United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Ana, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0225

Issued: July 23, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 8, 2018 appellant filed a timely appeal from a June 27, 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 1, 2017, 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.

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).

FACTUAL HISTORY

On May 8, 2015 appellant, then a 55-year-old mail processing clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on March 13, 2015 he sustained a right lumbar injury with right-

 

1 5 U.S.C. § 8101 et seq.
2

sided radiculopathy when sweeping, loading, and lifting mail while in the performance of duty. 

He did not stop work. 

In a report dated May 8, 2015, Dr. Gary Linnemann, a treating Board-certified family 

practitioner, diagnosed a lumbar strain. He restricted appellant to limited-duty work.

2

 Appellant 

accepted a modified-duty position on May 12, 2015.

By decision dated June 23, 2015, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between appellant’s diagnosed 

conditions and the accepted March 13, 2015 employment incident. 

On November 13, 2015 appellant requested reconsideration and submitted additional 

medical evidence.

In a report dated September 29, 2015, Dr. Basimah Khulusi, a treating Board-certified 

physiatrist, noted appellant’s history of a 2010 back injury3and the March 13, 2015 employment 

incident. She diagnosed lumbar radiculopathies, lumbar spondylolisthesis, and lumbar spinal 

stenosis causally related to the March 13, 2015 employment incident. Dr. Khulusi explained that 

twisting while processing mail had created torque forces on disc spaces already under excessive 

loading forces, causing annular disc protrusions and spinal stenosis. She submitted periodic 

reports through February 8, 2016 restricting appellant to limited-duty work.

By decision dated February 11, 2016, OWCP vacated its prior decision, as the evidence 

submitted was sufficient to warrant modification. By separate decision dated February 11, 2016, 

it accepted the claim for a lumbar strain. OWCP paid his compensation commencing August 3, 

2015 for intermittent wage loss to attend medical appointments and physical therapy treatments. 

On February 29, 2016 appellant requested reconsideration. In support of his request, he 

submitted a report dated February 18, 2016 by Dr. Khulusi. She opined that the March 13, 2015 

employment incident had increased the severity of appellant’s preexisting lumbar disc protrusions, 

causing a disc extrusion at L5-S1 and right-sided lumbar radiculopathy.

On May 20, 2016 OWCP obtained a second opinion regarding the nature and extent of the 

accepted lumbar injuries from Dr. Aubrey Swartz, a Board-certified orthopedic surgeon.

Dr. Swartz reviewed the medical record and statement of accepted facts. On examination, he found 

no lumbar tenderness on palpation, negative straight leg raising tests bilaterally, and a normal 

neurologic examination of the lower extremities. Dr. Swartz opined that the March 13, 2015 

employment incident had caused a lumbar strain with temporary aggravation of preexisting 

 

2 An August 10, 2015 lumbar magnetic resonance imaging (MRI) scan demonstrated disc protrusions at L2-3, L3-

4, and L4-5 causing moderate-to-severe stenosis at each level. September 11, 2015 electrodiagnostic studies of the 

lower extremities demonstrated right L4 chronic radiculopathy, bilateral L5 subacute radiculopathy with ongoing 

denervation, and bilateral S1 subacute radiculopathy. 

3 Appellant has a prior claim involving an August 2, 2010 injury. OWCP assigned that claim File No. xxxxxx493 

and accepted it for lumbar strain. Appellant’s claims have not been administratively combined. An October 27, 2011 

lumbar MRI scan demonstrated mild central canal stenosis with disc protrusions at L1-2 and L2-3, and mild left L5-

S1 foraminal stenosis.
3

multilevel spinal conditions that had ceased no later than May 8, 2015. He explained that spinal 

stenosis was an idiopathic process unrelated to trauma or acute injury. 

By decision dated June 7, 2016, OWCP vacated its February 11, 2016 reconsideration 

decision, finding that the evidence submitted on reconsideration was sufficient to modify the prior 

decision. By separate decision dated June 7, 2016, it expanded its acceptance of the claim to 

include a temporary aggravation of preexisting disc herniations/protrusions at L4-5 and L5-S1, 

resolved as of May 8, 2015. 

On September 6, 2016 appellant requested reconsideration. In support of his request, he

provided an August 18, 2016 report by Dr. Khulusi. Dr. Khulusi argued that Dr. Swartz’s opinion 

was erroneous as he failed to recognize that appellant’s traumatic injury had resulted in spinal 

stenosis. She contended that the accepted lumbar strain had caused soft tissue swelling, 

compromising the nerve roots and spinal canal, which resulted in lumbar radiculopathy. 

Dr. Khulusi also asserted that the aggravation of preexisting degenerative disc disease should be 

considered permanent. 

By decision dated December 1, 2016, OWCP denied modification. It found that

Dr. Khulusi’s opinion was not sufficiently reasoned to outweigh Dr. Swartz’s opinion. 

On January 3, 2017 appellant requested reconsideration. He submitted reports from

Dr. Khulusi dated September 6 and December 7, 2016 diagnosing permanent aggravation of disc 

protrusions/herniations, and permanent aggravation of spinal stenosis. In a narrative report dated 

December 22, 2016, Dr. Khulusi contended that there was a conflict of medical opinion between 

herself and Dr. Swartz regarding the nature and extent of the employment injuries.

By decision dated February 23, 2017, OWCP denied modification as the additional 

evidence submitted was insufficient to outweigh Dr. Swartz’s opinion.

On March 20, 2017 appellant requested reconsideration. He submitted a March 9, 2017 

report by Dr. Khulusi contending that her experience as a physiatrist was more germane to 

appellant’s case than Dr. Swartz’s training as an orthopedic surgeon. In an April 5, 2017 report,

Dr. Khulusi reiterated her previous diagnoses and maintained appellant on modified duty. 

By decision dated May 8, 2017, OWCP denied modification of its prior decision.

On June 5, 2017 appellant requested reconsideration. In support of his request, he provided

a May 25, 2017 report from Dr. Khulusi, requesting that OWCP expand its acceptance of the claim 

to include lumbar radiculopathies, permanent aggravation of disc protrusions/herniations, and 

permanent aggravation of spinal stenosis. Dr. Khulusi again contended that there was a conflict 

of medical opinion between Dr. Swartz and herself regarding the nature and extent of the 

employment-related conditions. In August 2, 2017 reports, she repeated previous diagnoses and 

continued to restrict appellant to modified-duty work.

By decision dated September 1, 2017, OWCP denied modification of its prior decision.

On March 29, 2018 appellant requested reconsideration. In support of his request, he

submitted a March 22, 2018 report from Dr. Khulusi, reiterating her August 18, 2016 opinion that 
4

a traumatic lumbar injury could cause spinal stenosis. Dr. Khulusi repeated her disagreement with

Dr. Swartz’s opinion that a spinal injury could not cause spinal stenosis. She enclosed medical 

literature on spinal stenosis which indicated that spinal injuries could cause swelling and pressure 

on the spinal cord and nerve roots. 

By decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration, 

finding that the evidence submitted was insufficient to warrant review of its September 1, 2017

decision. It found that his request for reconsideration did not raise new, substantial legal questions 

nor include new, relevant evidence. OWCP further found that Dr. Khulusi’s March 22, 2018 

report merely repeated her prior arguments and opinions and was therefore cumulative in nature. 

It also found that the medical literature submitted was irrelevant or immaterial to the claim. 

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP’s

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4

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

decision for which review is sought.5 If it 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 his claim pursuant to 5 U.S.C. § 8128(a). 

In his application for reconsideration, appellant did not show that OWCP erroneously 

applied or interpreted a specific point of law, and he did not advance a new and relevant legal 

argument not previously considered. The underlying issue on appeal is whether the medical 

evidence of record establishes that OWCP should expand its acceptance of the claim to include 

lumbar radiculopathies, permanent aggravation of disc protrusions/herniations, and permanent 

aggravation of spinal stenosis. Appellant submitted Dr. Khulusi’s March 22, 2018 report

reiterating her August 18, 2016 opinion. The Board has held that the submission of evidence or 

argument which repeats or duplicates evidence or argument already in the case record does not 

 

4 20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); 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).

6

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

7

Id. at § 10.608(b); H.H., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).
5

constitute a basis for reopening a case.8 Consequently, appellant is not entitled to a review of the 

merits of his claim based on the first and second above-noted requirements under section 

10.606(b)(3).

In support of his reconsideration request, appellant’s physician, Dr. Khulusi submitted 

medical literature on spinal stenosis. The Board has held that medical literature from publications

is of no evidentiary value in establishing causal relationship between a claimed condition and 

employment factors because such materials are of general application and are not determinative of 

whether the specifically claimed condition is related to the particular employment factors alleged 

by the employee.9 

Appellant also failed to submit relevant and pertinent new evidence not previously 

considered by OWCP. Consequently, he is not entitled to a review of the merits of his claim based 

on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3). The Board, accordingly,

finds that pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10

On appeal, appellant contends that Dr. Khulusi’s March 22, 2018 letter had proven that

Dr. Swartz erred by opining that spinal stenosis could not be caused by an injury. This argument, 

however, pertains to the merits of the claim. As explained above, the Board lacks jurisdiction over 

the merits of this case.

CONCLUSION

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

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

 

8

J.B., Docket No. 18-1531 (issued April 11, 2019); see L.R., Docket No. 18-0400 (issued August 24, 2018); 

Candace A. Karkoff, 56 ECAB 622 (2005).

9 F.D., (S.D.), Docket No. 18-1528 (issued April 10, 2019); A.S., Docket No. 18-0376 (issued July 18, 2018); 

William C. Bush, 40 ECAB 1064, 1075 (1989).

10 J.B., supra note 8; M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for 

reconsideration does not meet at least one of the three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP 

will deny the application for reconsideration without reopening the case for a review on the merits).
6

ORDER

IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 23, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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