United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Kennebunk, ME, Employer

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Docket No. 19-1348

Issued: December 2, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 4, 2019 appellant filed a timely appeal from a December 14, 2018 nonmerit 

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

elapsed from OWCP’s last merit decision, dated September 20, 2018, 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 this case.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).

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 14, 2018 decision, OWCP received additional evidence. 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

FACTUAL HISTORY

On May 15, 2018 appellant, then a 52-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on May 11, 2018 she sustained strained back and neck 

muscles, bruising to the right side from the knee to the buttocks, and post-traumatic stress disorder 

(PTSD) due to a motor vehicle accident while in the performance of duty. On the reverse side of 

the claim form the employing establishment indicated that appellant stopped work on May 12, 

2018, that the injury occurred in the performance of duty, and that appellant initially sought 

medical treatment on May 11, 2018.

Appellant submitted a May 11, 2018 employing establishment accident report concerning 

the May 11, 2018 motor vehicle accident and appellant’s pay rate information.

On May 11, 2018 appellant underwent diagnostic testing. A chest x-ray examination 

showed no right rib fracture or pneumothorax. A lumbar spine x-ray revealed normal alignment 

and no evidence of acute fracture.

In a development letter dated May 23 2018, OWCP informed appellant of the evidence 

needed to support her traumatic injury claim. It afforded her 30 days to submit the requested 

information.

OWCP received a police accident information form dated May 11, 2018, a witness 

statement dated May 15, 2018, and a state workers’ compensation medical form dated May 11, 

2018 by a provider whose signature is illegible.

Appellant submitted emergency room hospital records dated May 11, 2018, which 

indicated that she was treated by Dr. Michael Schmitz, an osteopath specializing in emergency 

medicine, for complaints of back and right side pain after a motor vehicle accident. Dr. Schmitz

provided examination findings, including diagnostic test results, and diagnosed acute neck strain 

and lumbar strain.

Appellant also received medical treatment from Dr. Marc G. Malon, a chiropractor. In a 

May 17, 2018 progress note, Dr. Malon recounted appellant’s complaints of mid and lower back 

and neck pain following a May 11, 2018 motor vehicle accident. Upon examination of appellant’s 

cervical, thoracic, and lumbosacral spine, he noted significant tenderness upon palpation to the 

mid-to-lower cervical and mid-thoracic spine. Dr. Malon reported an initial impression of 

traumatic cervical, thoracic, and lumbosacral sprain/strain with muscle spasm. In a May 21, 2018 

treatment note, he authorized appellant to work with restrictions of no lifting over 20 pounds, 

limited bending, and no working above shoulder height. In a May 29, 2018 note, Dr. Malon

indicated that appellant’s “musculoligamentous injuries to neck and back” were improving.

In a May 29, 2018 treatment note and state workers’ compensation medical form report,

Dr. Nicholas Handanos, a Board-certified internist, related that he conducted a follow-up 

examination of appellant after a motor vehicle accident. He noted examination findings of 

worsening low back pain and improving neck pain. Straight leg raise testing was negative. 

Dr. Handanos diagnosed acute bilateral low back pain without sciatica, acute neck pain, and 
3

anxiety disorder. He checked a box marked “yes” indicating that appellant’s problem was work

related.

On June 7, 2018 appellant responded to OWCP’s May 23, 2018 development letter. She 

indicated that the initial effects of the injury were muscle strain and pain and noted that she did 

not have a new injury since the initial accident.

By decision dated June 28, 2018, OWCP accepted that appellant was involved in an 

employment-related motor vehicle accident on May 11, 2018 and was diagnosed with low back 

strain, neck strain, and anxiety disorder. However, it denied appellant’s claim, finding that the 

medical evidence was insufficient to establish causal relationship between the accepted 

employment incident and her diagnosed medical conditions.

On August 24, 2018 appellant requested reconsideration.

Appellant continued to receive treatment from Dr. Malon. In a work status note dated 

June 22, 2018, Dr. Malon authorized appellant to return to work, effective June 25, 2018. In 

chiropractic treatment notes dated May 21 to July 30, 2018, he provided examination findings for 

appellant’s neck and back and explained the therapy treatments that he provided. Dr. Malon

diagnosed cervical strain and radiculopathy, thoracic spine strain, lumbar strain, sacroiliac joint 

strain, muscle spasm, cervical segmental dysfunction and somatic dysfunction, thoracic segmental 

dysfunction, lumbar posterior joint dysfunction, and sacral segment and somatic dysfunction.

In an August 2, 2018 letter, Dr. Handanos opined that appellant was in a motor vehicle 

accident that caused her back, neck, and shoulder pain and anxiety, which should all be covered 

under workers’ compensation. He noted that he treated appellant on May 29, 2018 and provided 

a detailed description of his findings. Dr. Handanos indicated that his diagnosis, clinical course 

of treatment, and opinion supported by medical explanation was outlined in the office visit note.

By decision dated September 20, 2018, OWCP denied modification of the June 28, 2018 

decision.

On October 25, 2018 appellant requested reconsideration.

Appellant submitted a September 28, 2018 letter by Dr. Handanos. Dr. Handanos

recounted that appellant was involved in a work-related motor vehicle accident on May 11, 2018 

and sustained strains to her neck, back, and shoulder. He indicated that, as a result of her strains, 

she experienced increased pain and anxiety and sought treatment from Dr. Malon for her pain and 

from Rudolph Skowronski, a licensed clinical social worker. Dr. Malon noted that, although 

appellant was previously diagnosed with anxiety, it was well controlled prior to her accident. 

Dr. Handanos opined that appellant’s increased anxiety and pain were directly related to the strains 

that she sustained during her accident.

OWCP received additional chiropractic treatment notes by Dr. Malon dated August 13 to 

October 16, 2018. Dr. Malon recounted appellant’s complaints of discomfort in her neck, upper 

back, and right hip. He provided examination findings and reported diagnoses of cervical strain 

and radiculopathy, thoracic spine strain, lumbar strain, sacroiliac joint strain, muscle spasm, 

cervical segmental dysfunction and somatic dysfunction, thoracic segmental dysfunction, lumbar 
4

posterior joint dysfunction, and sacral segment and somatic dysfunction. Dr. Malon noted an 

overall assessment of daily improvement as appellant reported less discomfort and showed 

improved function.

By decision dated December 14, 2018, OWCP denied appellant’s request for 

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

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.3 

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.4 

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.5 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.6 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.7

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 submit any statement along with her October 25, 2018 reconsideration 

request explaining why she disagreed with the September 20, 2018 merit decision. She has not 

shown that OWCP erroneously applied or interpreted a specific point of law, nor did she advance 

a relevant legal argument not previously considered. Thus, the Board finds that appellant is not 

 

3 5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

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

4 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).

5 20 C.F.R. § 10.607(a). Timeliness is determined by the document “received date” as recorded in the Integrated 

Federal Employees’ Compensation System (iFECS). Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (February 2016).

6

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

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
5

entitled to a review of the merits of her claim based on the first and second above-noted 

requirements under 20 C.F.R. § 10.606(b)(3).

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered.

In support of her reconsideration request, appellant submitted a September 28, 2018 letter 

by Dr. Handanos, who opined that appellant sustained strains to her neck, back, and shoulder as a 

result of a May 11, 2018 motor vehicle accident. Dr. Handanos further explained that because of 

her strains, appellant experienced increased pain and anxiety. He noted that, although appellant 

was previously diagnosed with anxiety, it was well controlled prior to her accident. Dr. Handanos

opined that appellant’s increased anxiety and pain were directly related to the strains that she 

sustained during her accident. The Board finds, however, that this letter is substantially similar to 

his August 2, 2018 letter, which was previously reviewed and considered by OWCP. 

Dr. Handanos did not provide any pertinent new or relevant evidence explaining the mechanism 

of injury regarding how the May 11, 2018 employment incident caused or contributed to 

appellant’s medical conditions. The Board has held that the submission of evidence which 

duplicates or is substantially similar to evidence already in the case record does not constitute a 

basis for reopening a case.8

In treatment notes dated May 21 to July 30, 2018, Dr. Malon, a chiropractor, noted 

appellant’s diagnosed conditions of cervical strain and radiculopathy, thoracic spine strain, lumbar 

strain, sacroiliac joint strain, muscle spasm, cervical segmental dysfunction and somatic 

dysfunction, thoracic segmental dysfunction, lumbar posterior joint dysfunction, and sacral 

segment and somatic dysfunction. He provided examination findings and indicated that appellant 

showed improved function. The Board finds that, because Dr. Malon has not provided a diagnosis 

of spinal subluxation based on x-ray examinations, he is not considered a physician under FECA.9 

Accordingly, appellant is not entitled to a review of the merits of her claim based on the third 

above-noted requirement under 20 C.F.R. § 10.606(b)(3). 

As appellant’s request for reconsideration did not meet any of the three requirements 

enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied merit 

review pursuant to 20 C.F.R. § 10.608.

10

 

8 S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59

ECAB 141 (2007).

9 The term physician includes chiropractors only to the extent that their reimbursable services are limited to 

treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 

5 U.S.C. § 8101(2).

10 See F.P., Docket No. 19-0177 (issued June 19, 2019); D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., 

Docket No. 09-2032 (issued August 3, 2010); Susan A. Filkins, 57 ECAB 630 (2006).
6

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 December 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 2, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board