United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.R., Appellant

and

U.S. POSTAL SERVICE, ORLANDO POST 

OFFICE, Orlando, FL, Employer

__________________________________________

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Docket No. 20-1406

Issued: March 2, 2021

Appearances: Case Submitted on the Record

Wayne Johnson, 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 22, 2020 appellant, through counsel, filed a timely appeal from a January 24, 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 December 7, 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.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 January 24, 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 October 5, 2016 appellant, then a 53-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on October 5, 2016 he was lifting and loading a heavy mail tray 

and injured his low back, right leg, and waist while in the performance of duty. OWCP accepted 

the claim for strain of the muscle, fascia, and tendon of the lower back.

An October 13, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine revealed 

degenerative change with neuroforaminal narrowing at L4-5 and L5-S1 and mild narrowing of the 

central canal at L4-5.

Appellant submitted reports from Dr. Robert R. Reppy, an osteopath and Board-certified 

family practitioner, dated November 4, 2016 through March 3, 2017 who treated him for low back 

and neck pain, which he noted began after lifting mail trays at work on October 5, 2016. Dr. Reppy

diagnosed degenerative disc disease in the lumbar and cervical spine, disc osteophyte complex at 

C5-6, torn annulus at C5-6, and sub patellar chondromalacia.

Appellant attended physical therapy treatment on March 27, 2017.

On April 3, 2017 OWCP requested Dr. Reppy address whether the accepted work-related 

condition had resolved and appellant’s capacity to return to work.

Appellant attended additional physical therapy treatments from April 3 through 19, 2017.

In a report dated April 14, 2017, Dr. Reppy indicated that the initially diagnosed 

sprain/strain was a temporary diagnosis until more data was gathered to make a definitive 

diagnosis. He diagnosed degenerative disc disease in the lumbar and cervical spine, disc 

osteophyte complex at C5-6, and torn annulus at C5-6. Dr. Reppy provided restrictions relating 

to sitting, standing, reaching above the shoulder, twisting, and stooping. 

On April 24, 2017 OWCP referred appellant for a second opinion examination, along with 

a statement of accepted facts (SOAF), a set of questions, and the medical record to Dr. Richard C. 

Smith, a Board-certified orthopedic surgeon, to determine the nature of appellant’s work-related 

condition, extent of disability, and treatment recommendations.

Appellant continued to attend physical therapy from April 24 through May 31, 2017.

In a May 18, 2017 report, Dr. Smith noted his review of the SOAF and medical records. 

He concluded that the lumbar sprain had resolved within 6 to 12 weeks of his injury. Dr. Smith 

noted imaging studies revealed degenerative changes consistent with appellant’s age. However,

he opined that appellant had preexisting degenerative changes in the cervical and lumbar spine,

which were aggravated by the work-related injury and remained symptomatic and required 

additional treatment. Dr. Smith advised that appellant could work in a sedentary position until he 

completed a functional capacity evaluation (FCE) and vocational rehabilitation. In a work capacity 
3

evaluation (Form OWCP-5c), he noted that appellant had not reached maximum medical 

improvement (MMI), but could return to a sedentary position. 

Appellant attended physical therapy treatment on June 5, 12, and 13, 2017.

In a letter dated June 15, 2017, OWCP advised Dr. Reppy that the evidence was 

insufficient to establish that the newly diagnosed conditions of degenerative disc disease in the 

lumbar and cervical spine, disc osteophyte complex at C5-6, and torn annulus at C5-6 were 

causally related to the accepted employment injury. It requested that he submit a rationalized 

medical opinion addressing causal relationship and respond to a questionnaire.

OWCP received physical therapy reports dated May 5, June 19, 20, 26, and 27, and 

July 3, 2017.

On July 10, 2017 appellant attended an FCE.

By decision dated August 9, 2017, OWCP denied the expansion of appellant’s claim 

because the evidence of record did not demonstrate that the additional conditions of degenerative 

cervical and lumbar disc disease, osteophyte complex at C5-6, and a torn annulus at C5-6 were

causally related to the established employment injury.

On August 14, 2017 OWCP notified appellant that it proposed to terminate his wage-loss 

compensation and medical benefits as the weight of the medical evidence, as represented by the 

report of Dr. Smith, established that appellant no longer had continued disability from work as a 

result of his accepted employment injury. It indicated that, although Dr. Smith opined that 

appellant’s work injury aggravated his preexisting degenerative cervical and lumbar spine 

conditions, his opinion was deficient as he failed to provide medical reasoning addressing how the 

October 5, 2016 work event aggravated the preexisting cervical and lumbar degenerative 

conditions. OWCP afforded appellant 30 days to submit additional evidence or argument if he 

disagreed with the proposed action.

On September 25, 2017 appellant, through counsel, asserted that termination of his benefits 

was improper and that his condition goes beyond the mere strains that were accepted. He noted 

that appellant’s treating physician, Dr. Reppy, and Dr. Smith, OWCP’s referral physician, opined 

that appellant had an aggravation of his preexisting degenerative spinal condition, which was not 

resolved.

OWCP received reports from Dr. Reppy dated August 4 through September 20, 2017, who 

maintained throughout that appellant remained disabled from the accepted employment-related 

conditions as well as the preexisting conditions.

By decision dated October 5, 2017, OWCP terminated appellant’s wage-loss compensation

and medical benefits, effective October 6, 2017, finding that the report from Dr. Smith constituted 

the weight of the medical evidence and established that he had no continuing residuals or disability 

of his work-related condition.

On October 5, 2018 appellant, through counsel, requested reconsideration and submitted a 

new report from Dr. Reppy dated October 5, 2018. Counsel contended that OWCP should have 

requested a supplemental report from Dr. Smith to clarify his original report.
4

On October 15, 2018 OWCP referred appellant for a second opinion examination, along 

with a SOAF, a set of questions, and the medical record to Dr. Jeffrey T. O’Brien, a Board-certified 

orthopedic surgeon, to determine the extent of appellant’s work-related injuries, work tolerance 

limitations, and treatment recommendations.

In a November 15, 2018 report, Dr. O’Brien noted his review of the SOAF and medical 

records. He noted that there were no objective findings to support a diagnosis of strain of the lower 

back. Dr. O’Brien indicated that appellant’s complaints of radiating pain into the lower extremities 

was the result of age-related degenerative disc disease of the cervical and lumbar spine and not the 

one time workplace incident. He opined that the work-related lumbar strain resolved and appellant 

could return to work in a sedentary position. In a Form OWCP-5c, Dr. O’Brien noted that 

appellant could return to sedentary duty eight hours a day.

By decision dated December 7, 2018, OWCP reversed the October 5, 2017 decision, noting 

that OWCP did not meet its burden of proof to terminate wage-loss compensation and medical 

benefits on the basis that appellant’s accepted conditions had resolved without residuals. It found 

that the accepted strain of the muscle, fascia, and tendon of the lower back had resolved without 

residuals at the time of the second opinion examination of Dr. O’Brien on November 5, 2018 and,

therefore, appellant was not entitled to wage-loss compensation and medical benefits after that 

date.

OWCP received physical therapy treatment notes dated June 5, 6, 19, 20, and July 5, 7, 10, 

and 18, 2017.

On December 6, 2019 appellant requested reconsideration.

By decision dated January 24, 2020, OWCP denied appellant’s request for reconsideration 

of the merits of his claim.

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 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.6

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

arguments and contain evidence that either: (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 

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.607.

6

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). Chapter 2.1602.4b.
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considered by OWCP.7 When a timely request for reconsideration does not meet at least one of 

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

the case for a review on the merits.8

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).

In his timely request for reconsideration, appellant 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. Consequently, he is not entitled to a review of the merits of his 

claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).9

The Board further finds that appellant did not submit relevant and pertinent new evidence 

in support of his reconsideration request under 20 C.F.R. § 10.606(b)(3). The underlying issue in 

this case is whether his accepted strain of the muscle, fascia, and tendon of the lower back resolved 

without residuals at the time of the second opinion examination of Dr. O’Brien on 

November 5, 2018. This is a medical issue that must be addressed by relevant medical evidence, 

including the rationalized opinion of a physician.10

On reconsideration appellant submitted physical therapy treatment notes dated June 5, 19, 

and 20, 2017, previously of record. The Board finds that submission of this evidence does not 

require reopening appellant’s case for merit review, as it had already been considered by OWCP 

and, therefore, does not constitute pertinent new and relevant evidence. As these reports repeat 

evidence already in the case record, they are cumulative in nature and do not constitute relevant 

and pertinent new evidence.11 Therefore, they are insufficient to require OWCP to reopen the 

claim for consideration of the merits. 

Appellant also submitted new physical therapy treatment notes dated June 6, July 5, 7, 10, 

and 18, 2017.12 While this evidence is new, it is not relevant as it did not address whether the 

accepted strain of the muscle, fascia, and tendon of the lower back resolved without residuals on 

 

7

Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

8

Id. at § 10.608.

9 M.O., Docket No. 19-1677 (issued February 25, 2020); E.W., Docket No. 19-1393 (issued January 29, 2020);

C.B., Docket No. 18-1108 (issued January 22, 2019).

10 20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); C.N., Docket No. 08-1569 

(issued December 9, 2008); D.B., Docket No. 19-1963 (issued July 1, 2020); M.C., Docket No. 18-0841 (issued 

September 13, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11 S.F., Docket No. 18-0516 (issued February 21, 2020); James W. Scott, 55 ECAB 606, 608 n.4 (2004).

12 The Board has held that treatment notes signed by a physical therapist are not considered medical evidence as 

these providers are not a physician under FECA. See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such 

as physician’s assistants, nurses, and physical therapists are not competent to render a medical opinion under the 

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).
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November 5, 2018. 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.13 As 

such, this evidence is insufficient to warrant merit review.

The Board, accordingly, finds that OWCP properly determined that appellant was not 

entitled to further review of the merits of his claim pursuant to any of the three requirements under 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12

On appeal appellant contends that he still has residuals of his work-related injury. As 

explained above, however, the Board lacks jurisdiction to review the merits of his claim.

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 January 24, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 2, 2021

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

 

13 Supra note 2; J.R., Docket No. 19-1280 (issued December 4, 2019); M.K., Docket No. 18-1623 (issued April 10, 

2019); L.D., Docket No. 18-1468 (issued February 11, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).