United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Newport Beach, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0753

Issued: January 17, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 26, 2018 appellant filed a timely appeal from a November 20, 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 February 16, 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 to review the merits of appellant’s case.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 20, 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 February 17, 2016 appellant, then a 52-year-old distribution clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed injuries to her neck and back due to factors 

of her federal employment including sitting, standing, walking on hard floors, straining her back 

as she removed mail from cases, jarring her back as she stamped, stapled, and hole-punched papers, 

bending, twisting, turning her neck and body in various directions, lifting, pushing, and carrying 

heavy mail. She did not state the date she first became aware of her injuries, but she first realized 

that her conditions were caused or aggravated by factors of her federal employment on 

October 30, 2015. Appellant stated that she had worked for 30 years as a clerk for 8 to 10 hours 

per day and 5 days per week. On the reverse of the claim form, a supervisor noted that appellant 

was currently working two hours per day due to orders from her physician.

In a letter dated February 19, 2016, the employing establishment controverted appellant’s 

claim. It noted that she had been working in a modified capacity since March 2, 1992 as a result 

of a prior work-related injury. The employing establishment challenged the current claim due to 

a lack of work-related causes, as appellant had been in an accepted modified job per her previous 

OWCP claims since 1992, which did not include working over eight hours or outside of her 

assigned work restrictions. 

Appellant submitted a duty status report (Form CA-17) dated January 28, 2016 from

Dr. Hosea Brown III, a Board-certified internist. Dr. Brown recommended: “as needed”

restrictions for continuous activities and intermittent lifting of no more than five pounds; no sitting, 

standing, walking, or twisting for more than one hour per day; no kneeling, bending/stooping, 

pulling/pushing, or reaching above the shoulder; and no driving, except to and from work. He 

diagnosed an aggravation of scoliosis.

In a March 11, 2016 development letter, OWCP notified appellant of the deficiencies of 

her claim and advised her of the type of medical evidence needed. It afforded her 30 days to 

submit the necessary evidence. 

In a Form CA-17 dated March 10, 2016, a physician assistant reiterated the restrictions and 

diagnosis contained in the prior duty status report.

Appellant responded to OWCP’s inquiries on March 21, 2016. She stated that she first 

became aware of her lower back condition while under the care of her primary care physician in 

the summer of 2015, but that she visited another physician’s group on October 30, 2015. Appellant 

responded to the inquiry regarding activities outside her federal employment as not applicable.

An x-ray of appellant’s lumbar spine dated November 2, 2015 revealed mild scoliosis of 

the lumbar spine associated with early degenerative disc disease at L2-3 and L3-4. An x-ray of 

appellant’s cervical spine dated November 2, 2015 revealed moderate degenerative disc disease. 
3

An x-ray of appellant’s thoracolumbar spine dated November 2, 2015 revealed an S-shaped 

scoliosis of the thoracolumbar spine with moderate degenerative disc disease. A magnetic 

resonance imaging (MRI) scan study of appellant’s cervical spine dated November 10, 2015 

revealed moderate degenerative changes of the cervical spine resulting in moderate central canal 

stenosis at C5-6 and C6-7. Significant foraminal stenosis was noted at C5-6, C6-7, and T1-T2. A 

thoracic spine MRI scan dated November 10, 2015 revealed small bulges extending from T4-T5 

down to T8-T9. A lumbar spine MRI scan dated November 12, 2015 revealed mild scoliosis and 

otherwise normal results.

In a report dated January 28, 2016, Dr. Brown noted that he had examined appellant for 

complaints of an occupational injury to her neck, upper back, and lower back. He reported that 

appellant had worked for the past 30 years as a clerk for 8 to 10 hours per day and 5 days per week

and noted the duties of her position. Dr. Brown further noted that her duties required appellant to 

sit, stand, and walk on hard floors for prolonged periods of time, straining her back as she removed 

mail from a case; to transfer parcels, which required her to repetitively flex and extend her neck, 

thoracic, and lumbar spine; to bend beyond her waist, twisting and turning her neck and body in 

various directions, and to lift, push, and carry various amounts of mail. He noted that appellant 

had a prior work-related injury to her right wrist under OWCP File No. xxxxxx728. Dr. Brown 

noted his review of diagnostic testing and performed a physical examination. On examination he 

noted significant discomfort upon performance of cervical spine range of motion exercises, with 

significant spasm of the paraspinal cervical and lumbosacral musculature. Appellant had reduced 

range of motion of the cervical spine and lumbar spine and a weakly positive Lasegue test. 

Dr. Brown diagnosed: a permanent aggravation of degenerative joint disease of the thoracic and 

cervical spine; permanent aggravation of kyphoscoliosis of the thoracic and lumbar spine; 

permanent aggravation of degenerative joint disease of the lumbosacral spine; and thoracic 

intervertebral disc syndrome without myelopathy. He noted that appellant had been working 

approximately eight hours daily in October, and that after provision of the appropriate restrictions, 

she was currently working approximately two hours on a daily basis. Dr. Brown opined that 

appellant’s diagnosed conditions were a direct result of the performance of the duties of her 

position as a clerk throughout her 30-year employment history and that her duties clearly increased 

the biomechanical load to the cervical, thoracic, and lumbar spine, thereby causing cumulative 

trauma in the form of progressive desiccation, degeneration, deterioration, and inflammation. 

In a Form CA-17 dated April 8, 2016, a nurse practitioner reiterated the diagnoses and 

restrictions contained in the prior duty status reports.

By decision dated April 18, 2016, OWCP denied appellant’s claim for compensation

finding that the medical evidence submitted was insufficient to establish an injury or condition 

causally related to the accepted factors of her federal employment. 

In a Form CA-17 dated May 6, 2016, a physician assistant reiterated the diagnosis and 

restrictions from the prior duty status reports, adding only that appellant should be able to take a 

five-minute break as needed. 

In a Form CA-17 dated June 16, 2016, Dr. Brown advised that appellant could return to 

work on that date and listed a diagnosis of scoliosis aggravation. 
4

On November 28, 2016 appellant requested reconsideration of OWCP’s April 18, 2016 

decision. With her request, she submitted a November 10, 2016 letter from Dr. Brown who noted

that although it was clear that appellant had a history of childhood scoliosis, it was also reasonable 

to emphasize the fact that she had performed her duties as a clerk for the employing establishment 

for 30 years. He explained in greater detail the physical requirement of appellant’s work including 

repetitively extending and flexing her cervical, thoracic, and lumbar spine and lifting of mail when 

transporting them to various locations throughout the employing establishment. Dr. Brown 

explained that these types of employment activitiesincreased the biomechanical load to appellant’s 

spine, thereby causing cumulative trauma, accelerating and aggravating degenerative joint disease. 

He concluded that given the facts of this case, appellant’s injuries had been established as causally 

related to her employment. Dr. Brown stated that in the alternative, he requested appellant be sent 

for a secondary medical evaluation.

In a report dated November 10, 2016, Dr. Brown noted decreased range of motion of 

appellant’s cervical and lumbar spine with discomfort and spasm. He noted that appellant 

continued to work two hours per day with restrictions and tolerated her current level of activity, 

though with significant challenges. 

In a statement dated November 11, 2016, appellant explained that she had been diagnosed 

with scoliosis when she was nine years old and she began working at the employing establishment 

in 1986. She noted that some of the tasks she was assigned caused occasional pain in her back and 

that in October 2015 the pain became so severe that she could no longer perform the necessary 

duties of her federal employment.

By decision dated February 16, 2017, OWCP denied modification of its April 18, 2016 

decision finding that while Dr. Brown had asserted a relationship existed between appellant’s 

preexisting conditions and factors of her federal employment, but had not explained the nature of 

the underlying conditions and their natural course absent the work factors. 

On August 14, 2017 appellant requested reconsideration. With her request for 

reconsideration she submitted Form CA-17’s dated May 11 and July 6, 2017 from Dr. Brown. 

Appellant also resubmitted Dr. Brown’s January 28, 2016 report.

In a letter dated August 3, 2017, Dr. Brown explained that appellant’s preexisting scoliosis 

was a medical condition that involved an abnormal accentuated curvature of the thoracic and 

lumbar spine, which could be aggravated by certain biomechanical factors. Specifically,

Dr. Brown noted, while scoliosis would already significantly diminish range of motion in the 

thoracic and lumbar spine, it could be aggravated by the performance of any biomechanical 

maneuver involving repetitive extension and flexion of her spine. He contended that this repetitive 

extension and flexion occurred when appellant was lifting, transferring, pushing, and pulling 

parcels of mail and letters in a repetitive fashion for prolonged hours on a daily basis. Dr. Brown

further explained that the process of transferring various parcels at the employing establishment 

clearly involved twisting, turning, extending, and flexing her thoracic and lumbar spine, thereby 

increasing the biomechanical load to these areas with the result of permanently aggravating her 

preexisting scoliosis and manifesting as the acceleration and permanent aggravation of cumulative 

trauma in the form of advanced degenerative disc disease of the cervical, thoracic, and lumbar 

spine. Dr. Brown also noted that appellant’s duties included “stuffing” mail into a case, which 
5

required that she exert more force when pulling parcels out of the case, increasing the 

biomechanical load to her cervical, thoracic, and lumbar spine on a chronic basis. Consequently, 

this increased biomechanical load was transmitted to her spine, accelerating and permanently 

aggravating the degenerative process in her cervical, thoracic, and lumbar spine, as well as 

permanently aggravating her preexisting scoliosis and manifesting severe pain and discomfort in 

all the aforementioned areas. Dr. Brown noted that this cumulative trauma to appellant’s spine 

would not be present absent these factors of employment, and that therefore, it was clear that these 

factors had contributed substantially to the permanent aggravation and acceleration of the 

degenerative process to her cervical, thoracic and lumbar spine. He noted that, despite appellant’s 

modified duty due to a separate injury, she had continued to perform repetitive processing of mail 

through casing, which had continued the cumulative trauma to her spine. Dr. Brown reiterated the 

findings of the diagnostic studies for appellant’s spine, noting that her thoracic intervertebral disc 

syndrome without myelopathy and kyphoscoliosis had been permanently aggravated by factors of 

her federal employment. 

In a report dated August 3, 2017, Dr. Brown noted decreased range of motion of the 

cervical and lumbar spine with discomfort and spasm. He recommended that appellant continue 

to work within her restrictions, continue her home therapeutic activities and oral pharmacological 

regimen, and have an independent medical examination.

In a Form CA-17 dated November 14, 2017, Dr. Brown recommended: continuous 

restrictions “as needed” and intermittent restrictions of lifting no more than five pounds; sitting, 

standing, and twisting no more than one to two hours per day; climbing from zero to half an hour 

per day; no kneeling, bending/stooping, pulling/pushing, or reaching above the shoulder; and 

driving a vehicle to and from work only. He also recommended walking restrictions, but they 

were partially illegible. 

By decision dated November 12, 2017, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of her claim.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. OWCP may review an award for or against 

payment of compensation at any time based on its own motion or on application.3

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

evidence 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 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.5 If the 

 

3 5 U.S.C. § 8128(a).

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

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
6

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.6

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.7 For OWCP decisions issued on or after 

August 29, 2011, the date of the request for reconsideration is the “received date” as recorded in 

the integrated Federal Employees’ Compensation System (iFECS).

8

 

ANALYSIS

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

the merits of her claim. 

The underlying issue is whether appellant has submitted sufficient medical evidence to 

establish that the accepted factors of her federal employment caused or aggravated her lumbar, 

thoracic, and cervical spine conditions. 

In support of her request for reconsideration appellant submitted additional medical 

evidence from Dr. Brown. In his letter dated August 3, 2017, Dr. Brown discussed appellant’s 

preexisting condition, her employment history, her employment duties, and his findings on prior 

examinations and discussed in detail his opinion as to how and why her accepted employment 

factors were sufficient to have resulted in her current diagnoses. The Board finds, upon review of 

the new evidence submitted on reconsideration, that it is relevant and pertinent new evidence on 

the underlying issue of causal relationship. 

As such, the Board finds that OWCP improperly denied a merit review in its decision of 

November 12, 2017. Dr. Brown’s August 3, 2017 report contained rationale on causal relationship 

that was not previously considered by OWCP. Therefore, OWCP was required to reopen the case 

for merit review upon reconsideration.

The Board accordingly finds that appellant met the third above-noted requirement of 20 

C.F.R. § 10.606(b)(3) in her reconsideration request of August 14, 2017. Appellant submitted 

relevant and pertinent new evidence not previously considered. Thus, pursuant to 20 C.F.R. 

§ 10.608, OWCP improperly denied merit review. The case shall therefore be remanded to OWCP 

for further consideration of the merits of appellant’s claim to be followed by an appropriate merit 

decision.

 

6

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

7

Id. at § 10.607(a).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See 

also C.B., Docket No. 13-1732 (issued January 28, 2014). 
7

CONCLUSION

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

the merits of her claim. 

ORDER

IT IS HEREBY ORDERED THAT the November 12, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: January 17, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board