United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SAN FRANCISCO VETERANS 

ADMINISTRATION HEALTH CARE SYSTEM, 

San Francisco, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 19-1832

Issued: July 21, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 30, 2019 appellant filed a timely appeal from an August 7, 20191 nonmerit 

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

elapsed from the last merit decision dated February 28, 2019 to the filing of this appeal, pursuant 

 

1 Appellant also appealed from a purported June 7, 2019 decision in OWCP Master File No. xxxxxx827. See infra

note 5. However, there is no OWCP decision of record dated June 7, 2019 in either Master File No. xxxxxx827 or 

the current file, OWCP File No. xxxxxx244. Additionally, there is no final adverse decision issued within 180 days 

of the filing of the current appeal in Master File No. xxxxxx827 over which the Board may properly exercise 

jurisdiction.
2

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

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

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On April 13, 2016 appellant, then a 35-year-old human resources assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on March 15, 2016 she pulled a muscle in her right arm 

when she reached for some papers while sitting at her desk while in the performance of duty. 

OWCP accepted the claim for right arm/shoulder strain on May 27, 2016. It paid appellant wageloss compensation benefits on the supplemental rolls from May 9 to August 20, 2016 and again 

from October 16 to 28, 2016.5

Appellant filed claims for wage-loss compensation (Form CA-7) for total disability for the 

period August 21 to October 14, 2016. 

By decision dated October 26, 2016, OWCP denied appellant’s claim for wage-loss 

compensation for the period commencing August 21, 2016 and continuing.

On November 9, 2016 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on March 31, 2017. 

On December 9, 2016 appellant filed a Form CA-7 wage-loss compensation claim for the 

period November 28 through December 9, 2016.

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the August 7, 2019 nonmerit 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.

4 Docket No. 17-1514 (issued April 10, 2018). 

5 OWCP noted that appellant filed an occupational disease claim (Form CA-2) alleging a right shoulder injury on 

or about March 15, 2016, OWCP File No. xxxxxx827. This claim was accepted for right shoulder superior glenoid 

labrum lesion and right upper limb ulnar nerve lesion. OWCP noted that the instant claim had been administratively 

combined with OWCP File No. xxxxxx827, with the latter OWCP File designated as the master file number. 
3

By decision dated June 15, 2017, OWCP’s hearing representative affirmed the October 26, 

2016 denial of the claim. 

On July 3, 2017 appellant filed an appeal with the Board. By decision dated April 10, 

2018, the Board affirmed the June 15, 2017 hearing representative’s decision.6 The Board noted 

that appellant had claimed wage-loss compensation from August 21, 2016 and continuing, but 

found the medical evidence of record was insufficient to establish total disability. 

OWCP continued to receive progress reports from Dr. Mark H. Chan, an attending Boardcertified physiatrist and pain medicine physician, regarding appellant’s medical treatment, 

diagnoses, and employment status during 2017. It also received reports from Kelly MarisWeissburg, a nurse practitioner; Dr. Mathias Masem, a Board-certified orthopedic and hand 

surgeon; and Dr. Fred Blackwell, a Board-certified orthopedic surgeon, regarding appellant’s 

medical status in 2017. Dr. Blackwell in a series of work status reports from October 13 through 

Decembers 18, 2017 indicated that appellant was capable of working four to five hours per day 

with restrictions for the period October 16, 2017 to January 18, 2018.

By decision dated December 5, 2017, OWCP expanded acceptance of appellant’s claim to 

include the conditions of right shoulder superior glenoid labrum lesion, right shoulder synovitis,

and tenosynovitis. 

On April 11, 2018 appellant requested reconsideration regarding the denial of her wageloss compensation commencing August 21, 2016 and submitted additional medical evidence from

Dr. Blackwell regarding her medical status in 2018. In work status reports dated from January 5

through June 18, 2018, Dr. Blackwell opined that appellant was capable of working four to five 

hours per day for the periods January 5 to February 5, 2018 and February 20 to July 30, 2018. In 

an April 6, 2018 report, he found appellant was totally disabled from working at that time. In 

reports dated April 20, May 1, and June 5, 2018, Dr. Blackwell found appellant could continue 

working from home. OWCP also received 2018 reports from Dr. Juon-Kin K. Fong, a Boardcertified orthopedic surgeon.

By decision dated July 10, 2018, OWCP denied modification of its prior decision.

Following the July 10, 2018 decision, OWCP received work status reports and narrative 

reports from Dr. Blackwell addressing appellant’s need for surgery and her ability to perform 

modified work for four to five hours per day from home. 

On December 3, 2018 appellant requested reconsideration. In support of her request for 

reconsideration she submitted progress reports and work status reports finding she was capable of 

working four to five hours per day with restrictions from Dr. Blackwell dated June 19, 2018 

through February 8, 2019 and supplemental reports from Dr. Mohinder Nijjar, a Board-certified 

orthopedic surgeon, dated August 30 and October 5, 2018. Appellant also resubmitted reports 

from her treating physicians as well as electromyography and nerve conduction velocity 

(EMG/NCV) scan/study, and magnetic resonance imaging (MRI) scans previously of record. 

 

6

Id.
4

By decision dated February 28, 2019, OWCP denied modification finding that none of the 

new medical evidence addressed disability during the ongoing claimed period. It also noted that 

appellant had been paid wage-loss compensation for intermittent periods for missed work during 

the period October 8, 2017 through January 4, 2019. 

Appellant resubmitted an August 17, 2016 MRI scan report and an October 6, 2016

EMG/NCV scan study. OWCP also received work status and progress reports from Dr. Blackwell 

regarding appellant’s physical status in 2017, 2018, and 2019. 

On June 3, 2019 appellant requested reconsideration and referenced her occupational 

disease claim in OWCP File No. xxxxxx827. Following her request, OWCP received May 28 and 

June 4, 2019 disability certificates for the period May 28 to July 10 2019 from Dr. Juon-Kin K. 

Fong, a Board-certified orthopedic surgeon, indicating that appellant was disabled from work. 

OWCP also received a June 3, 2019 letter from Dr. Blackwell addressing reduction of 

appellant’s work hours for the period April 4 to 26, 2019. A progress report from Dr. Blackwell 

dated June 28, 2019 included diagnoses of right rotator cuff tendinitis with impingement and 

probable superior labral anterior to superior (SLAP) lesion. He added that appellant’s shoulder 

was stable although she had noted increased difficulties. In a July 19, 2019 progress report,

Dr. Blackwell diagnosed chronic cervical sprain and strain and right rotator cuff tendinitis with 

impingement and probable SLAP lesion, noted that an additional MRI scan may be needed to 

verify the SLAP lesion, and added that appellant was capable of performing modified duty. 

Additionally, appellant submitted work status reports from Dr. Blackwell concerning her work 

capacity and diagnoses of ulnar neuropathy, right shoulder derangement syndrome, right cubital 

tunnel release, and right shoulder sprain. In the May 24, 2019 work status report, Dr. Blackwell 

found appellant was disabled from work for the period May 24 through July 31, 2019. In work 

status reports dated July 12 and 19, 2019, he found that appellant was disabled from work for the 

period July 12 through August 31, 2019.

By decision dated August 7, 2019, 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. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.7

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 

 

7 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).
5

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.8

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

OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.10 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.11

ANALYSIS

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

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

In her request for reconsideration, appellant 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. Thus, she is not entitled to a review of the merits based on either the first 

or second requirements under section 10.606(b)(3).12

However, with respect to the third above-noted requirement under 20 C.F.R. 

§ 10.606(b)(3), appellant submitted numerous reports from Drs. Fong and Blackwell addressing

her medical treatment, disability status, and work restrictions limiting her to working four to five 

hours per day in 2017, 2018, and 2019. In its August 7, 2019 decision, OWCP denied appellant’s 

request for a merit review as it found the evidence submitted irrelevant or immaterial. It only 

noted that the evidence submitted with her reconsideration request included a May 25, 2019 

handwritten statement and numerous medical documentations. 

Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is before 

OWCP at the time of its final decision,13 it is necessary that OWCP review all evidence submitted 

by a claimant and received by OWCP prior to issuance of its final decision. FECA provides that 

OWCP shall determine and make findings of fact in making an award for or against payment of 

 

8 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).

9

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 (iFECS). Id. at Chapter 2.1602.4b.

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

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

12 Supra note 8 at § 10.606(b)(3)(i) and (ii).

13 R.P., Docket No. 19-0301 (issued August 21, 2019); K.L., Docket No. 16-1341 (issued December 20, 2016);

E.Z., Docket No. 14-0274 (issued March 16, 2015); Linda Johnson, 45 ECAB 439 (1994).
6

compensation after considering the claim presented by the employee and after completing such 

investigation as OWCP considers necessary with respect to the claim.14 

The Board finds that it is unclear what medical documentation OWCP reviewed in denying 

appellant’s request for reconsideration as there was no discussion or identification of any specific 

report submitted on reconsideration. In this case, OWCP initially accepted the claim for right 

shoulder strain, but by decision dated December 5, 2017, it expanded acceptance of appellant’s 

claim to include the conditions of right shoulder superior glenoid labrum lesion, right shoulder 

synovitis, and tenosynovitis, it was therefore necessary for OWCP to determine whether any of 

the medical reports submitted on reconsideration attributed appellant’s disability to any of 

appellant’s accepted conditions, and whether these reports had been previously reviewed following 

the expansion of appellant’s accepted right shoulder conditions. Therefore, the case is remanded 

to OWCP for a discussion and identification of the medical evidence appellant submitted in 

connection with her reconsideration request, to be followed by the issuance of an appropriate 

decision regarding her reconsideration request.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the August 7, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: July 21, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Boar

 

14 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126; see J.J., Docket No. 19-0448 (issued December 30, 2019); see Hubert 

Jones, Jr., 57 ECAB 467 (2006).