United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Rochester Hills, MI, Employer

__________________________________________

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Docket No. 18-1346

Issued: April 3, 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 June 27, 2018 appellant, through counsel, filed a timely appeal from a May 31, 2018 

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

days have elapsed from the last merit decision, dated June 19, 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 claim.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 appellant submitted additional evidence on appeal. 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 September 16, 2011 appellant, then a 43-year-old rural carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that on September 16, 2011 she fractured her left 

ankle when she stepped out of her postal vehicle onto the grass and twisted her left ankle while in 

the performance of duty. She stopped work on that date.

By decision dated November 28, 2011, OWCP accepted appellant’s claim for closed 

fracture of the left distal fibula. It paid wage-loss compensation benefits and placed appellant on 

the periodic rolls, effective July 1, 2012. On January 27, 2012 OWCP expanded acceptance of 

appellant’s claim to include left ankle sprain. 

Appellant underwent authorized left leg and ankle surgery on February 2, 2012. 

OWCP again expanded acceptance of appellant’s claim to include gastroparesis secondary 

to narcotic medication and sacroiliitis.

On December 31, 2013 appellant accepted a modified-duty job offer as a rural carrier

A May 19, 2015 diagnostic examination of appellant’s bilateral feet showed osseous 

excrescence in the lateral base of the first metatarsal, mild bilateral first metatarsal phalangeal joint 

degenerative change, mild hallux valgus deformity, and mild degenerative change in the right 

tibiotalar joint.

In a June 9, 2015 report, Dr. Lawrence Kurz, a Board-certified orthopedic surgeon, treated 

appellant for complaints of numbness and tingling intermittently in her lower extremities, left 

greater than right. He reported that neurological examination of appellant’s upper and lower 

extremities was normal. Dr. Kurz recommended that appellant continue with physical therapy and 

rehabilitation.

On May 19, 2015 OWCP referred appellant, along with the case record and a statement of 

accepted facts (SOAF), to Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon, for a 

second opinion evaluation. In a June 12, 2015 report, Dr. Obianwu determined that appellant’s 

September 16, 2011 employment injury had resolved and that she was able to work without 

restrictions. 

In an August 4, 2015 report, Dr. Philip Henning, Board-certified in physical medicine and 

rehabilitation, related appellant’s complaints of left ankle and foot pain for several years following 

a work injury. Upon physical examination of appellant’s left lower extremity, he observed 

tenderness to palpation along the left peroneal tendons. Tinel’s test was positive along the left 

sural nerve. Dr. Henning diagnosed left sural neuropathy and left peroneal tendinitis

OWCP determined that a conflict in medical opinion existed between Dr. Obianwu, 

OWCP’s referral physician, and appellant’s treating physicians, regarding whether appellant still 
3

required medical treatment and remained disabled due to her accepted September 16, 2011 

employment injury.4 Accordingly, it referred appellant to Dr. Edward Sladek, a Board-certified 

orthopedic surgeon, for an impartial medical examination. 

In a January 17, 2016 report, Dr. Sladek noted his review of the SOAF and the medical 

record. He described the September 16, 2011 employment injury. Upon physical examination of 

appellant’s left foot, Dr. Sladek observed limited inversion of the ankle compared to the right. He 

also noted complaints of tingling across the top of appellant’s foot when he touched behind the 

lateral malleolus. In response to OWCP’s questions, Dr. Sladek indicated that appellant never had 

a fracture of the fibula. He also opined that appellant no longer had residuals of her accepted left 

ankle sprain as her surgery was successful and postoperative results showed that her left ankle was 

stable. Dr. Sladek further reported that there was no evidence of sacroiliitis upon examination. 

He concluded that appellant was capable of returning to her original position.5

On February 3, 2016 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits based on Dr. Obianwu’s September 18, 2012 second opinion and

Dr. Sladek’s January 17, 2016 impartial medical report, which determined that appellant did not 

have residuals or disability causally related to her September 16, 2011 employment injury. It 

provided appellant 30 days to submit additional information. 

By decision dated March 8, 2016, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date. It noted that both Dr. Obianwu, the 

second opinion examiner, and Dr. Sladek, the impartial medical examiner, had determined that 

there were no objective examination findings to demonstrate that appellant still had residuals or 

disability causally related to the September 16, 2011 employment injury. 

On March 18, 2016 appellant, through counsel, requested a telephonic hearing. A 

telephonic hearing was scheduled for November 8, 2016. Counsel did not call in to attend the 

telephonic hearing. Appellant indicated that she wanted to do a review of the written record instead 

of a telephonic hearing.

In support of her review of the written record, appellant submitted the first page of various 

examination notes from the University of Michigan Musculoskeletal Health Center, which 

indicated that appellant had medical appointments on certain dates for various medical diagnoses. 

An April 22, 2015 note related that appellant was treated by Dr. Susannah G. Parke, an osteopathic 

physician specializing in physical medicine and rehabilitation, for low back pain and sacroiliac 

dysfunction. Examination notes dated August 1 and 8, 2016 indicated that appellant was treated 

 

4 An impartial medical examination was scheduled for October 28, 2015. Appellant did not attend the examination. 

On October 29, 2015 OWCP proposed to suspend her wage-loss compensation and medical benefits pursuant to 5 

U.S.C. § 8123(d) because she failed to report to an examination. By decision dated November 12, 2015, it finalized 

the suspension of her wage-loss compensation and termination benefits, effective November 13, 2015. On 

November 17, 2015 appellant, through counsel, requested a telephone hearing before a hearing representative of 

OWCP’s Branch of Hearings and Review. In a September 28, 2016 decision, an OWCP hearing representative 

affirmed the November 12, 2015 decision to suspend appellant’s wage-loss compensation and medical benefits, 

effective November 13, 2015. 

5 On February 3, 2016 OWCP notified appellant that the suspension of her wage-loss compensation benefits would 

be lifted since she had attended the impartial medical examination. Appellant received compensation retroactive to 

November 15, 2015. 
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by Dr. SriKrishna Chandran, Board-certified in physical medicine and rehabilitation, for lumbar 

spondylosis. Appellant was treated by Dr. Henning on April 19, July 5, October 3, and 

November 3, 2016 for left foot sural neuropathy, chronic pain of both ankles, and chronic bilateral 

low back pain without sciatica.

OWCP also received medical reports from 2015.

In a May 19, 2015 report, Dr. Todd Irwin, a Board-certified orthopedic surgeon, noted a 

history of a September 16, 2011 employment-related left ankle injury. He provided physical 

examination findings and diagnosed bilateral peroneal tendinopathy and right lateral ankle 

instability.

In an August 4, 2015 report, Dr. Henning indicated that appellant was referred to him for 

a nerve block due to left ankle and foot pain. Physical examination of the left lower extremity 

revealed tenderness to palpation along the left peroneal tendons. Tinel’s sign was positive along 

the left sural nerve. Dr. Henning diagnosed bilateral carpal tunnel syndrome, left sural neuropathy, 

and left peroneal tendinitis.

By decision dated January 18, 2017, an OWCP hearing representative affirmed the 

March 8, 2016 termination decision. He determined that OWCP had properly relied on the opinion 

of Dr. Sladek, the impartial medical examiner, who determined in a January 17, 2016 report that 

appellant no longer had residuals or disability causally related to her September 16, 2011 

employment injury.

On February 9, 2017 appellant requested reconsideration. By decision dated February 15, 

2017, OWCP denied further merit review of her claim under 5 U.S.C. § 8128(a). It found that 

appellant’s reconsideration request neither raised substantive legal questions nor included new and 

relevant evidence sufficient to warrant further merit review of appellant’s claim.

On February 23, 2017 appellant, through counsel, again requested reconsideration.

Appellant submitted a November 17, 2016 report by Dr. Henning. Dr. Henning indicated 

that appellant was receiving ongoing care at the University of Michigan Health System Department 

of Physical Medicine and Rehabilitation for back, leg, and bilateral ankle pain. He noted that 

appellant had a work-related injury in 2011 and had subsequent surgery to her left ankle in 2012.

By decision dated June 19, 2017, OWCP denied modification of the January 8, 2017 

decision. It found that Dr. Henning had not provided objective findings to support his opinion that 

appellant’s current bilateral ankle pain was causally related to the September 16, 2011 employment 

injury.

On May 1, 2018 appellant, through counsel, requested reconsideration. She submitted 

additional medical evidence.

In a January 25, 2018 examination note, Nancy Thomas, a nurse practitioner, related that 

appellant still had issues of lingering back pain and neuropathic symptoms in the left foot. She 

conducted an examination and noted that sensation was intact to light touch throughout, except 

diminished over the left greater than right dorsal foot.
5

A March 27, 2018 lumbar spine magnetic resonance imaging (MRI) scan report showed 

mild retrolisthesis of L1, L2, and L3 and multilevel degenerative changes with mild disc space 

narrowing of L4-5 and L5-S1.

In a March 28, 2018 report, Dr. Paul Park, a Board-certified neurological surgeon, 

indicated that appellant was treated for progressive and worsening back and bilateral leg 

discomfort, left greater than right. Upon examination, he observed grossly normal strength in her 

lower extremities. Sensation was grossly symmetric to light touch. Dr. Park recommended further 

diagnostic testing.

By decision dated May 31, 2018, OWCP denied further merit review of appellant’s claim 

pursuant to 5 U.S.C. § 8128(a). It found that her reconsideration request neither raised substantive 

legal questions nor included new and relevant evidence sufficient to warrant further merit review 

of appellant’s claim. OWCP noted that the medical evidence submitted was substantially similar 

to evidence previously contained in the case file.

LEGAL PRECEDENT

Section 8128(a) of FECA6 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.7 

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.8 

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

OWCP’s decision for which review is sought.9 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.10 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.11

 

6 Supra note 1.

7 5 U.S.C. § 8128(a).

8 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).

9 20 C.F.R. § 10.607(a).

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

11 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
6

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). 

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

law, and did not advance a relevant legal argument not previously considered by OWCP. 

Accordingly, she 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).

Along with her most recent May 8, 2018 reconsideration request, appellant submitted 

several medical reports not previously considered by OWCP. In a January 25, 2018 note,

Ms. Thomas related appellant’s complaints of lingering neuropathic symptoms in appellant’s left 

foot and reported slightly diminished sensation over appellant’s left foot. In a March 28, 2018 

report, Dr. Park noted examination findings of normal strength and sensation in appellant’s left 

leg. The March 27, 2018 lumbar spine MRI scan report confirmed multilevel degenerative 

changes. The Board finds, however, that these medical reports are repetitive and substantially 

similar to previously submitted medical reports, which noted appellant’s treatment for complaints 

of continued lumbar and bilateral leg pain. As these medical reports merely repeat medical opinion 

already in the case record and previously reviewed by OWCP, it does not constitute a basis for 

reopening the case for further merit review.12

None of the medical evidence submitted provided any objective findings to establish that 

appellant still had residuals or disability causally related to her accepted September 16, 2011 

employment injury. Thus, appellant is also not entitled to a review of the merits of his 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.

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).

 

12 See D.P., Docket No. 17-0450 (issued June 20, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 3, 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