United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Belton, SC, Employer

__________________________________________

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Docket No. 18-0858

Issued: November 19, 2019

Appearances: Case Submitted on the Record

Joanne Marie Wright, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 15, 2018 appellant, through her representative, filed a timely appeal from a

January 24, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days have elapsed since OWCP’s last merit decision, dated January 23, 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 over the merits of this case.3

 

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.

3 The Board notes that following the January 23, 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.
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 December 10, 2016 appellant, then a 50-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed a herniated disc, cervical spondylosis,

and cervical radiculopathy as a result of performing repetitive work duties. She first became aware 

of her condition on April 16, 2016 and first realized it was causally related to factors of her federal 

employment on November 29, 2016. Appellant stopped work on April 29, 2016.

In a statement dated December 9, 2016, appellant indicated that she began experiencing 

neck pain shortly after a fall on April 16, 2016 in which she injured her right knee, wrist, and 

shoulder. She noted that on April 23, 2016 she used her left hand, arm, and shoulder casing mail

and pulling and throwing parcels and experienced severe neck, left arm, shoulder, and hand pain

with tingling in her fingers. Appellant also noted that she was treated by a physician and underwent 

physical therapy, but conservative measures failed and she was scheduled to undergo surgery on 

December 19, 2016.4 

In a May 24, 2016 report, Dr. Larry S. Davidson, a Board-certified neurosurgeon, treated 

appellant for lumbar and cervical spine pain radiating into the right hip and leg. Appellant reported 

falling out of her mail truck on April 16, 2016. Dr. Davidson diagnosed cervical spondylosis,

cervical radiculopathy, arthralgia of the right hip, and acute pain of the right knee. In an addendum 

report dated June 9, 2016, he indicated that appellant’s cervical spinal pathology and symptoms 

were referable to her employment injury of April 16, 2016. In a November 29, 2016 report,

Dr. Davidson treated her for cervical spondylosis that resulted in numbness and tingling in her left 

hand and arm. He indicated that a May 16, 2016 magnetic resonance imaging (MRI) scan of the 

cervical spine revealed significant spondylitic disease at C6-7 and bilateral neuroforaminal 

narrowing affecting the C7 nerve roots. Dr. Davidson again attributed appellant’s cervical spinal 

pathology to her employment injury of April 16, 2016. He recommended an anterior cervical 

discectomy and fusion at C6-7.

On June 12, 2016 Dr. Susan Miranda, a Board-certified family practitioner, treated

appellant for injuries sustained on April 16, 2016 when she exited a postal delivery truck and fell

landing on her right side, knee, and hand. In reports dated April 18 to 28, 2016, she diagnosed 

right shoulder strain, right wrist strain/swelling, and right knee pain/swelling/contusion. Appellant 

reported returning to limited-duty work without the use of her right arm and her supervisor 

assigned her to case mail and throw parcels and bundles of magazines using her left hand and arm. 

She subsequently developed left hand and finger numbness after performing repetitive tasks with 

her left hand. In reports dated May 5 and 10, 2016, appellant was placed out of work and 

prescribed steroids and muscle relaxers. Dr. Miranda opined that appellant’s injuries were work

related as the initial right-sided injuries occurred from falling out of the delivery truck hitting her 

right knee, right side, arm, and shoulder. She further opined that appellant’s left-sided neck and 

 

4 Appellant indicated that she filed a separate traumatic injury claim resulting from the April 16, 2016 fall, which 

OWCP accepted on November 25, 2016 under OWCP File No. xxxxxx718.
3

left arm issues were work related as her symptoms began when she was instructed to use her left 

hand and arm to case mail, throw parcels, and bundles of magazines. Dr. Miranda indicated that 

the overuse injury was work related occurring after repetitive use of the left arm during her job.

In a December 20, 2016 development letter, OWCP advised appellant that the evidence 

submitted was insufficient to establish that she experienced the employment factors alleged to have 

caused the injury. It specifically noted that Dr. Davidson’s November 29, 2016 treatment note 

attributed appellant’s cervical spine pathology to her employment injury of April 16, 2016, which 

was a separate traumatic injury claim accepted for sprain of the right shoulder, right wrist, and 

contusion of the right knee under OWCP File No. xxxxxx718. OWCP also indicated that the 

evidence submitted was insufficient to establish how employment activities caused, contributed 

to, or aggravated her medical condition. It requested that appellant respond to a questionnaire to 

substantiate the factual elements of her claim. OWCP afforded her 30 days to submit the requested 

information.

In a work status report dated April 28, 2016, prepared by a health care provider whose 

signature was illegible, appellant was restricted from using both arms due to overuse.

On December 29, 2016 Dr. Davidson treated appellant for cervical spondylosis and 

cervical disc herniation that resulted in numbness to her left hand and arm. He opined that 

appellant’s cervical spinal pathology, diagnoses, and symptoms were attributed to her work injury 

of April 16, 2016, which was further aggravated by use of her left hand, arm, and shoulder to case 

mail and throw parcels and magazines. Conservative treatment failed and he recommended 

surgical intervention.

In response to OWCP’s development letter, appellant indicated that her condition was 

caused by the employment injury on April 16, 2016. After returning to limited-duty work, she was 

casing mail with her left hand, arm, and shoulder for approximately two weeks, for one half hour 

to five hours at a time, which aggravated her herniated disc. Appellant noted sustaining an injury 

on April 16, 2016 which was accepted by OWCP under File No. xxxxxx718. She indicated that 

in File No. xxxxxx718 OWCP instructed her to file a new Form CA-2 for her left-side conditions. 

Appellant submitted copies of light-duty request forms submitted under File No. xxxxxx718.

The employing establishment challenged appellant’s claim. In a January 12, 2017 

statement, R.H., appellant’s supervisor, noted that she had accepted a modified job offer on 

April 20, 2016, which conformed to her physician assigned restrictions. He instructed her not to 

exceed her restrictions. R.H. noted that appellant had not complained of pain or discomfort during 

the eight partial days she worked or asserted that she was working outside her restrictions. He 

indicated that appellant worked an hour or two at most each of the eight days.

A January 13, 2017 statement from a human resource specialist for the employing 

establishment noted that appellant worked only 17.97 hours over the course of eight partial days. 

The specialist further noted there was no medical evidence which supported a diagnosis related to 

the activity at work.

By decision dated January 23, 2017, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish that the events occurred as described. It further 

indicated that appellant had not submitted medical evidence containing a medical diagnoses in 

connection with the injury or event, or evidence that she developed a condition due to repetitive 
4

work factors “(an occupational disease injury).” OWCP noted that the medical evidence only 

contained a diagnosis of “pain” which was a symptom and not a diagnoses of a medical condition. 

It noted that the evidence supported that she sustained a traumatic injury on April 16, 2016 when 

she fell from her postal truck. OWCP concluded, therefore, that the requirements had not been 

met to establish an injury as defined by FECA.

Appellant submitted medical records dated January 30 and February 1, 2006 from a 

healthcare provider whose signature was illegible who advised that appellant injured her left 

shoulder while playing basketball. A February 1, 2006 x-ray of the left shoulder revealed no 

abnormalities.

A left shoulder and scapular region MRI scan dated February 2, 2006 was normal. A left 

shoulder MRI scan of even date revealed an abnormal signal of the posterior inferior labral 

interface, which could represent a minor tear with no evidence of a rotator cuff tear or significant 

acromioclavicular joint disease.

On January 5, 2018 Dr. Davidson indicated that appellant sustained an employment injury 

on April 16, 2016 when she fell from her postal vehicle and injured her right shoulder, wrist, and 

cervical spine. He noted that appellant subsequently used her left hand to perform her letter carrier 

duties and experienced pain in the cervical spine, spondylosis, and a herniated disc at C6-7 as 

confirmed by the MRI scan. Dr. Davidson opined that appellant’s cervical spinal pathology at C6-

7, disc herniation, cervical spondylosis, and numbness in her left hand with tingling was due to her 

employment injury on April 16, 2016. He opined that her condition was not preexisting.

On January 8, 2018 appellant requested reconsideration. She indicated that on April 16, 

2016 she was injured while performing her letter carrier duties under OWCP File No. xxxxxx718,

which was accepted for sprain of the right shoulder, right wrist, and contusion of the right knee. 

Appellant asserted that OWCP’s decision dated November 25, 2016, under File No. xxxxxx718, 

instructed her to file a new occupational disease claim for her left neck and arm conditions because

she described new work factors that contributed to the development of these conditions. She

indicated that on December 10, 2016 she filed the current claim. Appellant requested that the 

current claim be doubled with her existing claim File No. xxxxxx718 based on OWCP regulations 

as the claims are for the same work injury, which occurred on the same date, and are related to the 

same body parts.

By decision dated January 24, 2018, OWCP denied appellant’s January 8, 2018 request for 

reconsideration finding that the evidence submitted was insufficient to warrant reconsideration of 

the merits of her claim.

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 or her own motion or on application.5

 

5 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); 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).
5

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 it chooses to grant reconsideration, 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

ANALYSIS

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

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

In her January 8, 2018 reconsideration request, appellant noted that OWCP instructed her 

to file a new occupational disease claim following her April 16, 2016 injury, which was accepted 

under File No. xxxxxx718 for sprain of the right shoulder, right wrist, and contusion of the right 

knee. OWCP noted that she had described new employment factors. Appellant indicated that she 

complied with OWCP’s instructions by filing an occupational disease claim for left neck and arm 

conditions, to which OWCP assigned File No. xxxxxx256, the claim currently before the Board 

on appeal. However, she requested that, pursuant to its procedures, that OWCP combine both 

claims as all of her work conditions resulted from the same injury, which occurred on the same 

date. The Board finds that this is a relevant legal argument made for the first time on 

reconsideration, under criteria number two under 20 C.F.R. § 10.606(b)(3). Appellant requested 

that OWCP combine File Nos. xxxxxx718 and xxxxxx256, claiming that all claimed conditions 

arose from the same set of employment factors on April 16, 2016. As she advanced a legal 

argument relevant to her claim which had not previously been considered by OWCP, such 

argument warrants further consideration by a merit review of appellant’s claim.10

The Board will therefore remand the case to OWCP to properly consider appellant’s claim 

and issue an appropriate merit decision.

 

6 20 C.F.R. § 10.606(b)(3); see L.D., id.; 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). The one-year period begins on the next day after the date of the original contested decision. 

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.

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 See Q.M., Docket No. 18-0345 (issued May 17, 2019); D.M., Docket No. 16-1754 (issued January 10, 2018).
6

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: November 19, 2019

Washington, DC 

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board