United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Kokomo, IN, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0439

Issued: June 25, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 21, 2018 appellant filed a timely appeal from September 10 and 

November 20, 2018 nonmerit decisions of the Office of Workers’ Compensation Programs 

(OWCP).1 As more than 180 days has elapsed from the last merit decision, dated May 17, 2018,

 

1 After filing the current appeal, appellant also requested reconsideration from OWCP. By decision dated

February 20, 2019, OWCP declined to reopen appellant’s claim for consideration of the merits. The Board and OWCP 

may not exercise simultaneous jurisdiction over the same issue(s) in a case on appeal. 20 C.F.R. § 501.2(c)(3). 

Following the docketing of an appeal before the Board, OWCP does not retain jurisdiction to render a further decision 

regarding the issue(s) on appeal until after the Board relinquishes jurisdiction. Id. Thus, the February 20, 2019 OWCP 

decision denying appellant’s request for reconsideration of the merits of the claim are null and void. See id.; Terry L. 

Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB 880 (1990). 
2

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

ISSUE

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

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

FACTUAL HISTORY

On April 6, 2017 appellant, then a 57-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, while in the performance of duty, she was walking on 

uneven ground in the rain and carrying a mailbag weighing 10 to 15 pounds, when she felt her 

back pop. She alleged that she sustained back and right leg pain.

On April 6, 2017 the employing establishment provided appellant with an authorization for 

examination and/or treatment (Form CA-16). A physician, whose signature is illegible, completed 

this part B of this form (attending physician’s report) on March 31, 2017 and reported that 

appellant injured her back while delivering mail. He diagnosed intervertebral disc disorder. The 

physician checked a box marked “yes” indicating that he believed that appellant’s diagnosed 

condition was related to her history of injury.

On May 4, 2017 appellant reported previous employment-related spine surgery in 2013.

In a development letter dated June 13, 2017, OWCP noted that when appellant’s claim was 

received, it appeared to be a minor injury that resulted in minimal or no lost time from work. It, 

therefore, authorized payment of a limited amount of medical expenses without formally 

considering the merits of the claim. OWCP advised appellant of the deficiencies of her claim and 

requested additional factual and medical evidence from appellant. It afforded her 30 days for a 

response.

In a report dated May 8, 2017, Dr. Nilda Durany, a family practitioner, examined appellant 

due to low back pain and radicular leg pain. She described appellant’s history of injury on 

March 30, 3017 noting her 35-pound mail satchel shifted to the right and twisted her back causing 

it to “pop.” Dr. Durany found spasm, tenderness, pain, and edema in the lumbosacral spine. She 

reported positive straight leg raising and nerve root compression. Dr. Durany diagnosed facet 

syndrome on the right at L5-S1, lumbosacral radiculopathy, degenerative disc disease of the 

lumbar spine, and lumbosacral osteoarthritis. She concluded that the injury on March 30, 2017 

was the direct cause of appellant’s diagnosed lumbar conditions. 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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.
3

By decision dated July 24, 2017, OWCP denied appellant’s traumatic injury claim finding 

that the medical evidence submitted did not provide medical rationale needed to establish causal 

relationship between her diagnosed lumbar conditions and her accepted employment incident of 

March 30, 2017. It concluded, therefore, that the requirements had not been met to establish an 

employment injury or condition. 

On August 9, 2017 appellant requested reconsideration of the July 24, 2017 merit decision. 

On August 4, 2017 Dr. Durany added an addendum to her May 8, 2017 note and opined that the 

injury on March 30, 2017 was caused by appellant’s 35-pound mail satchel shifting to the right 

which caused her back to twist and pop. She found that this injury aggravated appellant’s L5-S1 

facet arthropathy, lumbar degenerative disc disease, and lumbar osteoarthritis which were 

preexisting and causing lumbosacral radiculopathy. In an August 14, 2017 narrative statement, 

appellant asserted that on March 30, 2017 she was carrying a full mailbag weighing 30 pounds 

which caused her to walk unevenly due to the weight on her shoulders. She felt a pop or twist in 

her back. Appellant’s right leg then periodically began to feel numb. 

By decision dated November 8, 2017, OWCP denied modification of the July 24, 2017 

decision.

On February 5, 2018 appellant requested reconsideration of the November 8, 2017 merit 

decision.

On January 29, 2018 Dr. Durany opined that appellant experienced a traumatic aggravation 

to her lower back on March 30, 2017 caused by her 35-pound mail satchel shifting to the right 

resulting in twisting and popping of appellant’s lower back. She found that the shifting weight 

caused a twisting injury to appellant’s lumbosacral spine, which permanently aggravated, 

accelerated, and exacerbated her preexisting lumbosacral degenerative disc disease and L5-S1 

facet arthropathy causing lumbosacral radiculopathy. Dr. Durany concluded that this aggravation 

was a permanent change in appellant’s back condition.

By decision dated May 17, 2018, OWCP denied modification of the November 8, 2017 

merit decision.

On June 18, 2018 appellant requested reconsideration of the May 17, 2018 merit decision. 

She provided a report dated June 6, 2018 from Dr. Durany relating her history of injury on 

March 30, 2017. Dr. Durany diagnosed mild active facet arthropathy on the right at L5-S1 and 

explained that this condition was a currently progressive disease or abnormality of the facet joints. 

She also explained that lateral recess stenosis was a narrowing of the space within the rear side of 

the spinal canal. Dr. Durany further explained that on March 30, 2017 appellant’s 35-pound mail 

satchel slipped on her shoulder and shifted to the right causing appellant’s back to twist. She noted 

that as appellant’s lower back twisted with the added 35 pounds of force from the mailbag, it 

caused the “vertebrae at L4-5 and L5-S1 to twist and rotate past its physiological limit, releasing 

nitrogen gas, which caused the ‘pop’ and as the vertebrae twisted, the facet joint at L5-S1 separated 

momentarily past its physiological limit and accelerated and permanently aggravated the 

preexisting facet arthropathy osteoarthritis.” Dr. Durany further found that the rotational injury 

also caused the L4-5 joint to rotate past its physiological limit permanently aggravating preexisting 

stenosis at L4-5 and impinging the left L5 descending nerve.
4

By decision dated September 10, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of her claim.

Appellant again requested reconsideration on September 20, 2018 and submitted a May 8, 

2017 progress report by Dr. Durany who concluded that appellant’s diagnosed lumbar conditions 

were the “direct result of her required work duties for the [employing establishment] on 

March 30, 2017.” She resubmitted a portion of Dr. Durany’s May 8, 2017 narrative report

discussing causal relationship between the mechanism of the March 20, 2017 employment incident 

and the diagnosed back conditions. To this report Dr. Durany added that the “injury aggravated 

[appellant’s] L5-S1 facet arthropathy, lumbar degenerative disc disease and lumbar osteoarthritis 

which was preexisting and is causing the lumbosacral radiculopathy.”

Appellant also resubmitted January 29 and June 6, 2018 medical reports by Dr. Durany, 

who reiterated her opinion contained in the previously discussed addendum to her May 8, 2017 

narrative report. 

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with a discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on application 

by a claimant.4 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.5

To require OWCP to reopen a timely application for merit review under section 8128(a) of 

FECA,6 OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.7 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant’s application for review must be 

received within one year of the date of that decision.8 When a claimant fails to meet one of the 

above standards, OWCP will deny the application for reconsideration without reopening the case 

for review on the merits.9

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 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. Id. at Chapter 2.1602.4b.

6 Supra note 4.

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.607(a).

9 A.G., Docket No. 18-1720 (issued May 7, 2019); C.F., Docket No. 18-0583 (issued October 16, 2018).
5

When reviewing an OWCP decision denying merit review, the function of the Board is to 

determine whether OWCP properly applied the standards set forth at section 10.606(b)(3) to the 

claimant’s application for reconsideration and any evidence submitted in support thereof.10

ANALYSIS

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

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

The underlying issue on appeal was whether appellant submitted sufficient rationalized 

medical opinion evidence to establish a back condition causally related to her accepted March 30, 

2017 employment incident. With her reconsideration requests, appellant did not attempt to show 

that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal 

argument not previously considered by OWCP. Consequently, she was not entitled to a review of 

the merits of her claim based on the first and second above-noted requirements under section 

10.606(b)(3).11

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted new medical evidence from Dr. Durany, which addressed the relevant issue of causal 

relationship. Her May 8, 2017 progress note and narrative both addressed causal relationship 

between the diagnosed back conditions and the accepted March 30, 2017 employment incident. In 

the May 8, 2017 narrative report, Dr. Durany opined that the March 30, 2017 “injury aggravated 

her L5-S1 facet arthropathy, lumbar degenerative disc disease and lumbar osteoarthritis which was 

preexisting and is causing the lumbosacral radiculopathy.” In her June 6, 2018 report, she offered 

a medical explanation of the physiological processes by which appellant’s March 30, 2017 

employment incident aggravated her preexisting conditions of facet arthropathy osteoarthritis and 

stenosis at L4-5 resulting in impingement of the left L5 descending nerve.

The Board finds that the opinions and reasoning expressed in Dr. Durany’s May 8, 2017 

addendum and her June 8, 2018 report, constitute relevant and pertinent new evidence not 

previously considered by OWCP. Dr. Durany’s opinions directly addressed the basis upon which 

OWCP denied appellant’s claim as it addressed the issue of causal relationship between her 

accepted employment incident and her diagnosed aggravations of preexisting lumbar conditions.12 

In support of a request for reconsideration, an appellant is not required to submit all evidence 

which may be necessary to discharge his or her burden of proof.13 He or she needs only to submit 

relevant, pertinent evidence not previously considered by OWCP.14 The Board thus finds that 

 

10 20 C.F.R. § 10.608(b).

11 T.G., Docket No. 18-1064 (issued April 26, 2019).

12 Id.

13 Id.; J.F., Docket No. 17-1508 (issued March 28, 2018).

14 T.G., supra note 11.
6

appellant’s request for reconsideration met one of the standards for obtaining a merit review of her 

case. Accordingly, she is entitled to a merit review.15

The Board will, therefore, set aside OWCP’s September 10, and November 20, 2018 

decisions. Following such further development of the evidence as might be necessary, OWCP 

shall issue an appropriate decision. 

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the November 20 and September 10, 2018 decisions

of the Office of Workers’ Compensation Programs are set aside and the case remanded for further 

action consistent with this decision of the Board.

Issued: June 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 The Board notes that where an employing establishment properly executes a Form CA-16 authorizing medical 

treatment related to a claim for a work injury, the form creates a contractual obligation, which does not involve the 

employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. See 

Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 

60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c)