United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Tama, IA, Employer

__________________________________________

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Docket No. 18-0479

Issued: September 17, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 9, 2018 appellant, through counsel, filed a timely appeal from a September 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 February 21, 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 record provided the Board includes evidence received after OWCP issued its September 6, 2017 decision. 

The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
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 March 3, 2014 appellant, then a 52-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on February 28, 2014, she slipped and fell on snow-covered ice while 

in the performance of duty. She claimed injuries to her left shoulder, collar bone, lower back, and 

left leg. Appellant stopped work on February 28, 2014, and returned to work in a limited-duty 

capacity on March 3, 2014. OWCP initially accepted her claim for left rotator cuff tear.4

On May 12, 2014 appellant underwent authorized left shoulder arthroscopy with rotator 

cuff repair and subacromial decompression. She stopped work and received wage-loss 

compensation for total disability. On June 20, 2014 appellant returned to limited duty. She 

stopped work again on February 23, 2015 after undergoing left shoulder manipulation under 

anesthesia and returned to part-time limited duty on March 2, 2015. On August 31, 2015 appellant 

underwent a second authorized left shoulder arthroscopy with revision rotator cuff repair. She 

stopped work and returned to part-time limited duty on September 16, 2015.

Appellant continued to receive medical treatment and work with restrictions.

In a January 19, 2016 report, Dr. Kyle D. Switzer, an orthopedic surgeon, reviewed 

appellant’s history and noted that appellant was approximately four and a half months postsurgery. 

Upon physical examination of appellant’s left shoulder, he observed external rotation to only 15 

degrees and 4/5 strength to forward flexion and external rotation. Dr. Switzer diagnosed right 

wrist arthralgia, right carpal tunnel syndrome, complete rupture of the rotator cuff, and acquired 

tenosynovitis. In a work status note, he reported that appellant continue to work part-time limited 

duty with restrictions of overhead lifting up to 5 pounds and lifting up to 25 pounds to the waist.

On February 4, 2016 appellant underwent several diagnostic examinations. A cervical 

spine x-ray examination showed multilevel degenerative disc disease, moderate at C6-7, and 

severe facet arthropathy on the right at C5-6. A cervical spine magnetic resonance imaging (MRI) 

scan revealed cervical radiculopathy and degenerative changes with disc narrowing, greatest at 

C6-7. 

In a February 5, 2016 work excuse note, Dr. Ross Huffman, a Board-certified family 

practitioner, requested that appellant be excused from work on February 6, 2016. 

Dr. Jerry Wille, a Board-certified family practitioner examined appellant and noted on 

February 4 and 8, 2016 that she complained of severe neck pain that had gotten so bad over the 

 

4 The present claim was assigned OWCP File No. xxxxxx462. On February 26, 2013 appellant was injured in 

separate work-related slip and fall, which OWCP accepted for cervical strain and temporary aggravation of 

lumbosacral degenerative disc disease, assigned OWCP File No. xxxxxx683. She also has an accepted occupational 

disease claim (Form CA-2) for right carpal tunnel syndrome and right trigger thumb, which arose on or about June 25, 

2015, under OWCP File No. xxxxxx848. The above-noted claims have been administratively combined with OWCP 

File No. xxxxxx683 designated the master file. 
3

weekend after therapy that she went to the emergency room. Dr. Wille provided examination 

findings and diagnosed cervical radiculopathy. 

On February 25, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for 

the period February 6 to 19, 2016. In the attached Form CA-7a (time analysis form), appellant 

claimed eight hours of leave without pay (LWOP) on February 6, 2016 and indicated: “Called in. 

Too much pain from physical therapy [the] night before.”

By letter dated March 1, 2016, OWCP requested that appellant submit additional medical 

evidence in order to establish her disability claim. Appellant was afforded 30 days to submit the 

requested information. 

OWCP received several reports from 2015 regarding appellant’s medical treatment for her 

left shoulder and neck following the February 28, 2014 employment injury.

By decision dated April 19, 2016, OWCP denied appellant’s claim for wage-loss 

compensation for February 6, 2016.5 It found that the medical evidence of record was insufficient 

to establish that she was totally disabled from work on that date due to her February 28, 2014 

employment injury. 

On April 29, 2016 appellant, through counsel, requested a telephone hearing. 

On September 14, 2016 OWCP expanded appellant’s claim to include aggravation of 

cervical disc degeneration at C5-6, C6-7, and C7-T1.

6

A telephone hearing was held on December 13, 2016. Appellant testified that she worked 

half-day on February 5, 2016 and went to the emergency room late at night because of worsening 

neck pain. She noted that she was discharged from the hospital on February 6, 2016 and went 

straight home. 

Post-hearing, OWCP received a February 5, 2016 emergency room record. It indicated 

that appellant was admitted in the emergency room at 10:55 p.m. and treated by Dr. Huffman. 

Dr. Huffman examined appellant’s neck and observed spontaneous range of motion and tenderness 

to the left paracervical musculature with palpation and muscle spasms. He diagnosed cervical 

muscle strain. Appellant was discharged on February 6, 2016 at 12:41 a.m.

By decision dated February 21, 2017, an OWCP hearing representative affirmed the 

April 19, 2016 denial decision. He found that the medical evidence of record was insufficient to 

establish that appellant was unable to work on February 6, 2016 due to her accepted conditions. 

On March 8, 2017 appellant requested reconsideration. In a handwritten February 27, 2017 

statement, she explained that before being released that same morning of February 6, 2016 from 

the emergency room she was instructed to go home, rest, and not drive with medication. Appellant

 

5 OWCP paid wage-loss compensation for the period February 8 through 19, 2016. 

6 OWCP expanded appellant’s claim based on the June 21, 2016 second opinion report of Dr. Richard W. Naylor, 

a Board-certified orthopedic surgeon, who determined that appellant sustained an exacerbation of a neck condition on 

February 28, 2014. 
4

indicated that she was including complete medical documentation from that night of February 5, 

2016 until her early morning release on February 6, 2016. She noted that she had been prescribed 

Fentanyl and Flexeril in the emergency room, and that the treatment notes indicated that she had 

been “Educated ... on sedative.” Appellant interpreted this to mean that she should not drive while 

medicated.

Appellant resubmitted Dr. Huffman’s February 5, 2016 emergency room records. She also 

continued to provide medical reports for her current treatment of her neck and shoulder symptoms. 

By decision dated September 6, 2017, OWCP denied reconsideration of the merits of 

appellant’s claim. It specifically found that the February 5, 2016 emergency room records were 

previously received on December 19, 2016 and considered by OWCP in its February 21, 2017 

decision. 

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 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 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.8 

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.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

ANALYSIS

The Board finds that OWCP properly declined to reopen appellant’s claim for further 

consideration of the merits, under 5 U.S.C. § 8128(a). 

 

7 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

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).
5

Appellant has not shown that OWCP erroneously applied or interpreted a specific point of 

law; advanced a relevant legal argument not previously considered by OWCP; or submitted 

relevant and pertinent new evidence not previously considered by OWCP. 

In its February 21, 2017 merit decision, OWCP affirmed the April 19, 2016 decision, 

which denied appellant’s disability claim due to insufficient medical evidence to establish that she

was unable to work on February 6, 2016 due to her February 28, 2014 employment injury. 

Appellant subsequently requested reconsideration on March 8, 2017 and submitted medical 

evidence.

In support of her reconsideration request, appellant resubmitted Dr. Huffman’s February 5, 

2016 emergency room records.

12

 As OWCP’s hearing representative correctly noted in her 

February 21, 2017 decision, those records do not support that appellant could not return to work 

for her regular hours on February 6, 2016. The Board has held that the submission of evidence 

which repeats or duplicates evidence already in the case record does not constitute a basis for 

reopening a case.13

Appellant also submitted a handwritten statement explaining that on February 5, 2016 she 

went to the emergency room due to worsening neck pain and was not discharged from the hospital 

until the morning of February 6, 2016. She related that she was instructed to go home and rest. 

Appellant also claimed that she was clearly instructed “not to drive with medications.” She noted 

that she had been prescribed Fentanyl and Flexeril in the emergency room, and that the treatment 

notes indicated that she had been “Educated ... on sedative.” Appellant interpreted this to mean 

that she should not drive while medicated. However, her statement does not advance a new legal 

argument, nor allege that OWCP erroneously applied or interpreted a specific point of law. 

Accordingly, the Board finds that appellant did not provide OWCP with any evidence which has 

met the requirements of 20 C.F.R. § 10.606(b)(3) sufficient to require further merit review of her 

claim.

On appeal counsel alleges that OWCP failed to adjudicate the claim in accordance with the 

standard of causation and failed to give due deference to the attending physician’s findings. As 

explained above, however, the Board does not have jurisdiction to review the merits of the denial 

of appellant’s wage-loss compensation claim. The only decision properly before the Board on this 

appeal is the September 6, 2017 nonmerit decision, which denied appellant’s request for further 

merit review.

The Board finds, therefore, that appellant has not met any of the regulatory requirements 

and OWCP properly declined her request for reconsideration of the merits of her claim under 

 

12 The February 5, 2016 emergency room records were initially associated with OWCP File No. xxxxxx683. 

However, appellant submitted another copy on May 15, 2017, which was properly associated with OWCP File No. 

xxxxxx462.

13 E.M., Docket No. 09-0039 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).
6

5 U.S.C. § 8128(a).14 Thus, OWCP did not abuse its discretion in refusing to reopen her claim for 

a review on the merits. 

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 September 6, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 17, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

14 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006).