United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.K., Appellant

and

U.S. POSTAL SERVICE, UNION BRIDGE 

POST OFFICE, Union Bridge, MD, Employer

__________________________________________

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Docket No. 22-0793

Issued: August 26, 2022

Appearances: Case Submitted on the Record

Scott B. Baron, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 27, 2022 appellant, through counsel, filed a timely appeal from a February 11,

2022 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 28, 2021, 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 February 11, 2022 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 her claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On June 24, 2019 appellant, then a 56-year-old postal clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she injured her neck, back, left shoulder, and left hip when 

an automated postage machine loaded with tubs fell on her while in the performance of duty. She 

stopped work on the date of injury. Appellant received continuation of pay from June 25 through 

August 8, 2019.

The employing establishment executed an authorization for examination and/or treatment 

(Form CA-16) on June 24, 2019. In the accompanying attending physician’s report, Part B of the 

Form CA-16, a health provider (whose signature is illegible), indicated treating appellant on 

June 24, 2019 for cervical fracture, and back and neck pain due to a fall at work. The provider 

indicated by checking a box marked “Yes” that the diagnosed conditions were employment related. 

The provider referred appellant to an orthopedist and listed the period of disability as June 24 

to 30, 2019. 

On August 20, 2019 appellant began filing claims for compensation (Form CA-7) for total 

disability from work, commencing August 9, 2019 and continuing.

In support of her claim for compensation, appellant submitted a report dated July 30, 2019

by Dr. Joseph O’Brien, a Board-certified orthopedic surgeon, who noted that she related 

complaints of neck and lower back pain, which she attributed to the June 24, 2019 claimed work 

incident. Dr. O’Brien further noted that she related a history of cervical fusion surgery in 2000 

and that she had undergone a computerized tomography scan of the neck on June 24, 2019,

magnetic resonance imaging (MRI) scan studies of the cervical spine on July 4, 2019, and thoracic 

and lumbar spines on July 25, 2019. He performed a physical examination, which revealed mild 

tenderness to palpation and spasm in the cervicalspine and tenderness and reduced range of motion 

in the lumbar spine. Dr. O’Brien obtained standing x-rays of the lumbar spine, which revealed

degenerative disc space collapse at L5-S1 with grade 1 spondylolisthesis at L4-5, and x-rays of the 

thoracic spine, which revealed mild degenerative changes and the presence of anterior cervical 

discectomy and fusion at C6-7. He diagnosed cervical injury, lumbago, and thoracic sprain and 

recommended physical therapy and a consultation with an injection specialist. 

Appellant began receiving physical therapy on August 2, 2019. 

In a development letter dated August 28, 2019, OWCP informed appellant that the 

evidence submitted was insufficient to establish entitlement to compensation for the period 

commencing August 9, 2019. It requested that she submit medical evidence from her physician 

explaining how her employment-related conditions caused or contributed to her inability to work 

during the claimed period.
3

OWCP accepted the claim for sprain of ligaments of the thoracic spine. 4 

In a narrative report dated September 12, 2019, Dr. O’Brien noted diagnoses of cervicalgia 

due to whiplash, cervical radiculopathy at C6, lumbar spondylolisthesis, and lumbago. In 

subsequent notes dated November 12, 2019 and February 10, 2020, he recommended that 

appellant remain out of work until February 10, 2020. On January 15, 2020 Dr. O’Brien

recommended that she remain out of work until May 11, 2020.

In a medical report dated February 17, 2020, Dr. M. H. Zamani, a Board-certified 

orthopedic surgeon, noted that appellant related complaints of neck and back pain, which she 

attributed to the June 24, 2019 employment incident. He reviewed her history of treatment and 

diagnostic testing and performed a physical examination, which revealed soft clicking during range 

of motion of the neck and pain with deep breathing and palpation of the lumbar spine. Dr. Zamani 

diagnosed degenerative disc disease of the cervical and lumbar spine and opined that appellant did 

not require any further treatment.

By decision dated April 23, 2020, OWCP denied appellant’s claim for compensation, 

finding that she had not submitted sufficient medical evidence to establish disability from work 

for the period commencing August 9, 2019 and continuing due to the accepted condition. 

OWCP continued to receive evidence, including a medical report dated November 1, 2019

by Dr. O’Brien, who diagnosed severe paraspinal muscle spasm and opined that appellant was 

unable to work.

In a further narrative letter dated November 11, 2019, Dr. O’Brien reiterated the diagnoses 

in his September 12, 2019 letter and recommended that appellant remain out of work for three 

months. 

In a medical report dated May 15, 2020, Dr. O’Brien documented appellant’s complaints 

and examination findings and diagnosed left shoulder pain and status post cervical fusion. He 

noted that she related that she felt that she was unable to return to work. Dr. O’Brien recommended 

additional physical therapy and an MRI scan of the left shoulder.

On December 10, 2020 appellant, through counsel, requested reconsideration of OWCP’s 

April 23, 2020 decision. In support of the request, counsel submitted: (1) legal argument seeking 

payment of compensation benefits for total disability and expansion of the acceptance of her claim 

to include additional medical conditions; and (2) an undated narrative report by Dr. O’Brien, who

diagnosed cervical and thoracic sprain, lumbago and exacerbation of stenosis and 

spondylolisthesis in the cervical and lumbar spines and opined that appellant was unable to work.

OWCP also received a report of an MRI scan of the left shoulder dated May 27, 2020, 

which was read as normal.

By decision dated March 4, 2021, OWCP denied modification of its April 23, 2020 

decision. 

4 OWCP subsequently accepted the claim for sprain of ligaments of the cervical spine.
4

OWCP continued to receive evidence, including reports of Patricia Duke, a nurse 

practitioner, dated February 17 and March 10, 2021, reports of MRI scans of the cervical and 

lumbar spine dated March 4, 2021, a work excuse letter by Ms. Duke recommending appellant 

remain out of work until March 10, 2021, and physical therapy notes. 

In duty status reports (Form CA-17) dated March 24, April 28, and September 19 2021, an 

unknown provider indicated that appellant was capable of returning to work with restrictions.

On July 21, 2021 appellant refused an offer of part-time modified-duty work performing 

close out procedures.

On August 9, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

March 4, 2021 decision. 

OWCP thereafter received CA-17 form reports dated June 22 and September 28, 2021 by 

an unknown provider who released appellant to return to work with restrictions. 

By decision dated October 28, 2021, OWCP denied modification of its March 4, 2021 

decision.

On December 9, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

October 28, 2021 decision via an appeal request form.

By decision dated February 11, 2022, OWCP denied appellant’s request for 

reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), finding that her request 

for reconsideration neither raised substantial legal questions, nor included new or relevant 

evidence.

LEGAL PRECEDENT

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

matter of right.5 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.6 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.7

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 

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607. 

7

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 (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.
5

considered by OWCP.8 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.9

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 has neither alleged nor demonstrated that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, she has not advanced a relevant legal argument not 

previously considered. Consequently, 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).10

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

The underlying issue on reconsideration is whether she has met her burden of proof to establish 

disability causally related to an accepted employment injury. This is a medical issue which can 

only be addressed by submission of rationalized medical evidence not previously considered.11 

Thus, 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).12

The Board, therefore,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).13

8

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued 

February20, 2020).

9

Id. at § 10.608.

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

11 Y.S., Docket No. 19-1572 (issued March 12, 2020).

12 Supra note 7.

13 The Board notes that the employing establishment issued a Form CA-16. A completed Form CA_16

authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when 

properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay 

for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c);

J.D., Docket No. 22-0286 (issued June 15, 2022);V.S., Docket No. 20-1034 (issued November 25, 2020); J.G., Docket 

No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
6

ORDER

IT IS HEREBY ORDERED THAT the February 11, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 26, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board