United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fowler, OH, Employer

__________________________________________

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Docket No. 18-0367

Issued: September 23, 2019

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

JANICE B. ASKIN, Judge

JURISDICTION

On December 12, 2017 appellant, through counsel, filed a timely appeal from a 

November 27, 2017 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 7, 2016, 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 case.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 Board notes that following the November 27, 2017 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

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 July 25, 2012 appellant, then a 46-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on July 23, 2012 she tripped and fell while in the performance of duty, 

injuring her neck, right wrist/hand, back, and left leg. She stopped work on July 24, 2012. In 

December 2012, OWCP initially accepted the claim for sprain of the right wrist and hand.

4

 It 

subsequently expanded the acceptance of appellant’s claim to include cervical, thoracic, and 

lumbar sprains; and a herniated disc at C4-5. 

By decision dated September 30, 2015, OWCP terminated appellant’s medical benefits 

with respect to her previously accepted right wrist, thoracic, and lumbar sprains. Appellant

remained eligible for conservative medical treatment with respect to her accepted cervical 

condition, as well as continuing compensation benefits related to her July 23, 2012 employment 

injury. OWCP based its determination on the February 24, 2014 opinion of Dr. Victoria M. Langa, 

a Board-certified orthopedic surgeon and impartial medical examiner.5

Appellant, through counsel, timely requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on July 5, 2016. During the hearing 

counsel argued that appellant’s lumbar condition had not resolved, and the claim should have been 

expanded to include L4-5 radiculitis.6 By decision dated September 7, 2016, OWCP’s hearing 

representative affirmed the September 30, 2015 decision finding that the impartial medical 

examiner’s opinion represented the special weight of the medical evidence.

On August 30, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

September 7, 2016 decision. In support of the request appellant submitted an August 21, 2017

report from her treating physician, Dr. Donich, regarding her ongoing cervical complaints and the 

need for surgery at C6-7. 

By decision dated November 21, 2017, OWCP expanded acceptance of the claim to include 

aggravation of cervical spinal stenosis. It also retroactively authorized a February 5, 2017 cervical 

spine surgical procedure.7

 

4 OWCP paid wage-loss compensation for temporary total disability beginning September 8, 2012, and placed 

appellant on the periodic compensation rolls effective January 13, 2013.

5 OWCP declared a conflict in medical opinion between appellant’s physician, Dr. Dane J. Donich, a Boardcertified neurosurgeon, and Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon and second opinion 

examiner. 

6 The impartial medical examiner’s diagnoses included status post thoracolumbar sprain/strain and underlying agerelated degenerative disc/joint disease. 

7 OWCP based its determination on the November 15, 2017 opinion of Dr. Timothy J. Nice, a Board-certified 

orthopedic surgeon and impartial medical examiner, who agreed with appellant’s physician, Dr. Donich, regarding 

the need for cervical surgery. 
3

By decision dated November 27, 2017, OWCP denied appellant’s August 30, 2017 request 

for reconsideration finding that Dr. Donich’s August 21, 2017 opinion regarding appellant’s 

cervical spine was not relevant to the September 30, 2015 and September 7, 2016 decisions, which 

terminated benefits with respect to appellant’s right wrist sprain, thoracic sprain, and lumbar 

sprain. Consequently, OWCP found that the evidence presented was insufficient to warrant merit 

review of the September 7, 2016 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.8

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.9

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

OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, 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

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).

The August 30, 2017 request for reconsideration did not show that OWCP erroneously 

applied or interpreted a specific point of law or advance a relevant legal argument not previously 

considered by OWCP. Accordingly, appellant has not established a basis for further merit review 

under the first and second above-noted requirements of 20 C.F.R. § 10.606(b)(3).

 

8 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

9 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

10 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the received date in the integrated Federal Employees’ Compensation 

System. Chapter 2.1602.4b.

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).
4

The underlying issue on reconsideration was whether OWCP properly terminated benefits 

with respect to appellant’s accepted right wrist, thoracic, and lumbar sprains. Counsel did not 

submit evidence or argument with respect to the termination of benefits regarding the above-noted 

conditions. Although Dr. Donich’s August 21, 2017 report was not part of the record when OWCP 

last addressed the termination issue on September 7, 2016, this evidence is not “relevant and 

pertinent” to the issue on reconsideration. His opinion concerned the need for additional cervical 

surgery, and did not specifically address appellant’s right wrist, thoracic, and lumbar sprains. As 

such, Dr. Donich’s August 21, 2017 report is insufficient to warrant further merit review based on 

the third requirement under section 10.606(b)(3). 

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

On appeal counsel argues that there was an unresolved conflict in medical evidence, and 

therefore, OWCP had not met its burden of proof to terminate benefits. As previously noted, the 

Board does not have jurisdiction over the September 7, 2016 merit decision. 

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 November 27, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board