United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

U.P., Appellant

and

U.S. POSTAL SERVICE, NORTH CARRIER 

ANNEX POST OFFICE, Long Beach, CA, 

Employer

__________________________________________

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Docket No. 20-1581

Issued: April 23, 2021

Appearances: Case Submitted on the Record

Roxann M. Gonzalez, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 31, 2020 appellant, through his representative, filed a timely appeal from a 

May 8, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As 

more than 180 days has elapsed from OWCP’s last merit decision, dated October 15, 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 over the merits of this case.3

 

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.

3 The Board notes that following the May 8, 2020 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

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 April 5, 2019 appellant, then a 56-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed a lower back injury due to factors of his federal 

employment, including standing, walking, lifting heavy objects, and ascending and descending 

stairs. He noted that he first became aware of his condition on February 16, 2019 and first realized 

its relationship to his federal employment on February 27, 2019. Appellant did not stop work.

In support of his claim, appellant submitted a duty status report (Form CA-17), dated 

April 1, 2019, from Dr. Basimah Khulusi, a Board-certified specialist in physical medicine and 

rehabilitation. Dr. Khulusi diagnosed lumbar spinal stenosis and listed appellant’s work 

restrictions.

In a development letter dated April 15, 2019, OWCP informed appellant that the evidence 

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

evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

OWCP subsequently received a magnetic resonance imaging (MRI) scan of appellant’s 

lumbar spine, dated June 25, 2018, which revealed multilevel degenerative disease in the lumbar 

spine with anterior degenerative spondylolisthesis, disc bulge and spurring, moderate facet 

arthropathy, and moderate central spinal stenosis. X-rays of appellant’s lumbar spine, dated 

February 27, 2019, revealed mild degenerative disc disease, mild bilateral sacroiliac arthrosis, mild

facet arthrosis, degenerative anterolisthesis, and moderate osseous neural foramina stenosis. An 

MRI scan of appellant’s lumbar spine, dated March 18, 2019, revealed moderate-to-severe spinal 

canal stenosis at L4-5 and mild-to-moderate bilateral neuroforaminal stenosis at L4-5 and L5-S1.

In an April 1, 2019 report, Dr. Khulusi noted that appellant suffered a low back injury. She 

described appellant’s employment activities and recounted his history of injury. Dr. Khulusi 

provided physical examination findings and diagnosed acceleration of degeneration of the lumbar 

spine, lumbar disc displacement, lumbar radiculopathies, and lumbar spinal stenosis. She noted

that the repetitive bending, lifting, carrying, pushing, pulling, bending, and twisting activities of 

appellant’s job put his back at a mechanical disadvantage because of the shift in his center of 

gravity. Dr. Khulusi opined that the repetitive activities caused repetitive spraining and straining 

of appellant’s low back and caused acceleration of the degeneration of the structures of his lumbar 

spine. She indicated that appellant’s repetitive work activities caused damage to the ligaments of 

the spine, causing redundancy of the ligamentum flavum and disc displacement and anterolisthesis 

at the L4 level. Dr. Khulusi noted that this in turn caused encroachment on the nerve roots, causing 

radicular symptoms, disc displacement, and moderate-to-severe canal stenosis at the L4-5 level. 

She further provided appellant’s work restrictions.

Appellant submitted Form CA-17 reports, dated April 30 and May 29, 2019, from

Dr. Khulusi, which diagnosed spinal stenosis and listed his work restrictions. 
3

On May 9, 2019 appellant responded to OWCP’s development questionnaire. He 

described his employment activities and noted that he did not engage in any sports or physical 

activity outside of work.

By decision dated July 11, 2019, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between his diagnosed 

conditions and the accepted factors of his federal employment.

On July 25, 2019 appellant requested reconsideration and submitted a July 18, 2019 report 

from Dr. Khulusi, who diagnosed acceleration of degeneration of the lumbar spine by comparing 

MRI scans dated June 25, 2018 and March 13, 2019. She noted that appellant experienced 

worsening as evidenced by the March 13, 2019 MRI scan, which showed bilateral neural foraminal 

stenosis. Dr. Khulusi opined that appellant’s acceleration of degeneration of his lumbar spine was 

caused by his repetitive work activities, which sprained the structures of the lower back, weakened 

the ligaments of the vertebrae, increased the stress on the lumbar discs, and displaced the discs 

into the spinal canal. She indicated that these pathologies caused increased encroachment on the 

space in the neural canal and caused appellant’s conditions. 

On August 5, 2019 OWCP referred appellant, along with the medical record and a 

statement of accepted facts (SOAF), for a second opinion examination with Dr. Ghol Bahman 

Ha’Eri, a Board-certified orthopedic surgeon. In a September 18, 2019 report, Dr. Ha’Eri 

reviewed the medical record and SOAF. He provided physical examination findings and 

diagnosed multilevel lumbar degenerative disc disease and spondylosis with grade 1 degenerative 

spondylolisthesis, central spinal canal stenosis, and bilateral neuroforaminal stenosis at the L4-5 

level. Dr. Ha’Eri opined that appellant’s conditions were degenerative in nature and preexisting

the date of injury. He noted that the changes in appellant’s lumbar spine were due to the natural 

aging process. Dr. Ha’Eri indicated that appellant’s work activities temporarily aggravated his 

preexisting degenerative conditions. He noted that appellant’s aggravations had returned to 

preinjury status by May 1, 2019 and advised that he was unable to return to full-duty work due to 

his preexisting degenerative condition. In an accompanying work capacity evaluation (Form 

OWCP-5c), Dr. Ha’Eri listed appellant’s work restrictions. 

By decision dated October 15, 2019, OWCP modified its July 11, 2019 decision. It noted 

that the weight of the medical evidence rested with the second opinion physician, Dr. Ha’Eri. 

OWCP, therefore, accepted appellant’s claim for temporary aggravation of multi-level 

degenerative disc disease and spondylosis. The claim remained denied, however, for acceleration 

of degeneration of the lumbar spine resulting in lumbar disc displacement, lumbar radiculopathies, 

and lumbar spinal stenosis.

OWCP subsequently received progress reports and prescription notes from Dr. Khulusi, 

dated February 27, 2019 through March 31, 2020, which described appellant’s subjective 

complaints, provided physical examination findings, and listed his treatment plan.

An electromyography (EMG) study, dated April 19, 2019, revealed no electrodiagnostic 

evidence of nerve entrapment or radiculopathy.

In a May 3, 2019 report, Dr. James T. Tran, a Board-certified neurosurgeon, noted that 

appellant had been experiencing low back pain since May 2018. He reviewed appellant’s medical 

history and provided physical examination findings. Dr. Tran diagnosed connective tissue and 

disc stenosis of intervertebral foramina of the lumbar region, osseous stenosis of the neural canal 
4

of the lumbar region, and intervertebral disc stenosis of the neural canal of the lumbar region. He 

noted that appellant’s employment activities exerted force on his lumbar spine as he had to twist 

and turn his lower back while lifting tubs of mail. Dr. Tran indicated that this force caused tears 

in appellant’s annulus fibrosus, which in turn allowed protrusion or extrusion of nucleus pulposus 

into the spinal canal. He further opined that appellant’s extension of his lower back while bending 

to pick up tubs of mail caused his lumbar facet joints to disengage and separate. Dr. Tran noted 

that disengagement of the facet joints caused tears in appellant’s annulus fibrosus and thickened 

his ligamentum flavum, causing spinal stenosis and compression of the lumbar nerve roots. He 

also opined that appellant’s extension and flexion of his lower back while bending and standing 

up exerted force on his lumbar spine which stimulated the production of more bone tissue. 

Dr. Tran indicated that additional production of bone tissue in the lumbar spine results in osseous 

stenosis of the lumbar spinal canal. He therefore found that appellant’s work activities caused his 

diagnosed conditions.

Appellant submitted acupuncture treatment notes dated June 28, 2019. 

In an October 23, 2019 Form CA-17 report, Dr. Khulusi diagnosed spinal stenosis and 

listed appellant’s work restrictions.

On February 10, 2020 appellant, through his representative, requested reconsideration. 

Appellant’s representative argued that appellant had a permanent aggravation as he was still 

suffering from his work-related injury and his condition would not revert to his previous level of 

severity, as evidenced by the second opinion physician, Dr. Ha’Eri, giving him permanent work 

restrictions. She submitted a January 30, 2020 report from Dr. Khulusi and asserted that it, along 

with Dr. Tran’s May 3, 2019 report, established causal relationship.

In a January 30, 2020 report, Dr. Khulusi reviewed Dr. Ha’Eri’s September 18, 2019 

report. She asserted that Dr. Ha’Eri’s report was not well-rationalized. Dr. Khulusi noted that

Dr. Ha’Eri found that appellant’s temporary aggravation ceased by May 1, 2019 and returned to 

preinjury status, but still opined that he was unable to return to full-duty work and had permanent 

restrictions. She indicated that appellant had back injuries in 2005, 2010, and 2015 and was able 

to return to work without restrictions each time. Dr. Khulusi opined that appellant suffered 

cumulative trauma while working for the employing establishment. She advised that appellant’s 

conditions were not preexisting, but developed over the years. Dr. Khulusi noted that appellant 

did not have a degenerative condition of his lower back prior to his federal employment.

By decision dated May 8, 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 or her own motion or on application.4

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 

 

4 5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).
5

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.5

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

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 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.8

ANALYSIS

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

the merits of his claim.

In a February 10, 2020 reconsideration request, appellant’s representative argued that 

appellant had a permanent aggravation as he was still suffering from his work-related injury and 

his condition would not revert to his previous level of severity, as evidenced by the second opinion 

physician, Dr. Ha’Eri, giving him permanent work restrictions.

The Board finds that appellant’s legal argument is new and relevant to the underlying issue 

in this case of whether appellant’s diagnosed acceleration of degeneration of the lumbar spine was 

caused or aggravated by the accepted factors of his federal employment.9 Consequently, appellant

is entitled to further merit review of his claim based on the first and second above-noted

requirements under 20 C.F.R. § 10.606(b)(3).10

In support of his argument, appellant submitted a May 3, 2019 report from Dr. Tran and a 

January 30, 2020 report from Dr. Khulusi. In his May 3, 2019 report, Dr. Tran specifically 

explained with medical rationale how the accepted employment factors caused or aggravated 

appellant’s diagnosed lumbar conditions. He described how appellant’s employment activities, 

including repetitive lifting, loading, twisting, turning, bending, and standing caused force and 

disengagement in his lumbar spine, leading to his diagnosed lumbar conditions. In her January 30, 

2020 report, Dr. Khulusi explained why a diagnosis of temporary aggravation of multi-level 

degenerative disc disease and spondylosis was not appropriate. She indicated that appellant 

suffered cumulative trauma while working for the employing establishment and noted her 

disagreement with Dr. Ha’Eri’s assessment that appellant’s temporary aggravation ceased by 

May 1, 2019, and he returned to preinjury status.

 

5 20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569 

(issued December 9, 2008).

6

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020).

7

Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see J.V., supra note 5; E.R., Docket No. 09-1655 (issued March 18, 2010).

9 See M.L., Docket No. 20-0605 (issued January 27, 2021).

10 Supra note 5.
6

The Board finds that Dr. Tran’s May 3, 2019 report and Dr. Khulusi’s January 30, 2020 

report specifically addressed the deficiencies noted in OWCP’s denial of appellant’s claim and 

provided further explanation to cure those deficiencies.11 Accordingly, these reports constitute

relevant and pertinent new evidence in support of appellant’s claim for acceleration of 

degeneration of the lumbar spine resulting in lumbar disc displacement, lumbar radiculopathies, 

and lumbar spinal stenosis. As such, appellant is entitled to further merit review of his claim based 

on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12

The Board will, therefore, set aside OWCP’s May 8, 2020 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 his claim.

ORDER

IT IS HEREBY ORDERED THAT the May 8, 2020 decision of the Office of Workers’

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

with this decision of the Board.

Issued: April 23, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

11 See L.M., Docket No. 20-1185 (issued January 13, 2021).

12 Supra note 5.