United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.F., Appellant

and

U.S. POSTAL SERVICE, BROOMFIELD POST 

OFFICE, Broomfield, CO, Employer

__________________________________________

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Docket No. 19-1495

Issued: March 3, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 2, 2019 appellant, through counsel, filed a timely appeal from a May 30, 2019 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 The Board notes that following the May 30, 2019 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

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board 

has jurisdiction to review this nonmerit decision.4

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 December 6, 2012 appellant, then a 41-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on December 4, 2012 she fell down concrete steps injuring 

both knees, her right wrist and hand, as well as her left arm, shoulder and neck while in the 

performance of duty. She stopped work on December 6, 2012. On December 26, 2012 OWCP 

accepted appellant’s claim for sprain of the right knee, sprain of the bilateral shoulders and bilateral 

wrist sprain. On April 1, 2013 it expanded acceptance of her claim to include right anterior 

cruciate ligament tear, and tear of the posterior horn of the right medial meniscus. On June 13, 

2013 OWCP expanded acceptance of appellant’s claim to include bilateral trigger finger, bilateral 

radial styloid tenosynovitis, and left bucket handle tear of the medial meniscus.

Appellant’s accepted surgical procedures include: a February 28, 2013 left shoulder 

arthroscopy, with repair of the labrum and subacromial bursectomy; a June 26, 2013 right trigger 

thumb release; a September 26, 2013 right shoulder arthroscopy with superior labrum anterior and 

posterior (SLAP) repair and subacromial decompression; a February 3, 2014 left trigger thumb

release; an April 2, 2014 left knee arthroscopy with partial medial meniscectomy, partial lateral 

meniscectomy, and medial femoral chondroplasty; an August 12, 2015 right knee arthroscopy with 

partial lateral meniscectomy, removal of multiple cartilage loose bodies, and trochlear 

chondroplasty; a September 4, 2018 left middle finger surgery for osteomyelitis; and a

September 19, 2018 left shoulder arthroscopic surgery to repair a SLAP tear. 

On March 7, 2013 Dr. Robert R. Nystrom, an osteopath, examined appellant due to 

shoulder, knee, and neck injuries. In a note dated April 8, 2013, Dr. Michael Hewitt, a Boardcertified orthopedic surgeon, noted appellant’s history of fall on December 4, 2012 and reported 

that appellant denied a head or neck injury. On May 3, 2013 appellant underwent electrodiagnostic 

studies of the upper extremities which were normal. On June 9, 2014 Dr. Nystrom examined her

due to neck pain as well as her accepted conditions. On July 11, 2014 appellant underwent 

electrodiagnostic studies which were negative for cervical radiculopathy. On January 22, 2016 

she underwent a cervical spine magnetic resonance imaging (MRI) scan which demonstrated 

central C5-6 disc herniation indenting the anterior aspect of the thecal sac and bulging discs at C3-

4 and C4-5. On April 29, 2016 appellant underwent electrodiagnostic studies including upper 

extremity nerve conduction velocity (NCV) and electromyogram (EMG) testing which was 

normal. On January 23, 2017 she underwent an additional EMG which demonstrated mild right 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that counsel did not appeal OWCP’s March 6, 2019 merit decision denying cervical surgery. 

Therefore, the Board has not exercised jurisdiction over that decision. 20 C.F.R. § 501.3.
3

median neuropathy at the wrist. This study was negative for cervical radiculopathy or brachial 

plexopathy. On August 30, 2017 appellant underwent a cervical MRI scan which demonstrated 

cervical spondylosis.

On April 17, 2018 Dr. Timothy R. Kuklo, a Board-certified orthopedic surgeon, examined 

appellant due to right C6 radiculopathy. He performed a physical examination and diagnosed 

cervical radiculopathy, cervical herniated disc, and spinal stenosis of the lumbar region. Dr. Kuklo 

recommended an anterior cervical discectomy and fusion at C5-6. He requested authorization for 

this surgery from OWCP on April 20, 2018.

In a development letter dated April 24, 2018, OWCP denied appellant’s request for cervical 

surgery and listed her accepted conditions including radiculopathy cervical region. It requested 

additional medical evidence supporting that her requested cervical spine surgery was causally 

related to her December 4, 2012 employment injury. OWCP afforded appellant 30 days for a 

response.

On September 13, 2017 Dr. Kuklo noted that appellant attributed her neck condition to her 

accepted December 4, 2012 employment injury. He noted that since December 4, 2012 she had 

experienced neck pain. Dr. Kuklo diagnosed cervical herniated disc and cervical radiculopathy. 

In a May 9, 2018 report, Dr. Kuklo diagnosed cervical radiculopathy and again 

recommended an anterior cervical discectomy and fusion. He found that appellant had failed 

conservative measures. On May 9, 2018 Abby E. Leishman, a physician assistant, performed a 

preoperative examination.

On June 4, 2018 OWCP referred appellant, an April 25, 2013 statement of accepted facts

(SOAF), and a list of questions for a second opinion evaluation to Dr. Douglas Porter, an 

orthopedic surgeon. In his June 20, 2018 report, Dr. Porter reviewed the SOAF and appellant’s 

medical treatment. He performed a physical examination and noted that during the interview she

was able to move her neck more than what she had demonstrated with active range of motion 

testing. Dr. Porter found no evidence of cervical myelopathy and normal motor strength. He 

diagnosed preexisting multilevel cervical spondylosis with disc herniation at C5-6. Dr. Porter 

opined that there was no objective evidence of precipitation, acceleration, or aggravation of her 

cervical spine due to appellant’s December 4, 2012 employment injury. He further found that she

had significant nonemployment-related cervical spine conditions, and that while she might elect 

to proceed with cervical spine surgery, it was not a work-related injury. Dr. Porter noted that 

appellant’s cervical spine MRI scan demonstrated findings most consistent with a degenerative 

process and not acute trauma.

In a letter dated June 28, 2018, OWCP informed appellant that her requested cervical spine 

surgery was not authorized. It requested additional medical evidence in support of her requested 

medical treatment. OWCP indicated that appellant’s claim had been accepted for radiculopathy, 

cervical region.

On July 26, 2018 Dr. Nystrom disagreed with Dr. Porter and opined that appellant’s

cervical condition was related to her accepted employment injury. He found that it was very easy 

to see how an injury involving bilateral shoulder dislocations would cause some cervical injury as 
4

well. Dr. Nystrom also noted that appellant’s neck pain was not a new complaint, as she had 

reported this for several years.

In an August 1, 2018 report, Dr. Kuklo disagreed with Dr. Porter and noted that in his 

initial examination of appellant on September 13, 2017 that she reported neck pain occurring since 

the December 4, 2012 employment injury. He opined that her complaints of arm pain and 

radiculopathy were secondary to her fall. 

On August 29, 2019 OWCP informed appellant of a conflict of medical opinion between 

Drs. Kuklo and Porter, and referred her, an August 15, 2018 SOAF, which included within the 

accepted condition of cervical radiculopathy, and a list of questions to Dr. Jeffrey J. Sabin, a 

Board-certified orthopedic surgeon, for an impartial medical examination.

In his September 28, 2018 report, Dr. Sabin noted that appellant reported that her neck 

condition with bilateral radiculopathy had been present since the December 4, 2012 employment 

injury. He reviewed the SOAF and her medical history. Dr. Sabin noted that appellant had four 

EMGs which did not demonstrate cervical radiculopathy, that she had a history of preexisting neck 

facet syndrome, and concluded that her neck condition was not related to her accepted employment 

injury. He questioned whether she had an active neck condition as a pain generator had not been 

identified. Dr. Sabin concluded that strong surgical indications were not present for these reasons.

By decision dated December 11, 2018, OWCP denied appellant’s request for cervical 

fusion. On December 28, 2018 appellant requested reconsideration.

On November 26, 2018 Dr. Gregory Reichhardt, a Board-certified physiatrist, examined 

appellant due to neck and shoulder pain as well as numbness down both arms. He listed the 

mechanism of injury as the work-related fall on December 4, 2012 when she tripped and fell down 

five feet from a porch while working. Dr. Reichhardt noted that appellant’s EMG’s were normal 

and that the etiology of her pain was unclear.

In notes dated January 9, 2019, Deana Halat, a nurse practitioner, recommended that

Dr. Kuklo’s request for cervical surgery should be granted. On January 15, 2019 Ms. Leishman, 

diagnosed right C6 radiculopathy with complete numbness of the thumb and index finger.

On January 15, 2019 Dr. Kuklo opined that appellant had experienced cervical 

radiculopathy since her December 4, 2012 employment injury. He noted that Ms. Halat supported 

his request for cervical surgery.

By decision dated March 6, 2019, OWCP denied modification of the December 11, 2018

decision.5

On March 11, 2019 Dr. Reichhardt noted that appellant underwent a cervical fusion on 

February 4, 2019 and that she felt that her neck pain was improved. He further noted that she

disagreed with the denial of her request for cervical surgery by OWCP. Dr. Reichhardt attributed 

 

5 Supra note 4.
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appellant’s neck and bilateral upper extremity pain and numbness to her December 4, 2012 

employment injury.

On April 15, 2019 appellant, through counsel, requested reconsideration of the March 6, 

2019 decision denying her requested cervical surgery. He resubmitted Dr. Kuklo’s May 9 and 

August 1, 2018 reports and his January 15, 2019 note.

On February 4, 2019 appellant underwent C5-6 anterior cervical discectomy and bilateral 

foraminotomy, as well as anterior cervical fusion. On March 22, 2019 Dr. Kuklo disagreed with

Dr. Sabin’s September 18, 2018 report and referenced his January 15, 2019 note. On February 21, 

March 22, and April 12, 2019 Ms. Halat noted that appellant had undergone a cervical anterior 

fusion.6

By decision dated May 30, 2019, OWCP denied appellant’s request for reconsideration 

relative to the denial of her request for cervical surgery. It reviewed the medical evidence 

submitted and found it was cumulative and substantially similar to evidence previously considered 

on the issue of whether surgery was medically necessary due to her accepted employment injury

of December 4, 2012.

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.7

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.8 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.9 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.10

 

6 By decision dated May 1, 2019, OWCP rescinded its acceptance of cervical radiculopathy. The rescission issue 

is currently on appeal under Docket No. 20-0479.

7 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.606(b)(3); M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-1569 (issued 

December 9, 2008).

9

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

10 Id. at § 10.608(b); L.S., Docket No. 18-0858 (issued November 19, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
6

To be timely, a request for reconsideration must be received by OWCP within one year of 

the date of OWCP’s decision for which review is sought.11 Timeliness is determined by the 

document “received date” as recorded in the Integrated Federal Employees’ Compensation System 

(IFECS).12 If the last day of the one-year time period is a Saturday, Sunday, or a legal holiday, 

OWCP will still consider a request to be timely filed if it is received on the next business day.13

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record14 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.15

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 filed a timely request for reconsideration on April 15, 2019,16 but she did not 

establish that OWCP erroneously applied or interpreted a specific point of law, or advance a 

relevant legal argument not previously considered by OWCP. Accordingly, the Board finds that 

she is not entitled to a review of the merits based on either the first or second requirement under 

20 C.F.R. § 10.606(b)(3).17

In support of her request for reconsideration, appellant submitted Dr. Reichhardt’s 

March 11, 2019 note which reported that she underwent a cervical fusion on February 4, 2019 and 

that she felt that her neck pain was improved. He further noted that she disagreed with the denial 

of her request for cervical surgery by OWCP. Dr. Reichhardt attributed appellant’s neck and 

bilateral upper extremity pain and numbness to her December 4, 2012 fall. This report is not 

relevant to the central issue in this case, whether cervical surgery was causally related to 

appellant’s accepted employment injury and medically warranted.

18

 While Dr. Reichhardt 

 

11 20 C.F.R. § 10.607(a).

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

13 Id.; M.A., Docket No. 13-1783 (issued January 2, 2014).

14 N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

15 M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

16 Supra note 13; J.F., Docket No. 16-1233 (issued November 23, 2016).

17 Supra note 10.

18 5 U.S.C. § 8103. OWCP shall furnish the services which it considers likely to cure, give relief, or reduce the 

degree or the period of disability, or aid in lessening the amount of monthly compensation. However, the employee 

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of an employmentrelated injury or condition. The employee must also establish that the procedure is medically warranted. T.A., Docket 

No. 19-1030 (issued November 22, 2019); D.K., 59 ECAB 141 (2007); R.C., 58 ECAB 238 (2006).
7

addressed appellant’s opinions regarding her cervical surgery,19 he did not offer his own medical 

opinion on the necessity of this operation.

Appellant provided her February 4, 2019 operative report. This report does not offer any 

medical opinion evidence and is not relevant to the issue of whether the surgery was medically 

warranted and causally related to her accepted December 4, 2012 employment injury.

20

 Appellant 

also provided a series of notes from Ms. Halat, a nurse practitioner. However, the Board has held 

that treatment notes signed by a nurse practitioner are not considered medical evidence as a nurse 

practitioner is not a physician under FECA.21 The nurse practitioner’s opinion therefore is not 

relevant evidence and does not constitute a basis for reopening the case on the merits of the claim22

as it is of no probative value in establishing medical necessity of a requested procedure.

23

On March 22, 2019 Dr. Kuklo noted his disagreement with Dr. Sabin’s September 18, 

2018 report. He referenced his January 15, 2019 note previously considered by OWCP. Appellant 

also provided Dr. Kuklo’s May 9 and August 1, 2018 reports and his January 15, 2019 note which 

had also previously been submitted and considered by OWCP. The submission of this evidence 

does not require reopening of appellant’s case for review of the merits as 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 constitute a basis for reopening a case.24

Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R. 

§ 10.606(b)(3).25

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

§ 10.606(b)(3). OWCP properly denied merit review.26

 

19 The belief of a claimant that a condition was caused or aggravated by the employment is not sufficient to establish 

causal relation. C.H., Docket No. 19-0409 (issued August 5, 2019); Lourdes Harris, 45 ECAB 545, 547 (1994).

20 Supra note 18.

21 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician’s assistants, nurses and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by State law).

22 Supra note 16.

23 T.A., supra note 18.

24 S.W., Docket No. 19-1498 (issued January 9, 2020).

25 Id.

26 Supra notes 9 through 11.
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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 May 30, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 3, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board