United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

U.S. POSTAL SERVICE, DELTONA POST 

OFFICE, Deltona, FL, Employer

__________________________________________

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Docket No. 21-0820

Issued: December 22, 2021

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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 6, 2021 appellant, through counsel, filed a timely appeal from a November 9, 2020 

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

days has elapsed from the last merit decision on this issue, dated October 11, 2019, 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 to review the merits of this case.

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

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

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

FACTUAL HISTORY

On December 15, 2015 appellant, then a 52-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he sustained head and neck injuries when his postal 

vehicle was rear ended while in the performance of duty. OWCP accepted his claim for sprain of 

ligaments of the cervical spine. It paid appellant wage-loss compensation on the supplemental 

rolls for intermittent disability, including attendance atmedical and physical therapy appointments, 

from February 22 through September 19, 2016. On June 22, 2016 appellant was released to return 

to work with no restrictions.

On November 13, 2017 appellant underwent an anterior cervical partial corpectomy, C5-

C7, discectomy, bilateral foraminotomies, fusion, and titanium plate instrumentation performed 

by Dr. Nizam Razack, a neurosurgeon.

On January 19, 2018 appellant filed a claim for compensation (Form CA-7) for intermittent 

disability from work commencing January 6, 2018.

In a note dated January 19, 2018, a certified physician assistant recommended that 

appellant return to work with restrictions as of February 1, 2018.

On February 5, 2018 appellant accepted a modified letter carrier assignment with the 

employing establishment effective February 1, 2018.

In a report dated March 23, 2018, Dr. Mohammed Qureshi, a neurologist, followed up with 

appellant regarding neck pain after a November 13, 2017 cervical fusion procedure. He diagnosed 

cervicalgia, cervical spondylosis, and myalgia.

By decision dated April 11, 2018, OWCP denied appellant’s claim for compensation for

disability from work for the period commencing January 6, 2018.

In a letter dated April 18, 2018, Dr. Razack noted that appellant was involved in an 

automobile incident on December 15, 2015. He stated that on November 13, 2017 appellant 

underwent an anterior cervical partial corpectomy at C5-C6 and C6-C7, discectomy, bilateral 

foraminotomies, and fusion with titanium plate instrumentation. Dr. Razack opined that the 

treatment rendered to appellant was related to the incident of December 15, 2015, noting that 

OWCP had accepted a diagnosis of sprain of ligaments of the cervical spine. He stated that this 

was a placeholder diagnosis before appellant underwent magnetic resonance imaging (MRI) scans 

and that his diagnoses after imaging were brachial neuritis and/or radiculitis due to displacement 

of the cervical intervertebral disc; displacement of the cervical intervertebral disc without 

myelopathy; and cervical spondylosis. Dr. Razack noted that appellant was on a non-work status 

from December 15, 2015 through the present.
3

On May 2, 2018 Dr. Qureshi diagnosed myalgia, muscle spasm, and cervicalgia. He 

administered trigger point injections at the right and left trapezius and bilaterally about the cervical

paraspinal area.

In a duty status report (Form CA-17) dated May 4, 2018, an urgent care provider indicated 

that appellant was not advised to resume work due to a diagnosis of lumbar strain.

In a report dated May 30, 2018, Dr. Christopher McCarthy, Board-certified in emergency 

medicine, examined appellant for complaints of lumbar pain related to an incident at work on 

May 3, 2018. He diagnosed lumbar radiculopathy and lumbalgia. In a follow-up report dated 

June 14, 2018, Dr. McCarty diagnosed lumbar radiculopathy, herniated discs at L2-L3, L3-L4, L4-

L5, and L5-S1, and facetogenic low back pain/facet joint arthritis.

On March 22, 2019 appellant, through counsel, requested reconsideration. He resubmitted

Dr. Razack’s April 18, 2018 letter and November 13, 2017 operative report.

By decision dated October 11, 2019, OWCP denied modification of its April 11, 2018 

decision. 

On October 11, 2020 appellant, through counsel, requested reconsideration of the 

October 11, 2019 decision.

OWCP subsequently received a September 4, 2020 report, wherein Dr. Robert Reppy, an 

osteopathic physician specializing in family medicine, examined appellant for complaints of neck 

pain. Dr. Reppy noted that appellant was in a motor vehicle incident on December 15, 2015 in 

which appellant had climbed into his postal vehicle and was rear-ended by another car traveling at 

over 50 miles per hour. Appellant’s upper torso shot forward and his head impacted the steering 

wheel. He returned to work in 2018, but after three months at work, he experienced sudden low 

back pain when carrying a 30-pound package and twisting after lifting it. For the next two years, 

Dr. Reppy was only able to work part time. He noted diagnostic studies including a January 6, 

2018 cervical x-ray that demonstrated post-surgical hardware at C5-C6 and C6-C7. On physical 

examination Dr. Reppy noted cervical rotation at 50 degrees bilaterally, side bending at 20 degrees 

bilaterally, normal flexion and 20 degrees of extension. He diagnosed status post cervical fusion 

at C5-C6 and C6-C7 and anterolisthesis at C4 on C5.

By decision dated November 9, 2020, OWCP denied appellant’s request for 

reconsideration of the merits of his 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. 3

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February11, 2019); W.C., 59 ECAB 372 (2008).
4

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or 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. 4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 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.7

ANALYSIS

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

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

Appellant’s October 11, 2020 timely request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally, 

the Board finds that it did not advance a relevant legal argument not previously considered by 

OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based 

on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

In support of his reconsideration request, appellant submitted a September 4, 2020 report 

from Dr. Reppy which generally addressed appellant’s November 13, 2017 cervical procedures, 

but did not address specific dates of disability related to the accepted December 15, 2015 

employment injury.8 The underlying issue in this case is whether appellant has established 

disability from work commencing January 6, 2018 causally related to the accepted December 15, 

2015 employment injury. The Board has held that the submission of evidence or argument, which 

does not address the particular issue involved does not constitute a basis for reopening a case.9 As 

4

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).

5

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.

6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

8

See A.W.,Docket No. 18-0589 (issued May 14, 2019).

9 A.J., Docket No. 20-0926 (issued January26, 2021); JimmyO. Gilmore, 37 ECAB 257 (1985); Edward Matthew 

Diekemper, 31 ECAB224(1979).
5

appellant failed to provide relevant and pertinent new evidence, he is not entitled to a merit review 

based on the third requirement under 20 C.F.R. § 10.606(b)(3).

The Board, accordingly, finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the November 9, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 22, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board