United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Stone Mountain, GA, Employer

__________________________________________

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Docket No. 18-1226

Issued: December 28, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 31, 2018 appellant, through counsel, filed a timely appeal from a January 23, 2018 

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

days has elapsed since the last merit decisions dated November 17, 2017, 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 to review the merits of the 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 pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On April 8, 2015 appellant, then a 35-year-old city carrier assistant, filed a traumatic injury 

claim (Form CA-1) alleging that while in the performance of duty on April 1, 2015 she injured her 

right lower back in a motor vehicle accident.3 She stopped work on that day. OWCP accepted the 

claim for neck sprain, lumbar sprain, bilateral knee contusions, disorders of the bursae and tendons 

of the right shoulder, and derangement of the lateral meniscus of the right knee. It paid appellant 

wage-loss compensation for total disability from May 18, 2015 to June 25, 2016 and for 

intermittent periods of disability until March 30, 2017, when it again paid her wage-loss 

compensation for total disability. 

By decision dated November 17, 2017, OWCP terminated appellant’s wage-loss 

compensation and authorization for medical benefits effective November 18, 2017 as she had no 

further disability or need for medical treatment due to her April 1, 2015 employment injury. It 

found that the opinion of Dr. Raju Vanapalli, an orthopedic surgeon and OWCP’s referral 

physician, constituted the weight of the evidence and established that the accepted conditions had 

resolved. OWCP noted that the reports from appellant’s attending physician, Dr. Jay B. Bender, 

a Board-certified physiatrist, were repetitive and lacked medical rationale.

By separate decision dated November 17, 2017, OWCP suspended appellant’s wage-loss 

compensation effective December 10, 2017, as she had not submitted an affidavit of earnings and 

employment on a Form CA-1032 as requested.4 

Subsequent to OWCP’s decisions, appellant submitted physical therapy reports dated 

March and April 2017 and November 21, 2017. She also submitted a September 26, 2017 report 

from Dr. Bender. In that report Dr. Bender diagnosed right shoulder bursitis, cervical sprain, 

lumbar sprain, and a lumbar herniated nucleus. He noted that appellant had sustained an injury to 

her neck, right shoulder, right lower extremity, and back in an employment-related motor vehicle 

accident. Dr. Bender opined that she was totally disabled pending re-evaluation.

Appellant, on January 2, 2018, requested reconsideration. 

By decision dated January 23, 2018, OWCP denied appellant’s request for reconsideration 

as she had not raised an argument or submitted evidence sufficient to warrant reopening her case 

 

3 By decision dated July 15, 2015, OWCP denied appellant’s request for authorization for various medical supplies. 

By decision dated October 27, 2016, it denied her request for wage-loss compensation for lost time from work on 

June 30 and July 15, 2016, and by decision dated February 27, 2017, it denied her request for four hours of wage-loss 

compensation on December 2, 2016.

4 On November 29, 2017 OWCP received appellant’s completed CA-1032 form. 
3

for further merit review under section 8128(a). It found that Dr. Bender’s report was substantially 

similar to those previously submitted and considered.5

LEGAL PRECEDENT

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

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.6

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.7

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.10

ANALYSIS

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).

By decision dated November 17, 2017, OWCP terminated appellant’s wage-loss 

compensation and authorization for medical benefits. On January 2, 2018 appellant requested 

 

5

In reports received by OWCP in July and August 2017, Dr. Bender listed the accepted conditions as cervical and 

lumbar sprain, contusions of the right and left knee, and right shoulder bursitis. He also diagnosed additional 

conditions as due to the work injury. Dr. Bender opined that appellant was unable to work.

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.606(b)(3); see also S.S., Docket No. 18-0647 (issued October 15, 2018).

8

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.

9

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

10 Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).
4

reconsideration. Appellant’s request was timely filed as it was received within one year of 

OWCP’s last merit decision.11

The issue is whether appellant submitted evidence or raised an argument in support of her 

request for reconsideration sufficient to warrant further merit review pursuant to 20 C.F.R.

§ 10.606(b)(3). The Board finds that she did not show that OWCP erroneously applied or 

interpreted a specific point of law or raise a relevant legal argument not previously considered. 

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).12

The Board further finds that appellant did not submit relevant or pertinent new evidence 

not previously considered. She submitted physical therapy reports dated March, April, and 

November 2017. The underlying issue, however, is whether appellant has further disability 

causally related to her accepted April 1, 2015 employment injury. The physical therapy notes do 

not address the question of disability and thus are not pertinent to the issue at hand.13 Evidence or 

argument that does not address the particular issue involved does not warrant reopening a case for 

further merit review.14

On September 26, 2017 Dr. Bender reexamined her and diagnosed right shoulder bursitis, 

cervical sprain, lumbar sprain, and a lumbar herniated nucleus. He attributed the conditions to 

appellant’s work injury and indicated that she was currently disabled from employment until 

further evaluation. Dr. Bender’s report, however, was substantially similar to his prior reports 

previously of record, and thus does not constitute relevant and pertinent new evidence.15 

Appellant, consequently, is not entitled to a review of the merits of her claim based on the third 

requirement under section 10.606(b)(3).16

The Board, accordingly, finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.17

 

11 See supra note 8.

12 20 C.F.R. § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

13 See R.B., Docket No. 16-0168 (issued February 8, 2016).

14 See T.Q., Docket No. 18-0641 (issued October 5, 2018).

15 See V.P., Docket No. 18-0440 (issued August 24, 2018) (newly submitted evidence which is repetitive or 

duplicative of evidence existing in the record is insufficient to warrant further merit review).

16 20 C.F.R. § 10.606(b)(3)(iii); see also A.F., Docket No. 18-0295 (issued July 18, 2018). 

17 See R.C., Docket No. 17-1314 (issued November 3, 2017) (when an application for reconsideration does not meet 

at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits).
5

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).

ORDER

IT IS HEREBY ORDERED THAT the January 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 28, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board