United States Department of Labor

Employees’ Compensation Appeals Board

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P.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

CHILLICOTHE VETERANS AFFAIRS 

MEDICAL CENTER, Chillicothe, OH, Employer

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Docket No. 18-1636

Issued: April 2, 2019

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 August 29, 2018 appellant, through counsel, filed a timely appeal from a June 29, 2018 

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

days has elapsed from OWCP’s last merit decision, dated May 3, 2017, to the filing of this appeal,

 

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

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 this case.

3

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 August 28, 2015 appellant, then a 47-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her back on that day when placing a sling under a 

patient while in the performance of duty. She stopped work on that same day and returned to 

restricted duty on September 4, 2015. On March 29, 2016 OWCP accepted the claim for other 

cervical disc displacement, unspecified cervical region, unspecified sprain of left shoulder joint,

strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, left arm; and strain 

of muscle and tendon of back wall of thorax. 

In a report dated February 29, 2016, Dr. Jeffrey C. Hill, Board-certified in preventative 

medicine, noted that appellant had seen Dr. Andrew Porter, an osteopathic physician, who advised 

that appellant’s level of disability secondary to pain seemed highly consistent with a disc 

herniation at C3-4. He indicated that appellant reported that her modified duties were more 

problematic because she could barely keep her head and neck in a supported position secondary to 

significant pain and perceived loss of strength. Dr. Hill described tenderness to palpation in the 

thoracic and cervical regions with decreased left shoulder and cervical spine range of motion. He 

indicated that appellant could not work, effective that day, because her pain was increasing and, 

due to work issues, she could not take the medication prescribed. Appellant stopped work that 

day.

On March 8, 2016 Dr. Hill provided a diagnosis of disc protrusion at C3-4 and opined that 

it was related to appellant’s claim. He also noted that a pain management provider opined that 

appellant’s cervical, thoracic, and shoulder issues were directly related to the disc pathology. 

Dr. Hill continued to advise that appellant could not work. 

On April 15, 2016 appellant filed a claim for compensation (Form CA-7) for the period 

April 4 to 15, 2016.

By development letter dated May 23, 2016, OWCP informed appellant of the evidence 

needed to support her disability claim. It noted that the evidence of record did not contain a 

physician’s well-rationalized opinion, based on examination findings and diagnostic tests/

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the June 29, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
3

procedures, explaining why she was totally disabled from work in any capacity, including a 

sedentary, restricted-duty position. OWCP afforded appellant 30 days to submit additional 

evidence. 

Appellant continued to submit claims for compensation (Form CA-7) for continuing dates 

of disability. 

In a letter dated June 2, 2016, Dr. Hill explained that appellant reported that her pain 

increased at work, even though she was assigned light duty, and that her medications were making 

her “loopy.” He noted that she had seen pain management physicians and neurosurgeons who 

recommended conservative treatment including steroid injections. Dr. Hill recommended that, 

because appellant had loss of range of motion of the cervical spine and left shoulder and because 

her medications were having a deleterious impact on her cognitive functioning, she should remain

off work until the efficacy of the steroid injections could be assessed. On June 15, 2016 he reported 

that she was incapable of working due to pain and the need for controlled substances for pain 

modulation.

By decision dated July 1, 2016, OWCP denied appellant’s claim for ongoing total disability 

for the period commencing February 29, 2016. It noted that appellant had filed CA-7 forms 

alleging disability beginning April 4, 2016, but that she had ceased work on February 29, 2016. 

OWCP found the evidence submitted was insufficient to establish that appellant was totally 

disabled from performing the duties of her limited-duty position.

Appellant, through her then representative,4requested reconsideration on August 3, 2016.

Evidence received subsequent to OWCP’s July 1, 2016 decision included a June 20, 2016 

report indicating that Dr. Porter performed a cervical epidural steroid injection that day. In reports 

dated July 11, 2016, Dr. Hill indicated that the injections had not helped to reduce appellant’s pain 

or improve her functional status. He requested a repeat consultation with a neurosurgeon. On 

July 25, 2016 Dr. Hill indicated that he could offer some modified-duty options for appellant. He 

indicated that she could return to part-time modified work.

Appellant accepted a modified-duty position for four hours a day on August 8, 2016. 

Dr. Hill requested additional modification, but advised that she continue part-time modified duty. 

On a December 19, 2016 form report Dr. Christian L. Bonasso, a Board-certified 

neurosurgeon, advised that appellant could return to work on January 2, 2017 with a 10-pound 

weight limit, for four hours daily for two weeks, then six hours daily for two weeks, then eight 

hours per day.

On December 22, 2016 Dr. Hill reported that appellant underwent cervical spinal surgery 

on November 22, 2016.5 He advised that she could return to restricted duty on January 2, 2017. 

Appellant accepted a modified-duty position on January 3, 2017, within the restrictions provided 

 

4 At that time appellant was represented by union personnel.

5 The record contains no information regarding this surgical procedure, including pre- and post-operative care. The 

employing establishment noted that she was off work until January 2, 2017. 
4

by Dr. Hill. On January 19, 2017 Dr. Hill noted that appellant reported that her cervical spine 

condition had improved since surgery, but that her left shoulder condition had worsened. He 

advised that she could increase her hours performing the modified position to six hours daily. 

Appellant began six hours of modified duty on January 27, 2017.

A January 27, 2017 MRI scan of the left shoulder demonstrated no rotator cuff, biceps, or 

labral tear.

On February 16, 2017 Dr. Hill noted that appellant continued to have profound loss of 

range of motion of the left shoulder which was “related to work activities.” He advised that she 

could resume full-time modified duty. Appellant began full-time modified duty on 

February 22, 2017.

In a February 27, 2017 report, Dr. Raul Raudales, Board-certified in family and sports 

medicine, noted seeing appellant regarding her left shoulder. He described physical examination 

findings and recommended medication, massage therapy, trigger pointing, and left shoulder 

injections. 

On March 27 and April 21, 2017 Dr. Hill reiterated his findings and conclusions. 

By decision dated May 3, 2017, OWCP denied modification of its prior decision. It found 

the medical evidence of record insufficient to establish that appellant was unable to continue her 

light-duty position commencing February 29, 2016.

On April 13, 2018 appellant, through counsel, requested reconsideration. 

Evidence submitted subsequent to the May 3, 2017 OWCP decision included reports dated 

May 24, 2017 to May 10, 2018 in which Dr. Hill described appellant’s current medical 

management. Dr. Hill advised that her restrictions were permanent and that she could work fulltime restricted duty. 

OWCP also received a report wherein Dr. Raudales related that he had performed a left 

shoulder injection on June 19, 2017. 

A March 29, 2018 MRI scan of the cervical spine demonstrated surgical changes at C3-4 

and degenerative changes at C5-6 with new, moderate right neural foraminal narrowing at C5-6. 

Appellant continued to work full-time modified duty within the restrictions provided by

Dr. Hill.

By decision dated June 29, 2018, OWCP denied further merit review of appellant’s claim. 

It found the evidence submitted subsequent to its merit decision dated May 3, 2017 was 

insufficient to warrant merit review as the reports submitted were cumulative in nature and merely 

provided updates on appellant’s current condition and were also irrelevant because none of the 

reports discussed work capacity during appellant’s work stoppage beginning February 29, 2016. 
5

LEGAL PRECEDENT

Under section 8128(a) of FECA,6 OWCP has the discretion to reopen a case for review on 

the merits. It must exercise this discretion 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 of his or her written application for reconsideration, including all supporting 

documents, sets forth arguments and contain evidence which either: (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

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.8

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or arguments already in the case record, and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.9

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).

With her timely request for reconsideration, 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. Consequently, appellant is not entitled to review 

of the merits of her claim on the first and second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3). 

Additionally, appellant has not submitted relevant and pertinent new evidence not 

previously considered by OWCP. The underlying issue in this case is whether she has submitted 

sufficient evidence to establish total disability for the period commencing February 29, 2016 until 

her return to full-time work on February 22, 2017. Because the underlying issue in this case is 

medical in nature, it must be addressed by relevant medical evidence. 

In support of the April 13, 2018 reconsideration request, OWCP received reports from

Dr. Hill dated from May 24, 2017 to May 10, 2018. These reports did not discuss appellant’s work 

capacity during the period of disability claimed. Likewise, Dr. Raudales merely described a 

 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(b).

9

J.V., Docket No. 18-1534 (issued February 25, 2019).
6

June 19, 2017 left shoulder injection procedure, and the March 29, 2018 MRI scan of the cervical 

spine described the study’s findings. The Board has held that the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.10 Thus, appellant is also not entitled to a review of the merits of her claim based 

on the third above-noted requirement under section 10.606(b)(3).

The Board accordingly finds that appellant has not met 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.

On appeal counsel contends that the June 29, 2018 OWCP decision is contrary to fact and 

law. As stated above, the evidence appellant submitted on reconsideration has not met the 

requirements to reopen her case for a review of the merits of the claim. 

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 June 29, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 2, 2019

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

 

10 See K.B., Docket No. 18-1392 (issued January 15, 2019).