United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, CUSTOMER CARE 

CENTER, Los Angeles, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1899

Issued: August 3, 2018

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 September 8, 2017 appellant, through counsel, filed a timely appeal from a July 17, 

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

than 180 days elapsed from OWCP’s last merit decision dated February 7, 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 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

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 January 19, 2016 appellant, then a 47-year-old customer care agent, filed an 

occupational disease claim (Form CA-2) alleging that she sustained pain in her neck, right 

shoulder, right hand, and right wrist causally related to factors of her federal employment. She did 

not stop work. OWCP accepted the claim for right shoulder bursitis, impingement syndrome of 

the right shoulder, a sprain of the ligaments of the cervical spine, and carpal tunnel syndrome of 

the right and left upper limbs.2 

In a progress report dated May 13, 2016, Dr. Christopher P. DeCarlo, a physiatrist, 

diagnosed bilateral carpal tunnel syndrome, right shoulder bursitis, and cervical discogenic disc 

disease. He found that appellant could perform modified employment.

Dr. Charles Herring, a Board-certified orthopedic surgeon, in a report dated June 2, 2016, 

discussed appellant’s history of injury and diagnosed right shoulder subacromial bursitis and 

impingement syndrome and a right trapezius strain. He deferred any disability determinations to 

her attending physician.

On June 3, 2016 Dr. DeCarlo diagnosed bilateral carpal tunnel syndrome, right shoulder 

bursitis, and cervical discogenic disease. He again found that appellant could perform modified 

work. 

Appellant, on June 15, 2016, filed a claim for compensation (Form CA-7) requesting wageloss compensation for disability from May 25 through June 3, 2016. She continued to submit 

claims for wage-loss compensation for time lost from work.3 

In a July 8, 2016 duty status report (Form CA-17), Dr. DeCarlo found that appellant could 

perform her usual employment with an ergonomic workstation. In a July 21, 2016 CA-17 form

and July 21 and September 1, 2016 progress reports, he advised that she was totally disabled. 

Dr. DeCarlo continued to submit progress reports finding that appellant was totally disabled. On 

September 1, 2016 he noted that appellant had an allergic reaction to a steroid injection received 

August 25, 2016. Dr. DeCarlo found that she was totally disabled due to cervical spine and right 

shoulder discomfort, noting that she had a positive impingement sign on the right and mild positive 

Tinel’s signs at the wrists. 

 

2 OWCP previously accepted that appellant sustained lumbosacral and left groin sprains on April 29, 2008 under 

File No. xxxxxx014 and right ankle sprain on February 27, 2012 under File No. xxxxxx703. 

3 Appellant requested wage-loss compensation from May 25 through June 3, 2016, June 22 through 28, 2016, 

July 20 through October 5, 2016, and November 7 through February 15, 2017.
3

On August 4, 2016 the employing establishment offered appellant a position as a modified 

customer care agent effective August 20, 2016. The duties required lifting, carrying, pushing, and 

pulling up to five pounds, occasional fine manipulation, and occasional use of a computer mouse. 

OWCP, on October 4, 2016, referred appellant to Dr. Frederic G. Nicola, a Board-certified 

orthopedic surgeon, for a second opinion examination. It requested that Dr. Nicola discuss the 

nature and extent of her current condition, its relationship to her employment, and any periods of 

total disability.

In a report dated November 3, 2016, Dr. Nicola reviewed appellant’s history of shoulder 

and neck pain from repetitive typing in the course of her employment. He diagnosed a sprain/strain 

of the cervical spine superimposed upon mild cervical degenerative changes, subacromial bursitis 

of the right shoulder, and bilateral carpal tunnel syndrome. With regard to periods of total 

disability, Dr. Nicola advised that appellant was totally disabled “concurrent with the time that she 

had a cortisone injection in her right shoulder.” He found that she could perform sedentary 

employment with restrictions against reaching with flexion and horizontal abduction of the right 

shoulder and keyboarding.

Dr. DeCarlo, in a January 16, 2017 progress report, diagnosed bilateral carpal tunnel 

syndrome, right shoulder bursitis, cervical discogenic disease, and migraine headaches. He noted 

that neck and bilateral wrist and hand pain made activities of daily living difficult. Dr. DeCarlo 

opined that appellant was temporarily totally disabled “due to the fact she is taking tramadol on a 

regular basis.”

4

 On examination, he found a mild positive Tinel’s sign, tenderness to palpation of 

the paraspinal musculature of the cervical spine, and tenderness at the acromioclavicular joint and 

subdeltoid bursa area of the right shoulder.

By decision dated February 7, 2017, OWCP found that appellant was entitled to wage-loss 

compensation for total disability from August 25 through November 3, 2016 when she had a 

reaction to a cortisone shot. It denied her claim for wage-loss compensation from May 25 to 

August 25, 2016 and from November 3, 2016 onward. OWCP determined that the medical 

evidence of record did not explain why her condition worsened such that she was not able to 

perform modified duty during these periods.

Dr. DeCarlo, in a February 15, 2017 progress report, determined that appellant could 

perform modified work with the same restrictions.5 In a March 15, 2017 CA-17 form, he advised 

that she was disabled from employment.

On March 21, 2017 Dr. DeCarlo reviewed OWCP’s February 7, 2017 decision. He 

indicated that appellant was temporarily totally disabled beginning July 21, 2016 as increased 

neck, right shoulder, and bilateral hand, wrist, and finger pain rendered her unable to perform her 

 

4

In January 2017 CA-17 forms, Dr. DeCarlo indicated that appellant was totally disabled.

5 On February 9, 2017 Dr. Herring requested authorization for a right subacromial decompression with debridement 

and repair. On March 15, 2017 an OWCP medical adviser recommended authorization for an anterior acromioplasty 

to treat acromial impingement syndrome and, if necessary, a rotator cuff repair. 
4

daily activities. Dr. DeCarlo also noted that she could not operate a motor vehicle due to her 

narcotic use. He related:

“At the time I originally placed [appellant] on TTD [temporary total disability] due 

to the above-mentioned factors, there were objective findings of tenderness to 

palpation along the paraspinal musculature of the cervical spine and upper trapezius 

muscles with spasming noted. There was also tenderness to palpation at the 

suboccipital muscles around the skull. [Appellant] had a negative compression test, 

negative Suprling; however, there was increased pain with neck extension.” 

Dr. DeCarlo related that appellant had a positive right Tinel’s test and mild positive left 

Tinel’s test, positive impingement signs for the right shoulder, and difficulty with range of motion. 

He concluded that she was totally disabled due to her need for increased pain medication such that 

she could not drive or operate machines. 

Dr. DeCarlo, in an April 17, 2017 progress report, noted that appellant was scheduled for 

surgery on her right shoulder. In an April 17, 2017 CA-17 form, he advised that she was totally 

disabled. 

Appellant, on April 19, 2017, requested reconsideration. 

On May 4, 2017 Dr. Herring diagnosed impingement syndrome and subacromial bursitis 

of the right shoulder and a right trapezius strain. On examination he found a positive Tinel’s sign 

and Phalen’s test. Dr. Herring advised that appellant would be totally disabled after the surgery. 

In a May 17, 2017 CA-20 form, he found that she was totally disabled beginning May 15, 2017. 

Dr. Herring performed a right shoulder subacromial decompression with distal clavicle 

excision and extensive debridement on May 15, 2017. OWCP paid appellant compensation for 

temporary total disability beginning that date. In a June 1, 2017 progress report, Dr. Herring 

discussed appellant’s condition subsequent to surgery. 

In a June 7, 2017 progress report, Dr. DeCarlo noted that appellant had right shoulder 

surgery on May 15, 2017 and was currently undergoing physical therapy. He found that she was 

totally disabled. In a July 3, 2017 CA-17 form, Dr. Herring indicated that appellant remained 

disabled. 

By decision dated July 17, 2017, OWCP denied appellant’s request for reconsideration 

pursuant to section 8128(a). It found that she had not raised a relevant legal argument or submitted 

new and relevant evidence sufficient to warrant reopening her case for further merit review. 

OWCP determined that the reports from Dr. DeCarlo were cumulative in nature or irrelevant.
5

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

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument 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

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

of OWCP decision for which review is sought.8 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.9 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.10

ANALYSIS

In the last merit decision dated February 7, 2017, OWCP found that appellant had not 

established entitlement to wage-loss compensation for disability from May 25 to August 25, 2016 

and beginning November 3, 2016. It received her request for reconsideration on April 19, 2017. 

Appellant’s request for reconsideration was timely filed because it was received within one year 

of the last merit decision issued February 7, 2017.

The issue presented on appeal is whether appellant’s April 19, 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.

On reconsideration appellant did not contend that OWCP erroneously applied or 

interpreted a specific point of law, or advance a new and relevant legal argument not previously 

considered by OWCP. As appellant did not allege that OWCP erroneously applied or interpreted 

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

not entitled to a review of the merits of her claim based on the first and second requirements under 

section 10.606(b)(3).

Appellant also failed to submit any pertinent new and relevant evidence with her request 

for reconsideration. She submitted a medical evidence from Dr. Herring, including a February 9, 

 

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).

8

Id. at § 10.607(a).

9

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

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

2017 report and request for surgical authorization, a May 4, 2017 progress report finding that she 

would be disabled after the surgery, a copy of a May 15, 2017 operative report, and a June 1, 2017 

progress report regarding her condition subsequent to surgery. Dr. Herring also found that 

appellant was totally disabled in a July 3, 2017 CA-17 form. This new evidence, however, does 

not address the relevant issue of whether she was disabled prior to her May 15, 2017 surgery. 

Evidence that does not address the particular issue involved does not warrant reopening a case for 

merit review.11

Dr. DeCarlo, in a February 15, 2017 progress report, found that appellant could perform 

modified work. In CA-17 forms dated March 15 and April 17, 2017, he indicated that she was 

totally disabled. Dr. DeCarlo’s progress report and form reports are substantially similar to 

previously submitted evidence. The Board has held that evidence which is cumulative of material 

already in the case record is insufficient to warrant reopening a claim for merit review.12

In a March 21, 2017 report, Dr. DeCarlo advised that appellant was totally disabled 

beginning July 21, 2016 due to increased pain in her neck, right shoulder, and bilateral hands, 

wrists, and fingers causing difficulty performing activities of daily living. He related that she 

required narcotic medication due to her pain which rendered her unable to operate machinery or a 

motor vehicle, resulting in total disability. Dr. DeCarlo provided objective findings of tenderness 

to palpation of the muscles of the cervical spine and upper trapezius, positive right shoulder 

impingement, and a positive Tinel’s sign bilaterally. He provided similar findings and 

conclusions, however, in his January 16, 2017 report, which was previously considered by OWCP 

in its prior merit decision. As noted, evidence which is cumulative or duplicative of evidence 

already of record does not constitute relevant and pertinent new evidence not previously 

considered by OWCP.13

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. 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). 

 

11 See J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

12 See L.W., Docket No. 17-1171 (issued May 18, 2018).

13 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the July 17, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 3, 2018

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