United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

San Diego, CA, Employer

__________________________________________

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Docket No. 22-0150

Issued: April 21, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On November 8, 2021 appellant filed a timely appeal from an October 27, 2021 nonmerit

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

elapsed from OWCP’s last merit decision, dated January 11, 2021, to the filing of this appeal,

pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and

501.3, the Board lacks jurisdiction over the merits of this case.

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 June 2, 2020 appellant, then a 58-year-old sales and service distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she injured her right shoulder due to factors 

of her federal employment. She explained that she had been handling packages since 1990, which 

1

5 U.S.C. § 8101 et seq.
2

involved repetitive throwing, reaching, grabbing, pulling, and tossing.

2

 Appellant noted that she 

first became aware of her condition on May 16, 2020 and realized its relation to her federal 

employment on May 20, 2020. She stopped work on May 22, 2020.

In a report dated May 21, 2020, Rayed F. Sahawneh, a chiropractor, noted that appellant 

related complaints of right shoulder pain for the past two weeks. He performed a physical 

examination, reviewed x-rays of her cervical spine and right shoulder, and diagnosed pain, 

myositis, impingement syndrome, and bicipital tendinitis of the right shoulder and segmental and 

somatic dysfunction of the cervical and thoracic spines. 

OWCP received chiropractic excuse slips dated May 21, 26, and 28, 2020 recommending

that appellant remain off work untilJune 2, 2020 due to right shoulder complaints. 

In a June 9, 2020 development letter, OWCP informed appellant of the deficiencies of her 

claim. It advised her of the type of factual and medical evidence needed and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to respond. 

In a report dated July 6, 2020, Dr. Tisha Laveta Salary, a Board-certified internist, noted 

that appellant related complaints of pain in the right shoulder since May 16, 2020. She performed 

a physical examination and noted tenderness over the right upper shoulder. Dr. Salary diagnosed 

right shoulder joint pain, impingement syndrome of the right shoulder, and right biceps tendinitis. 

In a medical note dated July 21, 2020, Dr. Jaevan Sall, a Board-certified family medicine 

specialist, noted that appellant related complaints of right shoulder pain, which she attributed to 

repetitively tossing packages at work, including a specific incident on May 16, 2020 when she 

experienced immediate shooting pain in the right lateral deltoid while tossing packages. He 

performed a physical examination and noted tenderness to palpation in the acromioclavicular joint 

and subacromial space, pain with internal rotation, reduced strength due to pain, and positive Neers 

and Hawkins’ tests. Dr. Sall performed an ultrasound of the right shoulder, which revealed a 

partial supraspinatus tear with fluid indicating likely inflammation. He performed a steroid 

injection to the subacromial space of the right shoulder and diagnosed right rotator cuff syndrome 

and impingement.

In a work status report dated July 21, 2021, Dr. Dennis Farid Khalili-Borna, a Boardcertified family medicine specialist, recommended that appellant remain off work from July 21 

through August 11, 2020 and return to work at full capacity on August 12, 2020. 

In a July 22, 2020 response to OWCP’s development questionnaire, appellant indicated 

that her job duties included receiving and distributing inbound letters and parcels to various 

locations and handling sales and window transactions. She also provided a copy of the employing 

establishment’s job description for a sales and service distribution associate. 

2 Under OWCP File No. xxxxxx286, appellant previously filed a traumatic injury claim (Form CA-1) on March 22, 

2018 alleging that on March 13, 2018 she sustained a right shoulder injury as she was throwing parcels while in the 

performance of duty. She also has an accepted occupational claim for bilateral carpal tunnel syndrome under OWCP 

File No. xxxxxx338. Appellant’s claims have not been administratively combined.
3

OWCP also received a form report dated July 27, 2020 from Dr. Khalili-Borna, which

reiterated that appellant was unable to work July 21 through August 11, 2020. 

In a medical report dated August 6, 2020, Dr. Sall noted that appellant’s right shoulder 

symptoms and physical examination findings had improved. He performed another shoulder 

steroid injection and diagnosed rotator cuff syndrome causing impingement, which he opined was 

“likely due to repetitive motions from repetitive long-term work duties as a post office worker.”

By decision dated September 1, 2020, OWCP denied appellant’s claim, finding that the 

medical evidence submitted was insufficient to establish causal relationship between the accepted 

factors of her federal employment and her diagnosed right shoulder conditions.

On October 13, 2020 appellant requested reconsideration of the September 1, 2020

decision.

In support of her request, appellant submitted a September 11, 2020 medical report by

Dr. Alexander Herrera, a Board-certified family medicine specialist, who noted that she related 

ongoing complaints of pain in the right shoulder, which she attributed to throwing, swinging, 

tossing, stuffing, and pulling packages for five hours per day while at work. Dr. Herrera performed 

a physical examination and diagnosed right rotator cuff syndrome and right biceps tendinitis. 

Dr. Salary opined that appellant’s repetitive work duties were “likely the reason for the diagnosed 

conditions.” He recommended exercises and light-duty restrictions for four weeks. 

In an October 1, 2020 progress note, Dr. Herrera noted that appellant related that she had 

not been able to perform her shoulder exercises, because she had undergone surgery for carpal 

tunnel syndrome on the right wrist on September 12, 2020. He performed a physical examination 

and a limited diagnostic ultrasound of the right shoulder, which revealed partial tears of the rotator 

cuff muscles and biceps tendon. Dr. Herrera noted that appellant performed repetitive tasks at 

work and diagnosed nontraumatic partial right rotator cuff tear. 

By decision dated January 11, 2021, OWCP denied modification of its September 1, 2020 

decision. 

On April 15, 2021 appellant requested reconsideration.

By decision dated April 21, 2021, OWCP denied appellant’s request for reconsideration of 

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

On September 17, 2021 appellant again requested reconsideration. 

By decision dated October 27, 2021, OWCP denied appellant’s request for reconsideration 

of the merits of her claim pursuant to 5 U.S.C. § 8128. 
4

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

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

Appellant’s September 17, 2021 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. Accordingly, appellant is not entitled to a review of the merits of her claim based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8

In support of her request for reconsideration, appellant also did not submit any pertinent 

new and relevant medical evidence. The underlying issue in this case is causal relationship, which 

is medical in nature, and therefore, can only be addressed by submission of rationalized medical 

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

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 (September 2020). 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.

6

Id. at § 10.608(a); F.V.,Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); J.V., Docket No. 21-0252 (issued September 23, 2021); B.S., Docket No. 20-0927 (issued 

January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

See J.V., id.; C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued October 25, 

2018); C.N., supra note 4.
5

evidence from a qualified physician. Therefore, appellant is not entitled to further review of the 

merits of her claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).9

The Board, accordingly, finds that appellant has not met 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 her claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the October 27, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 21, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

9

Id.