United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Vancouver, WA, Employer

__________________________________________

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Docket No. 19-0640

Issued: September 10, 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 January 28, 2019 appellant filed a timely appeal from December 20, 2018 nonmerit 

decisions of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated June 29, 2018, 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 over the merits of this case.

 

1 Appellant timely requested oral argument before the Board, pursuant to 20 C.F.R. § 501.5(b). By order dated 

April 16, 2020, the Board exercised its discretion and denied the request as the matter could be adequately addressed 

based on a review of the case record. Order Denying Oral Argument, Docket No. 19-0640 (issued April 16, 2020).

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s August 13, October 29, and 

December 5, 2018 requests for reconsideration of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a).

FACTUAL HISTORY

On December 23, 2016 appellant, then a 42-year-old certified nursing assistant (CNA), 

filed a traumatic injury claim (Form CA-1) alleging that on January 19, 20163she injured her right 

shoulder down to her elbow when she repositioned a patient in bed while in the performance of 

duty. She did not stop work.4 

Appellant submitted a duty status report form (Form CA-17) dated January 16, 2017 by an 

unidentifiable provider who diagnosed frozen right shoulder and indicated that appellant could 

work with restrictions.

In a January 18, 2017 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence necessary to establish her claim and also provided a questionnaire for completion. 

OWCP afforded appellant 30 days to provide the necessary factual information and medical 

evidence.

Appellant submitted an employing establishment incident report that described how an 

incident occurred on January 19, 2016 as she was positioning a heavy patient in bed when she felt 

pain and strain in her right shoulder down to the elbow.

In a January 21, 2016 work status letter, Dr. Antonio J. Carrasco, a Board-certified family 

physician, noted that appellant was seen in their urgent care facility on that date and could return 

to work on January 29, 2016. 

In a January 28, 2016 letter, Jeffrey L. Smith, a certified physician assistant, indicated that 

appellant was treated in urgent care on that date and could return to work on January 30, 2016. 

Appellant submitted prescription notes dated July 19 and August 2, 2016 by Dr. Steven 

Lu, a Board-certified internist, who indicated a diagnosis of right frozen shoulder and right arm 

strain. Dr. Lu recommended that appellant work part-time, limited duty for four hours per shift 

from August 2 to 16, 2016. 

 

3 Appellant initially reported a date of injury of January 20, 2016, but in an e-mail dated January 17, 2017 she 

indicated that the correct date of injury was January 19, 2016.

4 The record reflects that appellant was working part-time, limited duty for six hours per day due to a previously 

accepted work-related injury under OWCP File No. xxxxxx555. Under that claim, OWCP accepted that on 

December 1, 2015 appellant strained her right forearm when pulling up a patient while in the performance of duty. It 

accepted appellant’s claim for right elbow lateral epicondylitis. OWCP has not administratively combined the claims.
3

A November 7, 2016 right shoulder magnetic resonance imaging (MRI) scan demonstrated 

chronic posterior labral injury with paralabral cyst with intraosseous extension and mild 

acromioclavicular (AC) joint degenerative changes.

In a November 22, 2016 report and work restriction form, Dr. Lu provided examination

findings and diagnosed right tennis elbow and right shoulder tendinitis. He opined that the 

inflammation of appellant’s right shoulder was caused by the job-related injury and recommended 

that appellant’s claim be accepted for right rotator cuff syndrome. 

In a November 22, 2016 prescription note, Dr. Lu reported that appellant suffered 

inflammation of the right shoulder “caused by the job-related injury.”

On January 21, 2017 appellant responded to OWCP’s development questionnaire. She 

recounted that she had previously injured her elbow in December 2015 by lifting a patient and had 

filed an incident report. Appellant indicated that a month later she sustained another injury to her 

right shoulder. She explained that she had complained about her shoulder from the onset of the 

injury, but her claim had not been accepted so she filed a new one. 

In a February 7, 2017 examination report and Form CA-17, Dr. Lu described the claimed 

January 19, 2016 employment incident and indicated that appellant’s right shoulder symptoms 

remained unchanged. He provided examination findings and diagnosed right frozen shoulder. 

Dr. Lu reported that the nature, symptoms, and timing of the injury, and physical findings were all 

consistent with the right rotator cuff initially caused by her job and gradually developed into a 

frozen shoulder due to the chronic inflammation. 

Appellant began to receive medical treatment from Dr. Jerry Fisher, a family physician. In 

a February 9, 2017 examination report, Dr. Fisher noted a date of injury of January 19, 2016 and 

recounted that appellant had a new workers’ compensation claim related to her right shoulder. He 

reviewed appellant’s history and reported examination findings of abnormal range of motion, 

stiffness in the shoulder, pain, and swelling. Dr. Fisher diagnosed shoulder sprain and right elbow 

lateral epicondylitis. 

Dr. Fisher also provided a February 9, 2017 letter wherein he requested that an OWCP 

claims examiner review his previous notes with regard to the sequence of events leading up to the 

recent MRI scan of her right shoulder. He indicated that appellant, on that date, had almost no 

symptoms in the elbow, but had significant pathology in her shoulder and needed to be evaluated 

by an orthopedist. Dr. Fisher requested that the claims examiner accept the condition of right 

shoulder sprain.

In examination reports dated March 2 and 23, 2017, Dr. Fisher noted that appellant was 

seen for follow-up examination of right shoulder strain and continued right shoulder pain. He 

noted that appellant injured herself a year ago when working as a CNA. Dr. Fisher conducted a 

physical examination and diagnosed shoulder sprain. He completed work restriction forms

indicating that appellant could work with restrictions.

In a March 7, 2017 letter, appellant expressed frustration that OWCP had not yet accepted 

her claim and alleged that Dr. Lu had answered all of OWCP’s questions. She noted that she had 
4

not gone to the doctor for her elbow between the injuries of December 1, 2015 and 

January 19, 2017. 

In a prescription note dated March 7, 2017, Dr. Lu indicated that appellant was restricted 

to work six-hour shifts due to her tennis elbow. 

In an April 11, 2017 report and work restriction form, Cheryl Einerson, a certified nurse 

practitioner, indicated that appellant was seen for follow-up of her right shoulder and elbow

conditions and provided examination findings. She assessed right shoulder sprain and right elbow 

lateral epicondylitis. Ms. Einerson reported that appellant could return to limited duty.

Appellant received medical treatment from Dr. Mark R. Colville, a Board-certified 

orthopedic surgeon. In an April 27, 2017 report, Dr. Colville noted that appellant continued to 

have right shoulder pain and remained on light-duty working in a secretarial position. He described 

the claimed January 20, 2016 employment incident and discussed the medical treatment that 

appellant received. Dr. Colville concluded that appellant’s shoulder symptoms could be related to 

her labral tear and her AC joint. 

In reports dated May 4 and 18, 2017, Dr. Fisher noted appellant’s history and her active 

problems of right elbow lateral epicondylitis and right shoulder sprain. He completed work 

restriction forms indicating that appellant could return to limited-duty employment.

By decision dated May 31, 2017, OWCP denied appellant’s claim. It accepted that the 

January 19, 2016 incident occurred as alleged and that a right shoulder condition had been 

diagnosed. However, OWCP denied her claim finding that the medical evidence of record was 

insufficient to establish causal relationship between the accepted employment incident and the 

diagnosed medical conditions. 

On June 1, 2017 appellant requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review, which was held on October 18, 2017.

Appellant subsequently submitted reports dated June 1 and 22, 2017 by Dr. Colville who 

noted that appellant continued to have right shoulder pain and difficulty with overhead lifting. 

Dr. Colville explained that since it had been one and one-half years since her injury and appellant 

had failed nonsurgical treatment, he recommended arthroscopic surgery to include labral repair. 

He described the January 19, 2016 employment incident and reported that a posterior labral tear 

“could be consistent with mechanism of injury.”

In a July 6, 2017 report and work restriction form, Dr. Fisher noted appellant’s history of 

injury and indicated that she was seen for follow-up of her right shoulder and elbow. He noted 

active problems of right elbow lateral epicondylitis and right shoulder sprain. 

Dr. Fisher related, in an October 5, 2017 letter, that appellant sprained her shoulder when 

she was moving a heavy patient in his bed. He indicated that the sprain was subsequently shown 

to be a combination of tears in her shoulder and internal derangement. Dr. Fisher reported that the 

incident was the cause of appellant’s injury, which needed treatment at that time. 
5

In a November 3, 2017 report and letter, Dr. Colville noted that he had seen appellant on 

several occasions for right upper extremity difficulties sustained during an on-the-job injury. He

indicated that appellant reinjured her right shoulder on October 25, 2017 when she was taking a 

basic life support class. Dr. Colville assessed anterior shoulder pain, numbness, and tingling. He 

did not see an anatomic cause for appellant’s problem and could not explain why she was having 

difficulty. 

By decision dated December 26, 2017, OWCP’s hearing representative affirmed the 

May 31, 2017 decision.

On April 19, 2018 appellant requested reconsideration and submitted additional evidence.

In examination reports dated March 5 to 22, 2018, Dr. Peter L. Kung, a Board-certified 

orthopedic surgeon, described that in January 2016 appellant felt a tear in her right shoulder when 

she lifted a heavy patient at work. He noted that it had gotten slightly better, but appellant reinjured 

her shoulder on October 25, 2017. Dr. Kung reviewed appellant’s history and conducted an 

examination. He diagnosed right shoulder superior glenoid labrum lesion and right shoulder pain. 

Dr. Kung reported that he discussed with appellant that while the October 2017 incident could 

have aggravated her shoulder, the tear and cysts were there since 2016. He opined that it could be 

related and due to her injury at work while lifting a 300-pound patient. Dr. Kung explained that 

given the fact that appellant did not have any symptoms before that incident, this incident “is likely 

the cause on a more-probable-than-not basis.”

Appellant underwent a right shoulder MRI scan on March 12, 2018, which revealed trace 

fluid undermining the posterior mid-glenoid labrum consistent with partial detachment and mild 

acromioclavicular joint osteoarthritis.

By decision dated June 29, 2018, OWCP denied modification of the December 26, 2017 

decision.

On August 13, 2018 appellant requested reconsideration. She contended that she injured 

her right shoulder in January 2016, reported it to her supervisor, and completed the correct 

paperwork. Appellant alleged that many doctors had written to OWCP about how she was injured 

in 2016. 

Appellant resubmitted Dr. Fisher’s March 2, 23, and May 18, 2017 examination reports

and the last page of Dr. Kung’s March 16, 2018 report. 

By decision dated October 11, 2018, OWCP denied appellant’s request for reconsideration 

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

On October 29, 2018 appellant again requested reconsideration. She described the 

accepted January 19, 2016 employment incident and the medical treatment that she had received 

for her shoulder. Appellant alleged that for the past two and a half years, her arm has been limited 

and she had been unable to complete her work duties, such as basic life support training for work. 

Appellant resubmitted Mr. Smith’s January 28, 2016 letter; right shoulder MRI scan 

reports dated November 7, 2016 and March 12, 2018; Dr. Colville’s April 27 and June 1, 2017 
6

reports; and Dr. Kung’s March 14 and 22, 2018 reports. OWCP also received a copy of an article 

entitled “Paralabral Cysts associated with Posterior Labral Tear” and the position description for 

appellant’s job.

By decision dated November 5, 2018, OWCP denied appellant’s request for 

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

On December 5, 2018 appellant again requested reconsideration. She described the 

January 19, 2016 employment incident and her duties as a nursing assistant. Appellant alleged 

that nursing assistants had very active, stressful, and strenuous jobs that required her to use her 

legs and arms correctly.

Appellant resubmitted the January 19, 2016 employing establishment incident report and 

a copy of the position description for a nursing assistant.

Appellant also submitted a December 3, 2018 after visit summary note, Dr. Kung noted 

that appellant was seen for follow-up after a posterior labral repair was done in May 2017 due to 

a work-related injury. He noted that the mechanism of injury was first “due to lifting a 300+ lb. 

patient when she injured her shoulder.” Dr. Kung indicated that this was further exacerbated by 

participating in a basic life support course. He reported that appellant complained of improved 

pain and some stiffness in her shoulder. Dr. Kung provided examination findings and diagnosed 

status post labral repair. In a conclusory paragraph to his report he noted that appellant was almost 

six months post injury, that she had reached maximum medical improvement (MMI), and that 

“lifting this large patient and pulling with a posterior directed force on her labrum due to the [basic 

life support] and the lifting could have torn her posterior labrum as this was a large abnormal 

force.”

By decision dated December 20, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of the 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.5

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 

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

OWCP.6

 

5 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).

6 20 C.F.R. § 10.606(b)(3); see J.W., Docket No. 19-1795 (issued March 13, 2010); see also L.G., Docket No. 

09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
7

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

OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.8 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.9

ANALYSIS

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

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

Appellant disagreed with the June 29, 2018 OWCP decision and timely requested 

reconsideration on August 13, October 29, and December 5, 2018. The underlying issue is 

whether appellant has established causal relationship between the accepted January 19, 2016 

employment incident and the diagnosed right shoulder condition. Thus, the Board must determine 

if appellant presented sufficient evidence or argument regarding causal relationship to warrant a 

merit review pursuant to 5 U.S.C. § 8128(a).10

With her December 5, 2018 reconsideration request, appellant submitted a December 3, 

2018 after visit summary note by Dr. Kung who noted that appellant was seen for follow-up after 

a posterior labral repair due to a work-related injury. Dr. Kung provided an opinion that the 

diagnosed condition and subsequent medical treatment was causally related to the accepted 

employment incident. In this report he more specifically found that appellant was at MMI for the 

injury and opined “lifting this large patient and pulling with a posterior directed force on her 

labrum due to [basic life support] and the lifting could have torn her posterior labrum as this was 

a large abdominal force.” The opinion as set forth by Dr. Kung is a new statement on causal 

relationship which is stated differently and with additional detail from his prior conclusory 

opinions and comes from appellant’s attempt to obtain an appropriate opinion on causal 

relationship from her attending physician without the assistance of the claims examiner. Thus, the 

Board finds that this attending physician’s report constitutes relevant and pertinent new evidence 

under the third requirement of 20 C.F.R. § 10.606(b). Appellant’s request for reconsideration 

 

7

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). Chapter 2.1602.4b.

8

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

9

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

10 S.W., Docket No. 18-1261 (issued February 22, 2019); S.V., Docket No. 17-2012 (issued October 18, 2018).
8

therefore has met the third standard of her case under 20 C.F.R. § 10.606(b)(3) and, accordingly, 

she is entitled to a merit review of her claim.11

The Board will therefore set aside OWCP’s December 20, 2018 decision and remand the 

case for an appropriate merit decision on appellant’s claim.

CONCLUSION

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).

ORDER

IT IS HEREBY ORDERED THAT the December 20, 2018 decision of the Office of 

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

consistent with this decision of the Board.

Issued: September 10, 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 Board

 

11 See J.W., Docket No.18-0822 (issued July 1, 2020); M.C., Docket No. 17-1983 (issued August 17, 2018);

S.H., Docket No. 17-1101 (issued August 3, 2017); Helen E. Tschantz, 39 ECAB 1382 (1988).