United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Long Beach, CA, Employer

__________________________________________

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Docket No. 17-0790

Issued: May 22, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 28, 2017 appellant filed a timely appeal from an October 25, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated August 24, 2015, 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.

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 May 25, 2010 appellant, then a 52-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging injuries to her left shoulder, neck, and lower back due to her 

job requirements which included bending, twisting, and lifting while casing mail as well as

 

1 5 U.S.C. § 8101 et seq.
2

walking and carrying a mailbag on her left shoulder while delivering mail. She did not stop work

at that time.

In November 2010, OWCP initially accepted appellant’s claim for adhesive capsulitis of 

her left shoulder, sprain of her left shoulder/upper arm (rotator cuff), and chondromalacia of her

left knee patella.2

In December 2009, appellant began to receive medical treatment from Dr. Edward 

Mittleman, an attending Board-certified orthopedic surgeon. On January 14, 2010 Dr. Mittleman 

indicated that she reported that she had developed left shoulder pain approximately eight months 

prior and later developed neck, low back, and lower extremity symptoms. He diagnosed cervical 

disc syndrome, lumbar disc protrusion with radiculopathy, and left shoulder tendinitis and 

impingement, and indicated that appellant could perform modified work with restrictions including 

no lifting more than 20 pounds.3

Appellant also received treatment from Dr. Charles Herring, a Board-certified orthopedic 

surgeon, and Dr. Hosea Brown, III, a Board-certified internist. On September 10, 2010

Dr. Herring examined her and recommended that she undergo left shoulder surgery. Dr. Brown 

authored a November 8, 2010 report containing the diagnoses of left shoulder tendinitis with 

radiculopathy, full-thickness left rotator cuff tear, multilevel cervical disc herniations with

radiculopathy, and lumbar disc protrusion with radiculitis. He determined that appellant was 

totally disabled from work.

In a November 23, 2010 report, Dr. Gary L. Baker, an attending Board-certified 

anesthesiologist and pain medicine physician, noted that appellant complained of neck pain 

radiating into her left upper extremity and low back pain radiating into her right lower extremity. 

Dr. Baker diagnosed several conditions, including cervical radiculopathy, lumbar radiculopathy, 

patellar chondromalacia, and the left shoulder conditions of adhesive capsulitis, internal 

derangement, and rotator cuff sprain/strain.

OWCP referred appellant for a second opinion examination to Dr. Ghol B. Ha’Eri, a 

Board-certified orthopedic surgeon. It asked him to provide an opinion regarding her ability to 

work.

In a December 8, 2010 report, Dr. Ha’Eri indicated that appellant presently complained of 

neck pain radiating into her left upper extremity, left shoulder pain, and lower back pain radiating 

down to her left thigh. He diagnosed rotator cuff tear/tendinitis, glenohumeral joint 

chondromalacia, and mild acromioclavicular joint degeneration of the left shoulder, disc 

degeneration with mild protrusions at C4 through C7, and disc protrusion (posterior right 

paracentral) at L4-5. Dr. Ha’Eri advised that appellant’s cervical condition was not related to 

employment factors. He determined that she had partial disability due to her work-related left 

shoulder and back conditions since December 17, 2009. Dr. Ha’Eri completed a work capacity 

evaluation form (Form OWCP-5c) on December 8, 2010 in which he indicated that appellant could

 

2 Appellant periodically stopped work beginning in late-2010 and received compensation on the daily rolls for 

intermittent periods of disability beginning November 27, 2010.

3 Dr. Mittleman continued to treat appellant on a periodic basis and he provided a similar account of her condition 

and disability in reports dated May 14 and October 11, 2010.
3

perform modified-duty work on a full-time basis with restrictions, including no lifting, pushing, 

or pulling more than 10 pounds, no walking for more than two hours per day, no standing for more 

than two hours per day, and no engaging in squatting, kneeling, or climbing.

OWCP determined that there was a conflict in the medical opinion evidence between

Dr. Ha’Eri, who found appellant capable of modified-duty work, and Dr. Brown, who found that 

she was totally disabled from work. It referred her to Dr. Edward Green, a Board-certified 

orthopedic surgeon, for an impartial medical examination and opinion regarding whether she had 

disability due to an employment-related condition.

In a May 5, 2011 report, Dr. Green discussed appellant’s factual and medical history and 

detailed his physical examination findings. He provided several diagnoses including cervical spine 

degenerative disc disease, left shoulder impingement, left rotator cuff tear, and lumbar spine 

degenerative disc disease. Dr. Green indicated that appellant’s cervical condition was due to 

preexisting osteoarthritis and degenerative disc changes. He advised that the prior findings on 

physical examination and diagnostic testing showed that she had been totally disabled between 

early-November and early-December 2010, but that she only had partial disability after that time 

period. Dr. Green completed a Form OWCP-5c on May 5, 2011 in which he indicated that 

appellant could perform modified-duty work on a full-time basis with restrictions, including no 

lifting, pushing, or pulling more than 10 pounds, no walking for more than two hours per day, no 

standing for more than two hours per day, and no engaging in squatting, kneeling, or climbing.4

Appellant stopped work in mid-2011 and she filed a claim for compensation (Form CA-7) 

alleging that she had disability for the period July 27 to September 16, 2011 due to her accepted 

work injuries.

On December 29, 2011 Dr. Herring performed OWCP-approved left shoulder surgery 

including arthroscopic rotator cuff repair and subacromial decompression.

By decision dated April 18, 2012, OWCP denied appellant’s claim for wage-loss 

compensation for the period July 27 to September 16, 2011, finding that she failed to submit 

medical evidence sufficient to establish employment-related disability for this period.

On September 14, 2012 appellant requested reconsideration of OWCP’s April 18, 2012 

decision.

5

 She submitted a September 6, 2012 report from Dr. Mittleman, who asserted that her

present cervical condition was employment related and recommended that OWCP accept the 

conditions of lumbar disc protrusion and cervical spine degenerative disease.

 

4 OWCP requested that Dr. Green provide a supplemental report clarifying whether he felt that appellant’s 

continuing cervical and lumbar conditions were related to her work. On March 22, 2012 Dr. Green responded and 

indicated that her cervical and lumbar conditions were preexisting and nonindustrial in nature. He posited that 

appellant’s disability was not related to an employment-related condition.

5 OWCP had received an August 2, 2012 letter in which appellant’s union representative requested that the accepted 

conditions be expanded to include several cervical conditions.
4

In a December 4, 2012 duty status report (Form CA-17), Dr. Herring indicated that 

appellant could return to full-time work with restrictions including lifting/carrying no more than 

seven pounds.

By decision dated December 13, 2012, OWCP denied modification of its April 18, 2012 

decision denying appellant’s claim for wage loss for the period July 27 to September 16, 2011. 

However, in another December 13, 2012 decision, it expanded the accepted conditions to include 

displacement of lumbar intervertebral disc without myelopathy.

In February 2013, appellant returned to part-time work for the employing establishment 

and, in May 2013, she began working in the full-time position of customer care agent.

6

 By decision 

dated June 20, 2014, OWCP adjusted her wage-loss compensation to reflect her ability to earn 

wages as a customer care agent.

On August 20, 2013 appellant requested reconsideration of OWCP’s December 13, 2012 

decision which had denied wage-loss compensation and, by decision dated October 28, 2013, 

OWCP denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a).

In a September 15, 2014 report, Dr. Basimah Khulusi, an attending Board-certified 

physical medicine and rehabilitation physician, posited that appellant’s cervical condition was 

related to factors of her federal employment.

In January 2015, appellant began working approximately 6 hours per day (instead of 

approximately 10 hours per day) on each of her four workdays per week in accordance with the 

recommendation of Dr. Khulusi.

OWCP referred appellant’s case to Dr. Leonard A. Simpson, a Board-certified orthopedic 

surgeon serving as an OWCP medical adviser. It asked him to indicate whether her cervical 

condition was related to employment factors.

In a report dated February 25, 2015, Dr. Simpson noted that the medical evidence of record 

showed that appellant had multilevel cervical degenerative disc disease with disc protrusion and 

some degree of central and foraminal stenosis. He recommended that OWCP not expand the 

accepted conditions to include a cervical condition at the current time. Dr. Simpson indicated that 

there was conflict in the medical opinion evidence regarding whether appellant sustained an 

employment-related cervical condition and he recommended that she be referred to an impartial 

medical specialist.

Appellant continued to work approximately six hours per day on each of her four workdays 

per week, and she filed claims for compensation for partial disability covering the period January 9 

to April 3, 2015.

 

6 Appellant worked four days per week and each of the workdays were approximately 10 hours long.
5

In an April 9, 2015 letter, OWCP requested that appellant submit additional factual and 

medical evidence in support of her claim for partial disability for the period January 9 to 

April 3, 2015.

Appellant submitted an April 6, 2015 report in which Dr. Khulusi diagnosed various left 

shoulder and low back conditions as well as multilevel cervical disc herniations with 

radiculopathy. Dr. Khulusi recommended that she continue with her modified work without 

specifying the number of hours she could work per week.

In a May 4, 2016 report, Dr. Khulusi expressed her opinion that appellant’s cervical 

conditions were employment related and requested that OWCP expand the accepted conditions to 

include cervical spine degenerative disease (aggravation), cervical spine chronic myofascial strain, 

and cervical radiculopathy. She posited that appellant’s duties as a city letter carrier over the 

course of 10 years, including carrying a heavy mail satchel, using her arms to sort/case mail, and 

pushing mail hampers, caused the diagnosed cervical conditions. Dr. Khulusi noted that appellant 

demonstrated cervical spasms and limited range of motion of her cervical spine, and posited that 

she should not work more than six hours per day. She asserted that, because OWCP had not 

accepted “the diagnosis of the neck condition,” it had continued to deny “the disability 

compensation.”

By decision dated August 10, 2015, OWCP denied appellant’s claim for disability 

compensation for the period January 9 to April 3, 2015. It found that she failed to submit medial 

evidence, with objective findings, which established that she had increased disability for this 

period due to a worsening of her accepted employment conditions.

In an appeal request form dated July 27, 2016, received on the same date, appellant 

requested reconsideration of OWCP’s August 10, 2015 decision.

Appellant submitted an August 24, 2015 report from Dr. Brown who reported that she 

complained of left shoulder, low back, and neck discomfort which she rated at the level of 7 out 

of 10. Dr. Brown reported his findings upon physical examination, including cervical spasms, and 

diagnosed various left shoulder, cervical spine, left knee, and low back conditions. He found that 

appellant had returned to modified work on August 24, 2015 in accordance with restrictions 

delineated in a Form CA-17 he completed on that date. In an August 24, 2015 Form CA-17,

Dr. Brown diagnosed left rotator cuff tear and indicated that she could return to work, but had to 

sit and stand as needed and take a 15-minute break every two hours.

7

In an October 5, 2015 report, Dr. Khulusi reported physical examination findings for 

appellant’s left shoulder and low back and diagnosed various left shoulder, cervical spine, left 

knee, and low back conditions. She indicated that appellant could return to modified work on 

October 5, 2015 and noted that she would continue her “on the same restrictions on the job.” In 

January 26 and April 26, 2016 reports, Dr. Khulusi provided similar assessments of appellant’s 

medical condition. In the January 26, 2016 report, she indicated that appellant could return to 

 

7

In an August 16, 2016 report, Dr. Brown provided a similar assessment of appellant’s medical condition, but he 

did not provide an opinion on her ability to work.
6

modified work on January 26, 2016 and noted that she would continue her “on the same restrictions 

on the job.”

In an October 13, 2015 report, Dr. Herring provided physical examination findings for 

appellant’s left shoulder and diagnosed several left shoulder and cervical spine conditions. With 

respect to her work status, he indicated, “Please see the [Form] CA-17.” On January 12, 2016

Dr. Herring noted that appellant exhibited left shoulder weakness, cervical muscle tightness/

tenderness, and limited range of motion of the cervical spine. Regarding her work status, he noted, 

“Modified duty per [Form] CA-17 of primary treating physician.”

8

In a report dated July 21, 2016, Dr. Khulusi asserted that she had already provided the 

medical arguments which showed that appellant’s cervical conditions were caused by her work at 

the employing establishment. She noted that Dr. Simpson, an OWCP medical adviser, had 

indicated on February 25, 2015 that there was a conflict in the medical opinion evidence regarding 

whether she sustained an employment-related cervical condition and recommended that she be 

referred to an impartial medical specialist. Dr. Khulusi noted that, because OWCP had not 

followed Dr. Simpson’s recommendation, there was a conflict in the medical opinion evidence 

regarding whether appellant sustained an employment-related cervical condition which not been 

resolved. She recommended that appellant be evaluated by an impartial medical specialist.

Appellant also submitted notes of physical therapists describing physical therapy sessions 

in 2015 and 2016.

By decision dated October 25, 2016, 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 and argument 

she submitted in support of her reconsideration request was irrelevant or immaterial to her claim 

for increased disability due to an accepted employment condition. In particular, OWCP indicated 

that the question of whether appellant had an employment-related cervical condition was not 

currently before it on reconsideration.

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.9 

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.10 If OWCP determines 

 

8

In an August 2, 2016 report, Dr. Herring noted that appellant had retired from the employing establishment. A 

document from September 2016 indicates that appellant had applied for benefits from the Social Security 

Administration.

9 5 U.S.C. § 8128(a).

10 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

that at least one of these requirements is met, it reopens and reviews the case on its merits.11 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.12

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

of OWCP decision for which review is sought.13 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 Employee’s’ Compensation System (iFECS).14 If the last day of the oneyear time period is a Saturday, Sunday, or a legal holiday, it will still consider a request to be 

timely filed if it is received on the next business day.15

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

evidence or argument already in the case record16 and the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case.17

ANALYSIS 

OWCP issued a decision on August 10, 2015, and it received appellant’s request for 

reconsideration on July 27, 2016. Appellant’s request was timely filed because it was received 

within one year of OWCP’s August 10, 2015 decision.18

The issue presented on appeal is whether appellant’s July 27, 2016 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. 

Appellant submitted various medical reports in support of her reconsideration request. The 

Board notes that the underlying issue in this case is whether she met her burden of proof to establish 

 

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

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

13 20 C.F.R. § 10.607(a).

14 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 decision for which review is sought.

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

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

17 Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

18 See supra notes 13 through 15.
8

partial disability for the period January 9 to April 3, 2015 due to her accepted employment 

conditions, and this is a medical issue which must be addressed by relevant medical evidence.19 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 any such evidence in this case. 

Although appellant submitted several medical reports, dated between April 6, 2015 and 

July 21, 2016, none of these reports address the relevant issue of this case, i.e., whether she has 

disability for the period January 9 to April 3, 2015 due to her accepted employment conditions. 

The Board has carefully reviewed these reports and notes that none of them contain an opinion 

regarding her claimed partial disability for the period January 9 to April 3, 2015. These reports do

not require OWCP to reopen appellant’s case for merit review, because the Board has held that the 

submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a case.20

In an August 24, 2015 report, Dr. Brown indicated that appellant could return to work on 

that date, but had to sit and stand as needed and take a 15-minute break every two hours. In an 

October 5, 2015 report, Dr. Khulusi indicated that she could return to modified work on October 5, 

2015 and noted that he would continue her “on the same restrictions on the job.” In the January 26, 

2016 report, he indicated that appellant could return to modified work on January 26, 2016 and 

noted that he would continue her “on the same restrictions on the job.” In a January 12, 2016 

report, Dr. Herring noted with respect to her work status, “Modified duty per [Form] CA-17 of 

primary treating physician.” However, he did not identify any particular Form CA-17. As noted, 

none of the reports submitted by appellant in support of her reconsideration request relate to the 

claimed period of partial disability (January 9 to April 3, 2015), a period which was denied by 

OWCP in its August 10, 2015 decision.21

In support of her reconsideration request, appellant also submitted reports in which

Dr. Khulusi argued that she had an employment-related cervical condition.22 However, these 

reports do not require OWCP to reopen her case for merit review because they are irrelevant to the 

main issue of on reconsideration, i.e., her claim for partial disability between January 9 and 

April 3, 2015 due to an accepted employment condition. The Board notes that OWCP did not 

 

19 See Bobbie F. Cowart, 55 ECAB 746 (2004). OWCP accepted appellant’s claim for adhesive capsulitis of her 

left shoulder, sprain of her left shoulder/upper arm (rotator cuff), chondromalacia of her left knee patella, and 

displacement of lumbar intervertebral disc without myelopathy. In 2013, appellant began working as a customer care 

agent for the employing establishment which involved her working four days per week for approximately 10 hours 

each workday. She only worked approximately six hours each workday for the period January 9 to April 3, 2015 and 

she claimed that she had partial disability due to a worsening of her employment-related conditions.

20 See supra note 17.

21 Appellant also submitted reports of an attending physical therapist, but these reports are not relevant because the 

main issue of this case is medical in nature. The Board has held that physical therapists are not physicians within the 

meaning of FECA and their reports do not constitute probative medical evidence. See S.T., Docket No. 17-0913 

(issued June 23, 2017) (a physical therapist is not a physician under FECA).

22 In a May 4, 2016 report, Dr. Khulusi expressed her opinion that appellant’s cervical conditions were employment 

related and requested that OWCP expand the accepted conditions to include cervical spine degenerative disease 

(aggravation), cervical spine chronic myofascial strain, and cervical radiculopathy. In a report dated July 21, 2016, 

she asserted that there was a conflict in the medical opinion evidence regarding whether appellant sustained an 

employment-related cervical condition and recommended that she be referred to an impartial medical specialist.
9

develop the matter of whether appellant had an employment-related cervical condition and OWCP 

specifically indicated in its last merit decision, dated August 10, 2015, that it was not considering 

the matter at that time. As noted above, the Board has held that the submission of evidence or 

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

reopening a case.23 

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).

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 22, 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

 

23 See supra note 17.