked “yes” on the CA-17s indicating that appellant’s 

account of the January 6, 2015 work incident was consistent with how the injury occurred. 

On February 18, 2016 appellant, through counsel, requested reconsideration. 

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

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

sufficient to require further merit review. 

LEGAL PRECEDENT 

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

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 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.5 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.6

 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.7

 3

 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 own motion or on application.” 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 

5 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 OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, 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. 

6 Id. at § 10.606(b)(3). 

7 Id. at § 10.608(a), (b). 
4

ANALYSIS 

OWCP denied appellant’s January 6, 2015 traumatic injury claim because she failed to 

provide detailed information of how she had injured her left upper extremity in the performance 

of duty. The Form CA-1 merely noted “Tray FSS” as the cause of injury. OWCP afforded 

appellant the opportunity to supplement the record, but she did not respond to the January 16, 

2015 questionnaire regarding the circumstances of her alleged injury. Consequently, it denied 

the claim on February 25, 2015 because of appellant’s failure to establish the factual component 

of fact of injury.8 Counsel timely requested reconsideration on February 18, 2016. However, he 

neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point 

of law. Additionally, counsel did not advance any relevant legal arguments not previously 

considered by OWCP. Thus, the Board finds that appellant is not entitled to a review of the 

merits based on the first and second requirements under section 10.606(b)(3).9

Counsel also failed to submit any relevant and pertinent new evidence with the 

February 18, 2016 request for reconsideration. As noted, the issue on reconsideration was 

whether appellant established the factual component of fact of injury. Appellant had not 

previously explained what she was doing with an FSS tray when she allegedly injured her left 

upper extremity on January 6, 2015. OWCP received additional medical evidence since it 

initially denied appellant’s claim on February 25, 2016. However, neither appellant nor counsel 

submitted a statement from appellant or any witnesses regarding the circumstance of the alleged 

January 6, 2015 employment incident. 

The Board has held that the submission of evidence that does not address the particular 

issue in the case does not constitute a basis for reopening the claim.10 Although the recently 

submitted medical evidence indicates that appellant injured her left elbow lifting a tub of mail, to 

date appellant has failed to provide a factual history of injury. Because appellant did not provide 

any “relevant and pertinent new evidence,” she is not entitled to a review of the merits based on 

the third requirement under section 10.606(b)(3).11 Accordingly, OWCP properly denied 

appellant’s request for reconsideration under 5 U.S.C. § 8128(a). 

CONCLUSION 

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

under 5 U.S.C. § 8128(a). 

 8

 To determine if an employee sustained a traumatic injury in the performance of duty, OWCP begins with an 

analysis of whether “fact of injury” has been established. Generally, fact of injury consists of two components that 

must be considered in conjunction with one another. The first component is whether the employee actually 

experienced the employment incident that allegedly occurred. The second component is whether the employment 

incident caused a personal injury. Elaine Pendleton, 40 ECAB 1143 (1989). 

9

 20 C.F.R. § 10.606(b)(3)(i) and (ii). 

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

11 20 C.F.R. § 10.606(b)(3)(iii). 
5

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: January 18, 2017 

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