United States Department of Labor

Employees’ Compensation Appeals Board

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T.P., Appellant

and

U.S. POSTAL SERVICE, FORESIGHT 

CARRIER ANNEX, Grand Junction, CO, 

Employer

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Docket No. 18-0608

Issued: August 2, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 30, 2018 appellant filed a timely appeal from a November 6, 2017 nonmerit 

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

elapsed from the last merit decision dated June 22, 2017, to the filing of this appeal, the Board 

lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

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

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

The case has previously been before the Board.2 The facts and circumstances as set forth

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On June 27, 2014 appellant, then a 27-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he sustained a right upper arm sprain when a 

coworker grabbed and twisted his right arm, lifted him off the ground, and slammed him into a 

cart. OWCP accepted the claim for resolved right shoulder strain and an adjustment disorder. 

OWCP determined that a conflict in the medical opinion evidence arose between

Dr. Craig H. Stagg,3an attending occupational medicine specialist, and Dr. James K. Weaver, a 

Board-certified orthopedic surgeon and OWCP referral physician,4regarding whether appellant 

sustained an aggravation of a preexisting left shoulder and a cervical spine condition due to his 

June 27, 2014 work injury. It referred him to Dr. Robert P. Hansen, a Board-certified orthopedic 

surgeon, for an impartial medical examination. In a report dated January 27, 2015, Dr. Hansen 

opined that appellant’s accepted employment injury did not aggravate a preexisting neck or left 

shoulder condition.

By decision dated February 3, 2015, OWCP found that the medical evidence of record 

established that appellant’s right shoulder sprain had resolved and that his left shoulder and neck 

symptoms were unrelated to his work injury. It denied his claim for compensation for disability 

beginning August 28, 2014.5

By decision dated February 1, 2016, an OWCP hearing representative affirmed the 

February 3, 2015 decision. She found that there had been no conflict in medical opinion between

Dr. Weaver and Dr. Stagg at the time OWCP referred appellant to Dr. Hansen. The hearing 

representative determined that Dr. Hansen’s opinion as a second opinion physician constituted the 

weight of the medical evidence and established that appellant did not sustain a cervical or left 

shoulder condition resulting in disability from work due to his employment injury.6

 

2 Docket No. 16-0718 (issued August 1, 2016).

3 Dr. Stagg advised, in August and October 2014 reports, that appellant’s work injury had aggravated a preexisting 

left shoulder and cervical spine condition. 

4 On November 19, 2014 Dr. Weaver opined that the June 27, 2014 assault aggravated appellant’s cervical disc 

disease. He also diagnosed depression and a resolving right shoulder strain and advised that appellant was unable to 

perform his usual work duties.

5 Appellant filed a claim for wage-loss compensation (Form CA-7) commencing August 9, 2014.

6 The hearing representative additionally noted that Dr. Bowen’s report was insufficient to establish a psychiatric 

condition; however, on August 25, 2015 OWCP had referred appellant to Dr. George Kalousek, a Board-certified 

psychiatrist, for a psychiatric evaluation. Based on Dr. Kalousek’s report OWCP expanded acceptance of his claim 

to include an adjustment disorder. 
3

Appellant appealed to the Board. By decision dated August 1, 2016, the Board set aside 

the February 1, 2016 decision.7 The Board found that a conflict in the medical opinion evidence 

existed between Dr. Stagg and Dr. Hansen regarding whether appellant sustained an aggravation 

of a preexisting condition due to his June 27, 2014 work injury and, if so, whether it resulted in 

disability from employment. The Board remanded the case for OWCP to refer him for an impartial 

medical examination.

OWCP referred appellant to Dr. I. Stephen Davis, a Board-certified orthopedic surgeon, 

for an impartial medical examination. In the accompanying statement of accepted facts (SOAF), 

it indicated that the accepted condition was a resolved right shoulder strain and included a notation 

that it had issued a weight of the evidence memorandum on February 2, 2015. OWCP requested 

that Dr. Davis provide the diagnosed conditions due to the work injury and assess appellant’s 

current disability from employment. 

In a report dated October 10, 2016, Dr. Davis opined that appellant sustained a right 

shoulder and elbow sprain due to the June 27, 2014 work injury, noting that cervical and left 

shoulder symptoms had not been “documented at the time of the assault.” He indicated that 

appellant initially complained of neck and left shoulder problems on July 25, 2014. Dr. Davis 

found no permanent left shoulder or cervical spine injury due to the June 27, 2014 employment 

injury. He subsequently advised that appellant’s left shoulder and cervical complaints were 

“temporarily aggravated as a result of this alleged assault.”

By decision dated October 25, 2016, OWCP denied expansion of the claim to include 

acceptance of left shoulder and cervical spine conditions.

8

Appellant requested a telephone hearing before an OWCP hearing representative. 

Following a preliminary review, in an April 27, 2017 decision, OWCP’s hearing representative 

vacated the October 25, 2016 decision. She noted that OWCP did not specifically outline the 

conflict to be resolved in its September 8, 2016 conflict statement or ask the referee physician to 

address the relevant issue of whether appellant sustained a left shoulder or cervical spine injury 

due to his work injury. The hearing representative also found that the SOAF did not include the 

accepted condition of adjustment disorder, provide the physical requirements of his work duties, 

or describe his work status. She noted that it also improperly referenced a weight of the evidence 

memorandum. The hearing representative found that Dr. Davis incorrectly determined that 

appellant initially complained of left shoulder problems to Dr. Stagg on July 25, 2014 instead of 

the correct date of June 30, 2014. She additionally determined that the report of Dr. Davis was 

inconsistent as he indicated both that appellant’s left shoulder and cervical complaints were 

temporarily aggravated by the work incident and also that the conditions resulted from a prior 

injury. The hearing representative remanded the case for OWCP to prepare a proper SOAF and 

obtain clarification from Dr. Davis regarding whether he sustained any aggravation, temporary or 

 

7 See supra note 2.

8 OWCP found, in its October 25, 2016 decision, that appellant had not established a work injury; however, as 

subsequently noted by OWCP’s hearing representative, the issue was claim expansion. 
4

permanent, of his left shoulder and cervical condition due to his work injury and, if so, whether it 

resulted in disability from employment beginning August 9, 2014.

On May 2, 2017 OWCP requested that Dr. Davis provide a supplemental report regarding 

whether appellant’s preexisting left shoulder and cervical spine conditions were aggravated by the 

June 27, 2014 work injury and, if so, whether he was disabled from work due to the aggravation 

as of August 9, 2014. It provided Dr. Davis with a May 2, 2017 SOAF that was identical with the 

prior SOAF provided on September 8, 2016. 

In a June 15, 2017 supplemental report, Dr. Davis noted that appellant complained of pain 

in his right shoulder and elbow at the time of injury and “neck and left shoulder pain as documented 

shortly thereafter.” He advised that there was no new evidence that altered his original opinion. 

Dr. Davis opined that the objective evidence demonstrated no worsening of appellant’s preexisting 

left shoulder and cervical condition due to the work injury and concluded, in agreement with

Dr. Hansen, that his left shoulder and cervical symptoms were unrelated to the June 27, 2014 

employment injury.

By decision dated June 22, 2017, OWCP denied expansion of the acceptance of appellant’s 

claim to include a cervical or left shoulder condition.9 It found that the reports from Dr. Davis 

constituted the special weight of the evidence and established that appellant’s preexisting left 

shoulder and cervical conditions were not caused or aggravated by his employment injury.

On August 15, 2017 appellant requested reconsideration. He asserted that the issue was 

whether he sustained a temporary aggravation of a preexisting condition resulting from a 2006 

motor vehicle accident rather than whether the accepted June 27, 2014 employment injury caused 

his preexisting condition. Appellant challenged Dr. Davis’ reliance on Dr. Hansen’s report as he 

was no longer a referral physician. He maintained that Dr. Davis’ October 10, 2016 report was 

inconsistent and based on an inaccurate factual background. Appellant contended that OWCP 

failed to comply with the instructions of OWCP’s hearing representative, noting that it provided 

him with the same SOAF and almost the same questions as it did before his original report. He 

also asserted that Dr. Davis indicated that there was no new information that would change his 

opinion and thus provided no real clarification of his report or resolution of its inconsistencies. 

Appellant questioned why OWCP failed to notify Dr. Davis that he had complained of neck and 

shoulder symptoms when he sought treatment on June 30, 2014 and not on July 25, 2014 as

Dr. Davis found in his initial report. 

By decision dated November 6, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of his claim under 5 U.S.C. § 8128(a). It found that he had not raised 

a relevant legal argument or submitted new and relevant evidence sufficient to warrant reopening 

his case for further merit review. 

On appeal appellant enclosed a copy of his August 2017 request for reconsideration.

 

9 OWCP indicated that it was denying expansion of the acceptance of the claim to include a cervical disc and 

resolving right rather than left shoulder strain; however, this appears to be a typographical error.
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.10

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.11

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.12 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.13 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.14

ANALYSIS

By decision dated June 22, 2017, OWCP denied expansion of the acceptance of appellant’s 

claim to include an aggravation of a cervical disc or left shoulder strain. On August 15, 2017 it 

received his request for reconsideration. Appellant’s request was timely filed as it was received 

within one year of OWCP’s merit decision.15

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

law or submit relevant and pertinent new evidence not previously considered. He did, however, 

raise a new and relevant legal argument. The Board thus finds that OWCP improperly denied 

appellant’s request for reconsideration of the merits of his claim. 

On reconsideration appellant contended that the issue was whether he sustained a 

temporary aggravation of a preexisting condition due to his work injury instead of the etiology of 

the preexisting condition. OWCP, however, properly requested that Dr. Davis addressed whether 

the June 27, 2014 employment injury aggravated his preexisting left shoulder and cervical spine 

conditions.

 

10 5 U.S.C. § 8128(a).

11 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

12 Id. at § 10.607(a).

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

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

15 See supra note 12.
6

Appellant further argued that Dr. Davis’ opinion was based on an inaccurate factual 

background, noting in particular that OWCP failed to comply with the instructions of the hearing 

representative to update the SOAF. OWCP’s hearing representative instructed OWCP to request 

a supplemental report from Dr. Davis and provide him with a SOAF that included all accepted 

conditions, described his work duties, excluded reference to a weight of the evidence 

memorandum, and provided his work status. OWCP, however, did not update the SOAF prior to 

requesting that Dr. Davis clarify his opinion. 

As appellant has advanced a new and relevant legal argument not previously considered 

by OWCP, he is entitled to a review of the merits of his claim under section 10.606(b)(3) of 

OWCP’s regulations.16 The case will be remanded to OWCP to conduct an appropriate merit 

review of the claim. Following this and such other development as deemed necessary, it shall 

issue an appropriate merit decision on the claim.

CONCLUSION

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

the merits of his claim under 5 U.S.C. § 8128(a).

 

16 See L.K., Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued July 6, 2016).
7

ORDER

IT IS HEREBY ORDERED THAT the November 6, 2017 decision of the Office of 

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

consistent with this opinion of the Board.

Issued: August 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board