United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.A., Appellant

and

U.S. POSTAL SERVICE, GARDINA MAIN 

POST OFFICE, Gardina, CA, Employer

__________________________________________

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Docket No. 18-0897

Issued: December 3, 2018

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 March 22, 2018 appellant filed a timely appeal from a January 11, 2018 nonmerit 

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

elapsed from the last merit decision dated March 23, 2017 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 this case.2

ISSUE

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

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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 11, 2018 nonmerit 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.
2

FACTUAL HISTORY

On October 10, 2007 appellant, then a 60-year-old mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that on August 22, 2007 he first became aware of the 

connection between his right shoulder and back conditions and his employment duties as a mail 

carrier.3 OWCP accepted the claim for right bicipital tenosynovitis, lumbosacral sprain, temporary 

aggravation of right thumb generalized osteoarthritis, and temporary aggravation of right shoulder 

acromioclavicular arthrosis. Subsequently, it expanded the acceptance of appellant’s claim to 

include right shoulder impingement syndrome.4 OWCP authorized right shoulder arthroscopy, 

which was performed on November 21, 2011. 

A magnetic resonance imaging (MRI) scan of the lumbar spine dated May 25, 2012 was 

interpreted by Dr. Jerome Gold, a Board-certified radiologist, as revealing no evidence of disc 

herniation and bilateral S2 nerve root cysts of questionable significance. 

In reports dated July 31 and December 28, 2015, Dr. James T. Tran, a treating Boardcertified neurosurgeon, noted that appellant had retired in 2009. He reviewed appellant’s history 

of injury, noted diagnostic test findings, and provided examination findings. Dr. Tran diagnosed

lumbar spinal stenosis with neurogenic claudication, lumbar disc degeneration, and lumbar disc 

displacement with myelopathy, which he attributed to appellant’s 24 years of work as a city letter 

carrier. He related that appellant had to lift and carry 25 to 35 pounds of mail and magazine 

containers on a frequent basis. Dr. Tran further explained that twisting and turning of the low back 

while lifting tubs of mail, and extension of the lumbar spine while loading mail tubs on a conveyor 

belt, exerted force on the lumbar spine, which caused tears in the annulus fibrosus of the lumbar 

disc, which allowed protusion or extrusion of the nuclear pulposus in the spinal canal, and 

compressed lumbar nerve roots resulting in back and leg pain. He further explained that extension 

of the low back while bending down to pick up tubs of mail and pushing hampers of mail caused

lumbar facet joints to disengage and separate. Disengagement of facet joints stretched the 

ligamentum flavum which caused spinal stenosis and compression of lumbar nerve roots. 

In a letter dated January 18, 2017, Dr. Christopher P. DeCarlo, a treating physiatrist, 

requested that OWCP expand the acceptance of appellant’s claim to include lumbar disc 

degeneration and lumbar disc displacement with myelopathy. He reported that appellant’s

November 6, 2015 and December 7, 2016 MRI scans showed L4-5 spinal stenosis, L4-5 grade 1 

anterolisthesis, and L4-5 and L5-S1 facet osteoarthritis. Dr. DeCarlo described appellant’s work 

duties and opined that the lumbar disc degeneration and lumbar disc displacement with myelopathy 

were due to appellant’s 24 years of work as a city letter carrier. 

By decision dated March 23, 2017, OWCP denied appellant’s request to expand the 

acceptance of his claim to include lumbar disc degeneration and lumbar disc displacement with 

myelopathy. It noted that appellant worked modified duties from August 22, 2007 until retiring in 

2009 and the physician failed to explain how the additional conditions were due to his mail carrier 

 

3

In statements submitted to OWCP appellant noted that he had worked as a mail carrier for 21 years until a May 3, 

2007 work injury when he was placed on limited duty. 

4 Appellant retired from the employing establishment in 2009.
3

duties when he had not worked as a mail carrier since 2007 and the conditions were not present on 

earlier MRI scans.

Following the March 23, 2017 decision, additional medical evidence was received.

A December 7, 2016 MRI scan of appellant’s lumbar spine revealed an S2 spinal canal 

lesion, L4-5 spinal stenosis without definite compression of the L5 nerve roots, L4-5 grade 1 

anterolisthesis, and L4-5 and L5-S1 facet osteoarthritis. 

Dr. DeCarlo, in progress reports dated March 10, April 11, and October 3, 2017, diagnosed

occupational right major bicipital tendinitis, lumbosacral strain, right thumb arthrosis, lumbar 

spinal stenosis with neurogenic claudication, lumbar disc degeneration, lumbar disc displacement 

with myelopathy, and status post right rotator cuff tear repair. 

In reports dated March 8, April 5, May 3 and 31, July 12, and August 24, 2017,

Dr. James A. Kim, a treating Board-certified anesthesiologist and pain medicine physician, based 

on review of diagnostic testing and physical examination, diagnosed lumbar disc degeneration, 

lumbar disc displacement, nonspecific lumbar pain, lumbar radiculopathy, and lumbar spinal 

stenosis. He noted that appellant was currently retired from the employing establishment where 

he had worked for 24 years. Dr. Kim noted lumbar sprain had been accepted as work related. He 

noted that, based on radicular symptoms and MRI scan findings of disc displacement, the 

conditions of spinal stenosis and radiculopathy should be accepted.

Dr. Tran, in a June 23, 2017 follow-up report, noted that appellant was seen for back pain 

and detailed examination findings. He noted that the accepted condition was lumbosacral sprain, 

however, appellant had additional diagnoses of lumbar spinal stenosis with neurogenic 

claudication, lumbar disc degeneration, and lumbar disc displacement with myelopathy. Dr. Tran

attributed the additional conditions to appellant’s 22 years of work as a mail carrier and reiterated 

the supporting rationale he had provided in his prior reports. 

On October 17, 2017 appellant requested reconsideration. He subsequently submitted 

reports dated October 5 and November 16, 2017 from Dr. Kim reiterating findings and diagnoses 

from prior reports. 

By decision dated January 11, 2018, OWCP denied appellant’s request for reconsideration. 

It found that the evidence submitted by appellant was either irrelevant and immaterial, or 

cumulative and substantially similar to evidence previously of record. 

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 compensation at any time on his own motion or on application.5

 

5 5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 

(issued February 23, 2010); W.C., 59 ECAB 372 (2008).
4

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.6

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

OWCP’s decision for which review is sought.7 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.8

ANALYSIS

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

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

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, nor did he advance a relevant legal argument not previously considered by OWCP.9 As such, 

he was not entitled to a review of the merits of his claim based on the first and second above-noted 

requirements under section 10.606(b)(3).10

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

in support of his reconsideration request. 

Appellant submitted reports from Dr. DeCarlo, Dr. Kim, and a December 7, 2016 MRI 

scan in support of his reconsideration request. Dr. DeCarlo diagnosed occupational right major 

bicipital tendinitis, lumbosacral strain, right thumb arthrosis, lumbar spinal stenosis with 

neurogenic claudication, lumbar disc degeneration, lumbar disc displacement with myelopathy, 

and status post right rotator cuff tear repair. Dr. Kim continued to opine that spinal stenosis and 

radiculopathy should be accepted conditions. The MRI scan reported an S2 spinal canal lesion, 

L4-5 spinal stenosis without definite compression of the L5 nerve roots, L4-5 grade 1 

anterolisthesis, L4-5 and L5-S1 facet osteoarthritis. However, none of these reports offered an 

opinion as to the cause of the diagnosed conditions. The Board has held that the submission of 

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

 

6 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 1, 2010).

9 See J.F., Docket No. 16-1233 (issued November 23, 2016).

10 20 C.F.R. § 10.606(b)(3).
5

reopening a case.11 Thus, this evidence does not constitute a basis for reopening appellant’s claim 

for a merit review.

Dr. Tran’s June 23, 2017 report, while new, reiterated that appellant’s additional diagnoses 

of lumbar spinal stenosis with neurogenic claudication, lumbar disc degeneration, and lumbar disc 

displacement with myelopathy were due to appellant’s 22 years of work as a mail carrier. While 

he had previously incorrectly related that appellant worked as a mail carrier for 24 years, his new 

report merely reiterated his generalized conclusions regarding the development of appellant’s 

lumbar conditions. Dr. Tran’s opinion regarding causal relationship repeated and duplicated

evidence previously of record and does not constitute a basis for reopening a case.12

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

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence not previously considered. 

On appeal appellant argues that the evidence of record supports his contention that the 

acceptance of his claim should be expanded to include additional conditions. As noted above, the 

Board lacks jurisdiction to review the merits of the claim. As none of the evidence submitted 

constitutes a basis for reopening his claim for a merit review, OWCP properly denied appellant’s 

reconsideration request.

CONCLUSION

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

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

 

11 S.O., Docket No. 15-1412 (issued December 8, 2015); D’Wayne Avila, 57 ECAB 642 (2006).

12 E.R., Docket No. 17-0540 (issued July 26, 2017); D.K., 59 ECAB 141 (2007).
6

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated January 11, 2018 is affirmed.

Issued: December 3, 2018

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