United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Douglasville, GA, Employer

__________________________________________

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Docket No. 19-0234

Issued: July 3, 2019

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 9, 2018 appellant, through counsel, filed a timely appeal from a May 16, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated July 18, 2017 to the filing of this appeal, 

 

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

pursuant 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

On July 2, 2015 appellant, then a 35-year-old rural carrier, filed a traumatic injury claim

(Form CA-1), alleging that she sustained injuries to her right arm and shoulder on June 15, 2015 

when using a vehicle with a defective steering wheel while in the performance of duty. She stated 

that the wheel of her long-life vehicle (LLV) pulled and strained her arm and shoulder while on 

her mail route. OWCP accepted the claim for right shoulder sprain and right cervical strain and 

placed appellant on the periodic compensation rolls effective March 6, 2016.

4

 Appellant’s medical 

history included a nonwork-related right shoulder surgery, which she underwent on 

February 10, 2016. She returned to limited-duty work on July 25, 2016.

On February 24, 2017 appellant filed a claim for disability compensation (Form CA-7) for 

the period October 15 to 28, 2016.

By decision dated July 18, 2017, OWCP denied appellant’s claim finding that the evidence 

of record failed to establish disability for the claimed period. 

OWCP later referred appellant to Dr. Michael Andrew McHenry, a Board-certified 

physiatrist, for a second opinion evaluation to determine the nature and extent of her accepted 

employment-related conditions. In his October 19, 2017 report, Dr. McHenry reviewed a 

statement of accepted facts (SOAF), history of the injury, and the medical evidence of record. He 

conducted a physical examination and found that appellant had reached maximum medical 

improvement (MMI) as it related to her accepted cervical strain, but her right shoulder condition 

was still ongoing. Dr. McHenry opined that appellant was not capable of performing the physical 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May16, 2018 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 On December 11, 2015 appellant filed a claim for disability compensation (Form CA-7) for the period 

November 14 to December 11, 2015. By decision dated February 8, 2016, OWCP denied the claim finding that the 

evidence of record failed to establish disability for the period claimed. On February 12, 2016 appellant filed a claim 

for disability compensation (Form CA-7) for the period February 8 to 9, 2016. By decision dated April 19, 2016, 

OWCP denied the claim finding that the evidence of record failed to establish disability for the period claimed. 

Appellant requested reconsideration and in a decision dated May 2, 2017, OWCP denied modification of the prior 

decisions finding that the new evidence she submitted failed to address why she was unable to work from 

November 20, 2015 to February 9, 2016, the date prior to her surgery.
3

requirements of a letter carrier as indicated in the SOAF without restrictions. He advised that she 

was only capable of performing modified-duty activities. Dr. McHenry opined that she was 

limited to pushing, pulling, and lifting up to 20 pounds and she could operate a vehicle for no more 

than two hours per day.

Appellant subsequently submitted reports dated June 23, July 14, and August 10, 2017 and 

February 22, 2018 from Dr. Eric S. Furies, a family practitioner, who diagnosed right bicep 

tendinitis, right rotator cuff tendinitis, and tear of right glenoid labrum.

Appellant also submitted a February 13, 2018 report from Dr. Trevor C. Smith, an 

emergency medicine specialist, who saw appellant in the emergency department for nausea and 

right shoulder pain.

Appellant, through counsel, requested reconsideration on May 2, 2018 and submitted a 

work capacity evaluation form (Form OWCP-5c) dated October 17, 2017 from Dr. McHenry in 

support of her claim.

By decision dated May 16, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of the claim finding that she failed to advance a relevant legal argument or submit any 

relevant and pertinent new evidence.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.5 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.6 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.7 

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

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

considered by OWCP.8 When a timely application for reconsideration does not meet at least one 

 

5 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.607.

7

Id. at § 10.607(a). 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.

8 20 C.F.R. § 10.606(b)(3).
4

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.9

It is well established that OWCP must review all evidence submitted by a claimant and 

received by OWCP prior to issuance of its final decision.10 As the Board’s decisions are final as 

to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the 

claim, which was properly submitted to OWCP prior to the time of issuance of its final decision, 

be addressed by OWCP.11

ANALYSIS

The Board finds that the case is not in posture for decision. Prior to the issuance of 

OWCP’s May 16, 2018 decision, appellant submitted a work capacity evaluation form (OWCP5c) completed by Dr. McHenry on October 17, 2017 where he opined that she was not capable of 

performing her usual job without restriction. Dr. McHenry asserted that appellant was limited to 

pushing, pulling, and lifting up to 20 pounds and she could operate a vehicle for no more than two 

hours per day. Additionally, appellant submitted reports dated June 23, 2017 through February 22, 

2018 from Dr. Furie and a February 13, 2018 report from Dr. Smith where she was diagnosed with 

right bicep tendinitis, right rotator cuff tendinitis, tear of right glenoid labrum, and right shoulder 

pain. Although appellant submitted this report prior to the issuance of the May 16, 2018 decision, 

there is no evidence that OWCP reviewed it. 

As OWCP did not review all of the evidence of record prior to issuing its May 16, 2018 

decision, the Board finds that the case is not in posture for decision. For this reason, the case will 

be remanded to OWCP to enable it to properly consider all the evidence submitted at the time of 

the May16, 2018 decision. Following such further development as OWCP deems necessary, it 

shall issue an appropriate merit decision on appellant’s request for reconsideration of the merits 

pursuant to 5 U.S.C. § 8128(a).

CONCLUSION

The Board finds that this case is not in posture for decision regarding appellant’s request 

for reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

 

9

Id. at § 10.608(a), (b).

10 See A.C., Docket No. 16-1670 (issued April 6, 2018); William A. Couch, 41 ECAB 548 (1990).

11 Id.
5

ORDER

IT IS HEREBY ORDERED THAT the May 16, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded to OWCP for further proceedings 

consistent with this decision of the Board.

Issued: July 3, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board