United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Windsor, CT, Employer

__________________________________________

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Docket No. 18-0054

Issued: March 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:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 9, 2017 appellant, through counsel, filed a timely appeal from a September 19, 

2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from OWCP’s last merit decision, dated August 1, 2016, 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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On February 25, 2015 appellant, then a 55-year-old legal administrative assistant, filed a 

traumatic injury claim (Form CA-1) alleging a back injury on February 13, 2015 due to lifting a 

bag of shredded paper while at an employing establishment worksite in New York City. She

stopped work on February 13, 2015.3

Appellant received treatment for her medical condition from Dr. Luis A. Dias, Jr., an 

attending Board-certified internist. In reports dated February 19 and March 10, 2015, Dr. Dias 

found appellant to be disabled from work between mid-February and early-March 2015 due to the 

February 13, 2015 accident at work.

In a March 23, 2015 development letter, OWCP requested that appellant submit additional 

factual and medical evidence in support of her claim.

Appellant submitted an April 7, 2015 report in which Dr. Dias discussed an April 2, 2015 

magnetic resonance imaging (MRI) scan which showed disc herniation at L4-5. Dr. Dias indicated 

that appellant would be seen by a specialist for the “on-the-job injury to her back.” He continued 

to find that appellant was disabled from work.

In an April 23, 2015 decision, OWCP denied appellant’s claim for a work-related 

February 13, 2015 injury. It found that appellant had not established the occurrence of an 

employment incident as alleged because she had failed to submit additional factual information 

regarding the incident. OWCP also found that she failed to submit medical evidence relating a 

diagnosed condition to a specific incident/event at work.

On June 2, 2015 appellant, by undated letter and the submission of an appeal request form,

requested reconsideration of OWCP’s April 23, 2015 decision. Appellant further discussed the 

claimed February 13, 2015 employment incident, indicating that she felt a sharp pain in her lower 

back, which radiated down into her right leg, after lifting a 10 -to 15-pound bag of shredded paper 

out of a bin on that date.

In several narrative reports dated between March and May 2015, Dr. Dias briefly detailed 

the circumstances of the February 13, 2015 lifting incident and discussed the findings of his 

physical examinations of appellant. In his March 2015 reports, he diagnosed lumbar sprain and 

sciatica, but after receiving the April 2, 2015 MRI scan he also diagnosed herniated disc at L4-5 

and intervertebral lumbar disc disorder with myelopathy. Dr. Dias continued to find disability 

from work.

 

3 Appellant received continuation of pay through late-March 2015 and filed claims for compensation (Form CA-7) 

alleging disability for the period March 31 to April 17, 2015.
3

In a May 13, 2015 report, Dr. David M. Shein, an attending Board-certified orthopedic 

surgeon, indicated that appellant presented complaining of severe low back pain that started on 

February 13, 2015 when she was picking up a heavy bin from a shredding machine. Appellant 

reported that, as she stood up from the flexed position, she felt sudden searing pain in her low back 

with shooting, sharp pain radiating down her right lower extremity. Dr. Shein detailed the findings 

of his May 13, 2015 physical examination of appellant, noting that the sciatic stretch test was 

negative. He indicated that the MRI scan brought to him by appellant showed two desiccated discs 

at L4-5 and L5-S and an annular tear at L5-S1, and he found that appellant was 100 percent 

disabled from work.

In an August 3, 2015 decision, OWCP modified its April 23, 2015 decision to reflect that 

appellant had established the occurrence of an employment incident on February 13, 2015 in the 

form of lifting a bag of shredded paper. However, it also found that appellant failed to submit 

medical evidence sufficient to establish causal relationship between a diagnosed medical condition 

and the accepted February 13, 2015 employment incident, and thus it denied her claim for a 

February 13, 2015 work injury on this basis.

On November 2, 2015 appellant requested reconsideration of OWCP’s August 3, 2015 

decision through submission of an appeal request form.

In an October 5, 2015 report, Dr. Shein noted that appellant presented with the 

“preposterous situation in which she asks me to provide definite assessment of her development 

of backache from a work-related injury.” He asserted that it was clear-cut from his May 13, 2015 

report that eight months prior appellant was picking up a heavy bin after shredding, felt sudden 

wrenching pain in her lower back, and ruptured a disc in her lower back. Dr. Shein noted that this 

was a straightforward, uncomplicated problem which was causally related to her work. He

reported the physical examination findings he obtained on October 5, 2015, noting that the motor 

examination was fully intact and that the sciatic stretch test was strongly positive. Dr. Shein

diagnosed “lumbar dis[c] prolapse, work-related injury” and indicated that, if epidural injections 

in the low back do not help, he would recommend surgery at L5-S1.

In a January 28, 2016 decision, OWCP denied modification of its August 3, 2015 decision. 

It found that the submitted medical evidence, including Dr. Shein’s October 5, 2015 report, did 

not contain medical rationale explaining the relationship of appellant’s medical condition to the 

accepted February 13, 2015 employment incident.

On May 3, 2016 appellant requested reconsideration of OWCP’s August 3, 2015 decision.

In a March 9, 2016 report, Dr. Shein indicated that he originally reported that appellant had 

been picking up a heavy bin, but he explained that she felt pain while removing a heavy bag with 

shredded paper from a bin and suffered a disc prolapse in her lumbar spine. He indicated, “This 

has been clearly identified both clinically as well as radiologically, evidenced on MRI scan by an 

L4-5 posterior disc herniation with midline radial annular tearing and thecal sac compression with 

peripheral components being encroached on by the disc material into the foramen.” Dr. Shein 

reported the findings of his physical examination on March 9, 2016 and found that appellant was 

100 percent disabled. He recommended that appellant undergo low back surgery in two or three 

months.
4

In an August 1, 2016 decision, OWCP denied modification of its January 28, 2016

decision. It found that the medical evidence submitted, including Dr. Shein’s March 9, 2016 

report, did not contain adequate medical rationale on causal relationship sufficient to establish 

appellant’s claim for a work-related February 13, 2015 injury.

On June 21, 2017, appellant, through counsel, requested reconsideration of OWCP’s 

August 1, 2016 decision. He argued that January 16, February 20, March 21, and May 23, 2017 

reports he was submitting in connection with the reconsideration request established that, due to 

the February 13, 2015 employment incident, appellant sustained post-traumatic disc degeneration 

and rupture at L4-5 with associated facet joint misalignment and neural entrapment causing 

radiculopathy.

In the history portion of a February 20, 2017 report, Dr. Shein reported that appellant’s 

status was two years of ongoing persistent lower backache and radiculopathy. He expressed his 

amazement and surprise that a colleague who evaluated appellant was paying attention to a 7.5-

pound bag.4 Dr. Shein noted, “Apparently this was weighed but this was one bag and was not the 

complete picture according to [appellant]. That bag was 7.5 pounds weighed, placed in a bin, and 

then paper was added to it thus increasing the weight, but whether this be 5 or 7 or 10 pounds more 

is irrelevant.” He indicated that his colleague should know that leverage, even picking up a piece 

of paper off the floor, can rupture a disc and noted that “this is what has happened to her.”

Dr. Shein expressed his opinion that appellant remained problematic with her ongoing lower 

backache and pain in the right buttock and posterior thigh, calf, and foot. He noted that appellant 

had a work-related post-traumatic disc rupture at L4-5 associated facet joint malalignment and 

neural entrapment causing radiculopathy. Dr. Shein found that appellant was 100 percent disabled 

and unfit for work and indicated, “This is causally related to a workers’ comp[ensation] related 

problem.” He reported the findings of his February 20, 2017 physical examination noting that 

appellant remained symptomatic with a positive straight leg raise of about 70 to 80 degrees and a 

strongly positive sciatic stretch test. Dr. Shein indicated that, despite having days when she was 

relatively free of discomfort, her pain was more likely to flare up when she was more active. He

noted, “This is what has kept her out of work.” Dr. Shein recommended that she receive a second 

opinion regarding the possible need for a lumbar stabilization procedure with reconstitution of disc 

height, but noted that appellant’s current symptoms did not warrant such surgery. He expressed 

his hope that reactive bone formation would stabilize appellant’s facet joints/capsules and he found 

that she was 100 percent disabled.

In January 16, March 21, and May 23, 2017 reports, Martha Castro, a physician assistant,

detailed appellant’s factual/medical history and discussed the physical examinations of appellant 

on those respective dates. She provided diagnoses such as post-traumatic disc degeneration at L4-

5 and acute chronic lumbar radiculopathy, and noted that appellant was 100 percent disabled and 

unfit for work.5

 

4 Dr. Shein did not identify the colleague to which he referred.

5 On these reports Ms. Castro provided the notation, “Dictating for Dr. David Shein,” but these reports were not 

signed by Dr. Shein or otherwise adopted by him.
5

Appellant submitted an undated letter which she originally submitted on June 2, 2015 to 

effectuate a request for reconsideration of OWCP’s April 23, 2015 decision.

In a September 19, 2017 decision, OWCP denied appellant’s request for reconsideration of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence appellant 

submitted in support of her timely reconsideration request was duplicative or irrelevant/ immaterial 

to the underlying issue of her case.

LEGAL PRECEDENT

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

to review an award for or against compensation. OWCP may review an award for or against 

payment of compensation at any time based on its own motion or on application.6 

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence that: (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 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.8 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.9

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.10 For OWCP decisions issued on or after 

August 29, 2011, the date of the application for reconsideration is the “received date” as recorded 

in the Integrated Federal Employees’ Compensation System (iFECS).11 If the last day of the oneyear time period is a Saturday, Sunday, or a legal holiday, OWCP will still consider a request to 

be timely filed if it is received on the next business day.12

 

6 5 U.S.C. § 8128(a).

7 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).

8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

10 20 C.F.R. § 10.607(a).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See 

also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987, there is no 

regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987 

through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and 

must be mailed within one year of OWCP’s decision for which review is sought.

12 Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).
6

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

evidence or argument already in the case record,

13 and the submission of evidence or argument which 

does not address the particular issue involved, does not constitute a basis for reopening a case.14

ANALYSIS

OWCP issued a decision on August 1, 2016 and it received appellant’s request for 

reconsideration on June 21, 2017. Appellant’s request was timely filed because it was received 

within one year of OWCP’s August 1, 2016 decision.15

The issue presented on appeal is whether appellant’s June 21, 2017 request for 

reconsideration met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to 

reopen the case for further review of the merits of the claim. 

The Board finds that appellant’s request for reconsideration did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a new and relevant legal 

argument not previously considered by OWCP.

The underlying issue in this case is whether appellant submitted medical evidence 

sufficient to establish an injury due to the February 13, 2015 employment incident,

16 and this is a 

medical issue which must be addressed by relevant medical evidence.17 A claimant may be entitled 

to a merit review by submitting relevant and pertinent new evidence, but the Board finds that 

appellant did not submit such evidence in this case. 

Appellant submitted a February 20, 2017 report in which Dr. Shein expressed his 

amazement and surprise that a colleague who evaluated appellant was paying attention to a 7.5-

pound bag. Dr. Shein noted, “Apparently this was weighed, but this was one bag and was not the 

complete picture according to [appellant]. That bag was 7.5 pounds weighed, placed in a bin, and 

then paper was added to it thus increasing the weight but whether this be 5 or 7 or 10 pounds more 

is irrelevant.” Dr. Shein indicated that his colleague should know that leverage, even picking up 

a piece of paper off the floor, can rupture a disc and noted that “this is what has happened to her.” 

He noted that appellant had a work-related post-traumatic disc rupture at L4-5 associated facet 

joint malalignment and neural entrapment causing radiculopathy. Dr. Shein found that appellant 

was 100 percent disabled and unfit for work and indicated, “This is causally related to a workers’

comp[ensation][-]related problem.”

The Board finds that submission of Dr. Shein’s February 20, 2017 report would not require 

OWCP to reopen appellant’s case for further review of the merits of the claim because the report 

 

 13 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

 

14 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

 

15 See supra notes 11 through 13.

16 OWCP accepted that appellant lifted a bag of shredded paper on February 13, 2015.

 

17 See Bobbie F. Cowart, 55 ECAB 746 (2004).
7

is similar to earlier reports of Dr. Shein, which appellant submitted and OWCP deemed of limited 

probative value with respect to the question of whether appellant sustained an injury due to the 

February 13, 2015 employment incident. As noted above, the Board has held that the submission 

of evidence or argument which repeats or duplicates evidence or argument already in the case record 

does not constitute a basis for reopening a case.18 For example, Dr. Shein’s February 20, 2017 

report is similar to his October 5, 2015 and March 9, 2016 reports, which had previously been 

considered by OWCP, in that it contains an opinion, unsupported by medical rationale, that the 

February 13, 2015 lifting incident caused a back injury. The reports are similar in that their lack 

of medical rationale on the matter of causal relationship renders them of limited probative value

on the underlying issue of this case.19 

Appellant submitted January 16, March 21, and May 23, 2017 reports of Ms. Castro, an 

attending physician assistant. The Board notes that these reports do not constitute probative 

medical evidence because they were not prepared by a physician within the meaning of FECA. 

Under FECA, the report of a nonphysician, including a physician assistant, does not constitute 

probative medical evidence.20 These nonmedical reports would not be relevant to the underlying 

medical issue of this case and therefore their submission would not require OWCP to reopen 

appellant’s case for further review of the merits of the claim.21

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit 

review.

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).

 

18 See supra note 14.

19 See D.R., Docket No. 16-0528 (issued August 24, 2016) (finding that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale explaining the relationship between a given 

employment activity and a diagnosed medical condition).

 

20 R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-0829 (issued August 20, 2013). See

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

21 See supra note 15. Appellant also submitted an undated letter which she originally submitted on June 2, 2015 to 

effectuate a request for reconsideration of OWCP’s April 23, 2015 decision. However, the Board has held that the 

submission of evidence or argument which repeats or duplicates evidence or argument already in the case record does 

not constitute a basis for reopening a case. See supra note 14.
8

ORDER

IT IS HEREBY ORDERED THAT the September 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 28, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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