United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Boca Raton, FL, Employer

__________________________________________

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Docket No. 19-1320

Issued: January 17, 2020

Appearances: Case Submitted on the Record

Joanne Marie Wright, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 26, 2019 appellant, through her representative, filed a timely appeal from a

December 6, 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 November 29, 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 to review 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 appellant submitted additional evidence on appeal. 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 March 29, 2016 appellant, then a 30-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on March 2, 2016 her supervisor, D.Z., struck her on the left side of her 

eye/forehead with his wooden clipboard while he was talking to another carrier, as she bent down 

to pick up flats while in the performance of duty. She indicated that she sustained injury to her 

forehead, left eye, both knees, and the left side of her back. Appellant did not initially stop work.

OWCP accepted the claim for concussion with loss of consciousness, contusion to unspecified part 

of the head, and headache. 

In a May 20, 2016 report, Dr. David B. Ross, a Board-certified neurologist, noted that he 

was only authorized to evaluate and treat appellant for headaches. He indicated that appellant’s

headaches were not disabling and that appellant had no work restrictions. 

In a May 26, 2016 form report, Dr. Michael Mikolajczak, a Board-certified orthopedic 

surgeon, diagnosed lumbar strain and bilateral knee sprain, and noted appellant’s work restrictions. 

Between June 10 and August 5, 2016, appellant filed claims for wage-loss compensation 

(Form CA-7) for intermittent disability for the period May 7 to August 5, 2016. 

In a July 18, 2016 memorandum of interview conducted by the Office of Inspector General,

Dr. Mikolajczak explained that appellant had preexisting conditions involving her back and knees 

because she played basketball in college. He also indicated there were signs of symptom 

magnification, and that “he did not know why [appellant] is not working.”

By decision dated August 9, 2016, OWCP denied appellant’s claims for wage-loss 

compensation for intermittent disability for the period May 7 to August 5, 2016. It also found that,

while appellant alleged injury to both knees and her back as a result of the March 2, 2016 injury, 

the medical evidence of record did not support that allegation.

On August 1, 2017 appellant requested reconsideration. 

OWCP subsequently received additional evidence including a July 29, 2016 report from

Dr. Mikolajczak, who opined that appellant had a preexisting history of bilateral chondromalacia 

patella. Dr. Mikolajczak related that on March 2, 2016 appellant was bending down when she was 

hit with a clipboard, “fell backward onto a desk,” and complained of pain in the head, neck, and 

both knees. He indicated that magnetic resonance imaging (MRI) scans obtained on June 22, 2016 

revealed no acute disc herniation or neural element compression. Dr. Mikolajczak released 
3

appellant to light-duty work, with restrictions of no lifting over 10 pounds and no repetitive 

bending or twisting at the waist.

OWCP also received an August 29, 2016 report from Dr. Ross who indicated that he was 

following up for treatment of appellant’s headaches. Dr. Ross diagnosed chronic post-traumatic 

headache, not intractable, and sprain of ligaments of the cervical spine. 

In a November 29, 2017 decision, OWCP denied modification of the August 9, 2016 

decision. It noted that Dr. Mikolajczak based his opinion on a history of injury that appellant fell 

backward onto her desk, which was different from the initial description of the injury.

On November 26, 2018 appellant requested reconsideration. She described her injury and 

summarized the reports of Drs. Jones and Malpica. With her reconsideration request, appellant

provided a drawing illustrating how she was injured, as well as a photograph of a mail case.

OWCP received Form CA-17s dated July 12 and 13, 2018, from Dr. Danita Jones, a 

neurologist, who diagnosed fibromyalgia, chronic pain syndrome, and cervicalgia. Dr. Jones

indicated that appellant could work part time commencing July 13, 2019, with restrictions.

OWCP also received a March 2, 2016 report from Dr. Indira Malpica, a chiropractor. 

Dr. Malpica diagnosed lumbosacral radiculopathy, low back pain, degenerative disc disease in the

lumbar region, myalagia, segmental, and somatic dysfunction of lumbar region, cervicocranial 

syndrome, degenerative disc disease in the cervical region, cervicalgia, cervicogenic headaches, 

segmental and somatic dysfunction of the cervical region, thoracic spine pain, and segmental and 

somatic dysfunction of the thoracic region.

In a December 18, 2017 report, Dr. Jones noted that appellant had no evidence of cervical 

radiculopathies. She indicated that imaging revealed mild degenerative disease within the spine, 

which might be exacerbating her musculoskeletal pain. Dr. Jones noted that chronic pain 

syndrome and/or fibromyalgia might be playing a part in appellant’s symptoms.

By decision dated December 6, 2018, OWCP denied appellant’s request for reconsideration

of the merits of her claim pursuant to 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. It may review an award for or against payment 

of compensation at any time based on its own motion or on application.4

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence 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.5 If OWCP determines 

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-

1569 (issued December 9, 2008).
4

that at least one of these requirements is met, 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’s reconsideration request summarized the reports of Drs. Jones and Malpica. 

However, it did not show that OWCP erroneously applied or interpreted a specific point of law, 

and did not advance a new and relevant legal argument not previously considered.8 Consequently, 

appellant is not entitled to further review of the merits of her claim based on the first or second 

above-noted requirements under 20 C.F.R. § 10.606(b)(3).9

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

considered by OWCP under 20 C.F.R. § 10.606(b)(3). The drawings and photographs submitted 

with her reconsideration request were irrelevant, as the factual basis had already been established.

The underlying issues in this case were whether appellant had established intermittent disability 

during the period May 7 to August 5, 2016 due to her accepted conditions and whether she had 

met her burden of proof to expand the acceptance of her claim to include low back and bilateral 

knee conditions causally related to the accepted March 2, 2016 employment injury. These are 

medical issues which must be determined by rationalized medical evidence.10 The Board notes 

that the submission of evidence that does not address the particular issue involved does not 

constitute a basis for reopening a case.11

The Board also finds that the Form CA-17s and December 18, 2017 report from Dr. Jones

indicating that appellant could work part time commencing July 13, 2019, with restrictions were

irrelevant to the issues at hand because they did not address whether appellant was disabled from 

 

6

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

7

Id. at § 10.608(b). 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. Id. at Chapter 2.1602.4b.

8 20 C.F.R. § 10.606(b)(3)(i) and (ii); see also M.S., Docket No. 19-0291 (issued June 21, 2019).

9

Id.

10 See J.B., Docket No. 18-1531 (issued April 11, 2019); E.D., Docket No. 18-0138 (issued May 14, 2018); 

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11 M.C., Docket No. 18-1278 (issued March 7, 2019); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. 

Nixon-Steward, 52 ECAB 140 (2000).
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work during the claimed period May 7 to August 5, 2016, or whether appellant’s low back and 

bilateral knee conditions were causally related to the accepted employment injury.12

The report from Dr. Malpica while new, was also not relevant or pertinent to the underlying 

issues.13 Dr. Malpica did not diagnose a subluxation based upon x-ray evidence and therefore is 

not considered a physician under FECA.

14

 

Although evidence submitted on reconsideration need not carry appellant’s burden entirely 

to suffice for reconsideration, the new evidence must at least be relevant and pertinent to the issue 

upon which the claim was denied.15 While appellant submitted new evidence, it does not address 

the underlying medical issues. Therefore, she also failed to satisfy the third requirement under 20 

C.F.R. § 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.

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).

 

12 Id.

13 See L.H., Docket No. 16-0868 (issued September 12, 2016). 

14 R.P., Docket No. 19-0271 (issued July 24, 2019). Section 8101(2) of FECA provides as follows: (2) physician 

includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law. 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 and subject to regulation by the Secretary. See R.M.,

59 ECAB 690 (2008); Merton J. Sills, 39 ECAB 572 (1988).

15 R.R., Docket No. 18-1562 (issued February 22, 2019); A.A., Docket No. 18-0031 (issued April 5, 2018); K.B., 

Docket No. 18-1392 (issued January 15, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the December 6, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 17, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board