United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

DEPARTMENT OF AGRICULTURE, 

AGRICULTURAL MARKETING SERVICE, 

Squaw Valley, CA, Employer

__________________________________________

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Docket No. 21-0629

Issued: April 28, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 23, 2021 appellant filed a timely appeal from a September 11, 2020 nonmerit 

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

has elapsed from OWCP’s last merit decision, dated September 6, 2019, to the filing of this appeal, 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from September 11, 2020, the date of OWCP’s last decision, was 

March 10, 2021. Because using March 11, 2021, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is February 23, 2021, rendering the appeal timely filed. See20 C.F.R. § 501.3(f)(1).
2

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

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 April 3, 1995 appellant, then a 31-year-old poultry grader, filed a traumatic injury claim 

(Form CA-1) alleging that on March 15, 1995 she injured her left shoulder when a carpet slipped 

underneath her feet causing her to fall while in the performance of duty. OWCP accepted her

claim for adhesive capsulitis of the left shoulder, bursitis of the left shoulder, other sprain of the 

left shoulder joint, contusion of the left shoulder, and hypertrophic scar. Appellant underwent 

OWCP-authorized manipulation under anesthesia of the left shoulder, and stabilization of the 

biceps tendon on March 22 and July 2, 1996, excision of intact keloid and hypertrophic scar of the 

left shoulder on October 12, 2004, and arthroscopic evaluation of the left shoulder, acromioplasty 

and bursectomy on December 3, 2008. She later returned to work in a full-time capacity as a 

teacher effective August 7, 1999.

By decision dated April 27, 2000, OWCP issued a loss of wage-earning capacity (LWEC) 

determination based on appellant’s actual earnings as a full-time teacher. It found that she had 

worked in the position for over 60 days, commencing August 7, 1999, and that the employment 

fairly and reasonably represented her wage-earning capacity.

Appellant was treated by Dr. Mathew T. Provencher, a Board-certified orthopedist, on 

October 25 and November 1, 2018 for chronic worsening left shoulder pain, clicking, weakness, 

numbness, and tingling. Dr. Provencher noted a history of a work-related left shoulder injury 

sustained in 1995 and six subsequent left shoulder surgeries. He diagnosed left shoulder pain. 

Dr. Provencher treated appellant in follow up on November 5, 2018. He reviewed a magnetic 

resonance imaging (MRI) scan of the left shoulder performed on November 1, 2018 that revealed 

mild fatty atrophy of the rotator cuff musculature, severe fatty atrophy of the trapezius musculature 

and anterior deltoid, and mild-to-moderate supraspinatus and infraspinatus tendinosis with bursal 

surface fraying. On January 14, 2019 Dr. Provencher diagnosed left muscular atrophy and left 

distal clavicle osteolysis. He requested authorization to perform a distal clavicle reconstruction.

On February 12, 2019 OWCP authorized left shoulder arthroscopy, which was performed 

on February 18, 2019 by Dr. Provencher with limited debridement, subacromial decompression, 

acromioclavicular (AC) reconstruction with iliac crest bone graft, AC joint reconstruction with 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the September 11, 2020 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Procedures 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.
3

semitendinosus allograft, left clavicle osteotomy with bone graft, and left hip iliac crest bone 

harvest. Dr. Provencher diagnosed passive instability in the left anterior-to-posterior direction of 

the clavicle of the AC joint, synovitis located in the rotator interval and subacromial space, and 

frayed posterior superior labrum.

On February 20, 2019 appellant was treated by Dr. Michael Austin Mandrell, a Boardcertified emergency room physician, for a severe headache, photophobia, slurred speech, and right 

hand tingling. She reported having surgery on her clavicle two days prior. Laboratory workup 

revealed an extremely elevated liver function testing. Dr. Mandrell noted a computerized 

tomography (CT) scan of the head was unremarkable and a chest x-ray revealed small bilateral 

pleural effusions. He noted that an ultrasound of the right upper quadrant showed cholelithiasis 

with gallbladder wall thickening and pericholecystic fluid, which may be the etiology of 

appellant’s elevated liver function testing. Dr. Mandrell diagnosed acute liver failure of uncertain 

etiology, acute cholecystitis, and acute headache of uncertain etiology and admitted appellant to 

the intensive care unit (ICU) for further workup and management. 

Dr. Omar Mctabi, a Board-certified internist, treated appellant in the ICU on February 21, 

2019 for generalized headache, malaise, fatigue, and pain in her left shoulder and hip area. 

Appellant reported a sixth revision surgery of her left shoulder two days prior and she was 

discharged with an epidural Bupivacaine pump. She presented to the emergency department and 

was found to have liver failure. Dr. Mctabi diagnosed acute fulminant liver failure mediated by 

the epidural Bupivacaine pump, coagulopathy of liver failure, slight leukocytosis, mild 

thrombocytopenia, headache and generalized malaise, and multiple surgeries left shoulder. He

indicated that there were numerous case reports that describe similar instances of late onset liver 

injury from patients treated with epidural Bupivacaine pump. 

Dr. Joseph A. Chapman, a Board-certified internist, performed a gastroenterology 

consultation on February 21, 2019. He noted that appellant was admitted to the ICU with 

encephalopathy and diagnosed with acute liver failure. Appellant reported recently undergoing 

left clavicular surgery on February 18, 2019 and was discharged with an intrathecal Bupivacaine 

pump. Dr. Chapman opined that the cause of the acute liver failure was unclear. He transferred 

appellant to a higher level of care facility for further workup and monitoring.

On February 25, 2019 Dr. Todd Carlson, a Board-certified internist, treated appellant upon 

transfer to a new hospital on February 21, 2019. He diagnosed acute liver injury. Dr. Carlson

noted appellant had a history of left shoulder surgeries and chronic dysphagia and was transferred 

on February 21, 2019 for acute liver failure. He opined that her liver injury was felt to be most 

likely secondary to Bupivacaine that she was receiving for postoperative anesthesia. Dr. Carlson

noted that appellant’s liver function tests improved throughout her admission and she was 

discharged on February 24, 2019.

On March 15, 2019 OWCP expanded the acceptance of appellant’s claim to include: other 

instability left shoulder; open fracture of unspecified part of the left shoulder;sprain of the left AC 

joint, malignant neoplasm of ribs, sternum, and clavicle; brachial plexus disorders; impingement 

syndrome of the left shoulder; adhesive capsulitis of the left shoulder; disorder of bursae and 

tendon in the left shoulder;sprain of the shoulder and upper arm; contusion of left shoulder region, 

left keloid scar; and other psychogenic pain.
4

OWCP received additional evidence. Reports dated March 11 and 28, 2019 indicated that

Dr. Provencher treated appellant status post left shoulder AC ligament reconstruction on 

February 18, 2019. Dr. Provencher noted her postoperative course was complicated by elevated 

liver function test, which was resolving. He diagnosed postoperative shoulder surgery located on 

the left shoulder joint.

In reports dated April 16 and May 14, 2019, Dr. Rock Navarkal, a Board-certified

physiatrist, diagnosed postoperative pain, distal clavicle repair, and left shoulder arthroplasty

clavicle insufficiency reconstruction and recommended a course of physical therapy.

OWCP further developed appellant’s claim, including referring her to a district medical 

adviser (DMA), to determine whether she developed acute liver failure as a consequence of the 

February 18, 2019 surgery for an accepted work-related injury. In an April 29, 2019 report,

Dr. David I. Krohn, a Board-certified gastroenterologist serving as the DMA, reviewed the 

statement of accepted facts (SOAF) and medical records. He noted that he was unable to find 

research that confirmed Dr. Mctabi’s assertion that appellant’s liver failure was mediated by 

exposure to Bupivacaine. Dr. Krohn further noted that Dr. Chapman, who evaluated appellant in 

consultation, opined that the cause of the acute liver failure was unclear. He noted that appellant 

was transferred to another hospital and was evaluated by a hematologist; however, the consult note 

was not included in the medical records. Dr. Krohn noted the discharge summary indicated that 

appellant’s acute liver injury may be due to Bupivacaine intrathecal anesthesia; however, he did 

not believe that acute liver injury was a well-known complication of Bupivacaine intrathecal 

anesthesia. He opined that, given the discrepancy in opinion regarding the cause of the acute liver 

failure, he requested the narrative consultation report from the hematologist be forwarded to him 

for review.

On July 15, 2019 OWCP referred the case file, a SOAF, and a series of questions to

Dr. Rajeshwar Kadian, a Board-certified internist, for a second opinion examination and 

evaluation as to whether appellant developed acute liver failure as a consequence of the 

February 18, 2019 left shoulder surgery.

In a July 16, 2019 report, based on the medical records, SOAF and accepted medical 

practice, Dr. Kadian opined that the diagnosis of acute liver failure as a consequence of left 

shoulder injury could not be definitively established. He indicated that more specific evidence and 

testing would be required to correctly respond to the question. Dr. Kadianreferencedthe discharge 

summary of April 25, 2019, which stated that the acute liver failure was of uncertain etiology.

Dr. Provencher treated appellant on July 15, 2019 for worsening left shoulder pain and 

decreased range of motion. He diagnosed adhesive capsulitis and performed a steroid injection 

into the left shoulder. On August 26, 2019 appellant reported brief relief in left shoulder pain after 

the injection; however, the pain and decreased range of motion returned. Dr. Provencher 

diagnosed adhesive capsulitis and recommended a left shoulder scope with debridement and 

hardware removal to help with pain and range of motion issues.

By decision dated September 6, 2019, OWCP denied expansion of the acceptance of 

appellant’s claim to include the additional condition of acute liver failure.
5

OWCP received additional evidence. On September 11, 2019 Dr. Provencher performed: 

a left shoulder arthroscopic capsular release of the rotator interval, anterior capsule, inferior 

capsule, and posterior capsule; extensive arthroscopic debridement of the rotator interval and 

subacromial space;subacromial decompression; hardware removal of the left distal clavicle; and 

manipulation under anesthesia. He diagnosed impingement with extensive synovitis and 

adhesions, synovitis throughout, and capsular contraction.

In support of her claim, appellant submitted a September 30, 2019 report from

Dr. Provencher who noted performing a distal clavicle reconstruction, iliac crest graft, plating of 

the clavicle, and allograft reconstruction. Dr. Provencher noted that, subsequent to the surgery,

appellant developed headaches and slurred speech and was admitted to the hospital due to a high 

liver function test. He noted that appellant’s condition was believed to be related to her 

postoperative recovery and potential Bupivacaine administration from the anesthetic block. 

Dr. Provencher opined that on a more probable than not basis appellant’s emergency room visit 

and hospital admission were due to a high liver function test, headache, and slurred speech 

associated with her surgical treatment to fix her left shoulder.

In a January 27, 2020 report, Dr. Bahri M. Bilir, Board-certified in gastroenterology and 

transplant hepatology, noted treating appellant on February 23, 2019. He advised that appellant 

was transferred due to drug-induced liver disease and acute liver failure. Dr. Bilir noted that 

Bupivacaine caused liver disease and acute liver failure.

On August 13, 2020 appellant requested reconsideration via a May 15, 2020 statement. 

She asserted that Dr. Kadian’s report was insufficient to deny the expansion of the acceptance of 

her claim to include acute liver failure because he indicated that more evidence and testing would 

be needed to provide his opinion. Appellant further noted that he did not indicate or discuss any 

points of disagreement with the diagnosis. She asserted that Dr. Mctabi treated her and diagnosed 

acute fulminate liver failure. 

By decision dated August 26, 2020, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). It indicated that the evidence reviewed 

in support of her reconsideration request included a May 15, 2020 statement requesting 

reconsideration of her claim.

Appellant requested reconsideration and submitted additional medical evidence.

Appellant attended physical therapy treatment on August 10, 2020.

In a statement dated September 3, 2020, appellant responded to OWCP’s decision dated 

August 26, 2020 and indicated that she submitted new evidence from her treating hepatologist and 

orthopedic surgeon. She requested that all of the evidence be reviewed and considered. Appellant

submitted numerous medical records for a hospital admission from September 11 through

12, 2019. Included in these records was a September 11, 2019 operative report from

Dr. Provencher who performed a left shoulder arthroscopy capsular release, extensive arthroscopic 

debridement, subacromial decompression, hardware removal of the left distal clavicle, a history 

and physical, discharge summary, diagnostic radiology reports, medication administration records, 

and anesthesia and sedation records.
6

By decision dated September 11, 2020, OWCP summarily denied appellant’s request for 

reconsideration.

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 

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 her claim.

With her timely request for reconsideration, appellant submitted numerous medical 

records. Included were a physical therapy treatment note dated August 10, 2020 and records from 

a hospital admission from September 11 through 12, 2019. The hospital admission records 

included an operative report from Dr. Provencher dated September 11, 2019, a history and 

physical, discharge summary, diagnostic radiology reports, medication administration record, and 

anesthesia and sedation records.

4

Id. at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued 

February11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,

Docket No. 08-1569 (issued December 9, 2008).

6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.

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). Id. at Chapter 2.1602.4b.

7

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

8

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
7

Section 8124(a) of FECA provides: OWCP shall determine and make a finding of fact and 

make an award for or against payment of compensation.9 Section 10.126 of Title 20 of the Code 

of Federal Regulations provide: “The decision [of the Director of OWCP] shall contain findings 

of fact and a statement of reasons.”

10

 Moreover, the Federal (FECA) Procedure Manual provides 

that the claims examiner’s “evaluation of the evidence should be clear and detailed so that the 

reader understands the reason for the disallowance of the benefit and the evidence necessary to 

overcome the defect of the claim.”

11

OWCP did not reference nor discuss any of the new medical evidence submitted in support 

of appellant’s timely August 31, 2020 reconsideration request in its September 11, 2020 decision.

It, therefore, did not discharge its responsibility to set forth findings of fact and a clear statement 

of reasons explaining the disposition so that appellant could understand the basis for the decision, 

i.e., why the new medical evidence had not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 12

Accordingly, the Board will set aside the September 11, 2020 decision and remand the case 

for OWCP to review the evidence submitted in support of appellant’s reconsideration request and 

make findings of fact and provide reasons for its decision, pursuant to the standards set forth in 

section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126. After this and other such further development 

as deemed necessary, it shall issue an appropriate merit decision.

CONCLUSION

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

the merits of her claim.

9

5 U.S.C. § 8124(a);see J.J., Docket No. 19-0448 (issued December 30, 2019);see Hubert Jones, Jr., 57 ECAB 

467 (2006).

10 20 C.F.R. § 10.126.

11 Federal (FECA) Procedure Manual, Part 2 --Claims, Disallowances,Chapter 2.1400.5c(3) (February 2013).

12 See J.M., Docket No. 18-0729 (issued October 17, 2019); J.J., Docket No. 11-1958 (issued June 27, 2012).
8

ORDER

IT IS HEREBY ORDERED THAT the September 11, 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 28, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board