United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Piscataway, NJ, Employer

__________________________________________

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Docket No. 20-1371

Issued: March 12, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, 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 1, 2020 appellant, through counsel, filed a timely appeal from an April 8, 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 July 17, 2019, 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 April 8, 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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On October 17, 2016 appellant, then a 48-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on October 14, 2016 she sustained multiple injuries when 

her vehicle was hit head on as she was waiting to make a left turn while in the performance of 

duty. OWCP accepted the claim for facial laceration, sprain/strain of neck, lumbar sprain, and 

contusion of the left knee. It expanded acceptance of appellant’s claim to include right shoulder 

labral tear, right carpal tunnel syndrome, left knee lateral meniscus tear, bulging disc at L4-5 with 

radiculopathy, and cervical disc displacement at C4-5, C5-6, and C6-7. 

On June 5, 2017 Dr. Robert Greenblum, a Board-certified orthopedic surgeon, performed 

authorized left knee arthroscopy, partial lateral meniscectomy, major synovectomy, and 

chondroplasty of the lateral tibial plateau. He diagnosed complex tear of body and posterior horn 

of lateral meniscus, diffuse synovitis, chondromalacia grade I to II medial tibial plateau and 

trochlea and grade II to III lateral tibial plateau, and arthropathy of the left lower extremity with 

degenerative osteoarthritis of the left knee.

On August 1, 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. Timothy 

Henderson, a Board-certified orthopedic surgeon, to determine the extent of her work-related 

injuries, work tolerance limitations, and treatment recommendations. 

In a September 13, 2017 report, Dr. Henderson diagnosed cervical neck sprain with disc 

herniation at C5-6, C6-7, right shoulder sprain, lumbar back sprain with disc herniation at L4-5, 

and left knee internal derangement with tear of the lateral meniscus. He opined that appellant had 

residuals of the accepted conditions, which precluded her from performing the duties of a city 

carrier assistant. Dr. Henderson further noted that she was not capable of performing any work at 

this time secondary to her multiple injuries. He recommended that appellant continue an additional 

two months of physical therapy three times a week, use anti-inflammatories, and be reevaluated in 

three months. In a work capacity evaluation (Form OWCP-5c) Dr. Henderson noted that she was 

unable to return to work and had not reached maximum medical improvement (MMI).

On October 13, 2017 appellant’s physician requested authorization for a transforaminal 

epidural injection into the cervical region.

On October 16, 2017 OWCP requested that Dr. Henderson address whether appellant’s 

request for authorization of interlinear cervical/thoracic injection, epidurography, and fluoroguide 

spinal injection were medically necessary and causally related to her accepted work injury.

In an October 24, 2017 supplemental report, Dr. Henderson opined that based upon his 

previous physical examination and review of the medical evidence the requested procedures were 

not medically necessary or causally related to the accepted work injury and conditions. 
3

On November 16, 2017 appellant’s physician requested authorization for a transforaminal 

epidural injection into the lumbar/sacral region.

By decision dated January 23, 2018, OWCP denied authorization for lumbar and cervical 

spine injections finding that the evidence of record did not support that they were medically 

necessary to address the effects of the work-related injury.

On March 20, 2018 OWCP requested a supplemental opinion from Dr. Henderson. On 

April 2, 2018 OWCP referred appellant for a second opinion examination, along with a SOAF, a 

series of questions, and the medical record to Dr. Andrew Farber, an osteopath and Board-certified 

orthopedic surgeon, to determine the extent of her work-related injuries, work tolerance 

limitations, and treatment recommendations. 

In an April 23, 2018 report, Dr. Farber diagnosed neck sprain, lumbar sprain, and status 

post left knee arthroscopy. He noted subjective complaints of pain and radicular symptoms in the 

neck and back, however, there was no objective evidence of restricted range of motion, weakness, 

radiculopathy, or neurologic compromise. Dr. Farber noted that based on his physical examination 

appellant did not have residuals related to the surgery performed on June 5, 2016. He opined that 

she could return to work full-time full duty and did not require further treatment with regard to the 

neck and back. In a Form OWCP-5c Dr. Farber indicated that appellant reached MMI and could 

return to regular duty.

On July 17, 2018

4 OWCP request clarification from Dr. Farber. It requested that he 

address whether the accepted conditions had resolved, specifically the facial laceration, neck 

sprain, lumbar sprain, contusion of the left knee, right shoulder labral tear, right upper limb carpal 

tunnel syndrome, left knee lateral meniscus tear, bulging disc at L4-5 with radiculopathy and 

cervical disc displacement at C4-5, C5-6, and C6-7.

In a report dated July 19, 2018, Dr. Farber opined that all of the accepted work conditions 

were resolved without residuals and appellant could return to work full-time full duty.

On December 17, 2018 OWCP notified appellant that it proposed to terminate her wageloss compensation and medical benefits as the weight of the medical evidence, represented by the 

reports of Dr. Farber, established that she no longer had continued disability from work as a result 

of her accepted employment injury.5 It afforded her 30 days to submit additional evidence or 

argument if she disagreed with the proposed action.

Dr. Nancy Speez, Board-certified in physical medicine and rehabilitation, on March 14, 

2018, diagnosed cervical disc displacement and myofascial pain and requested authorization for 

trigger point injections.

On June 20, 2018 appellant was evaluated by Dr. Daniel Rothstein, Board-certified in 

anesthesiology, who diagnosed lumbalgia, lumbar and cervical radiculopathy, lumbar and cervical 

disc herniation, lumbar and cervical facet syndrome, cervicalgia, and cervical radiculopathy. He 

opined that appellant continued to have severe debilitating low back pain with radiation into the 

 

4 OWCP noted the date of the letter as July 17, 2017; however, this appears to be a typographical error.

5 OWCP listed Dr. Sean Lager as the second opinion physician; however, this was a typographical error.
4

lower extremities secondary to lumbar radiculopathy. Dr. Rothstein recommended bilateral 

transforaminal epidural steroid injections. 

On January 7, 2019 appellant through counsel objected to the notice of proposed 

termination and asserted that she continued to have residuals of her accepted conditions. She 

indicated that Dr. Farber did not refer to all of the accepted conditions in his reports and noted that 

his findings were contradicted by the prior second opinion physician, Dr. Henderson. Appellant 

further asserted that she was sent to Dr. Henderson for a reexamination, but she was examined by

Dr. Farber which she found to be irregular.

On February 6, 2019 the medical examination scheduler for OWCP, Mitchell MCN, 

reported that Dr. Henderson left his prior practice and was no longer performing referral 

examinations as of February 19, 2018. They received an OWCP referral for reexamination on 

March 30, 2018 and advised that Dr. Farber would be a suitable substitute for Dr. Henderson.

By decision dated February 7, 2019, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective February 8, 2019, finding that the reports from

Dr. Farber constituted the weight of the medical evidence and established that she was capable of 

performing the physical requirements of her date-of-injury position. 

On January 30, 2019, Dr. Joseph F. Altongy, a Board-certified orthopedist, treated 

appellant for injuries sustained in a motor vehicle accident at work. He presented with persistent 

pain in her lower back and left knee. Dr. Altongy diagnosed cervical and lumbar disc 

displacement, cervical and lumbar radiculopathy, cervical and lumbar facet syndrome, 

sprain/strain of the right shoulder, contusion of the right shoulder and left knee, right shoulder 

impingement, chondromalacia of the left patella, and effusion of the left knee. He advised that 

continued evaluation of the lumbar spine and left knee was medically necessary and recommended 

a new magnetic resonance imaging scan of the lumbar spine and left knee.

On February 14, 2019 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review A hearing was held on June 3, 2019. 

By decision dated July 17, 2019, an OWCP hearing representative affirmed the decision 

dated February 7, 2019.

On April 3, 2020 appellant requested reconsideration. She contended that OWCP 

improperly relied on the reports of Dr. Farber to terminate her benefits noting that he was “a regular 

second opinion doctor for OWCP.” Appellant further indicated that his report contradicted the 

initial second opinion physician’s findings. In support of her request, she resubmitted reports from

Dr. Henderson dated September 13 and October 24, 2017 and Dr. Altongy dated January 30, 2019, 

previously of record. 

By decision dated April 8, 2020, OWCP denied appellant’s request for reconsideration of 

the merits of her claim.
5

LEGAL PRECEDENT

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

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 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.8

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 

considered by OWCP.9 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.10

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). 

In support of her request for reconsideration, appellant, through counsel, reiterated 

arguments that OWCP had improperly terminated her wage-loss compensation and medical 

benefits based on reports from Dr. Farber who contradicted the reports of Dr. Henderson, the first 

second opinion physician. However, this argument was duplicative of an argument previously of 

record and therefore does not constitute a basis for reopening the case.11 Appellant further asserted 

that Dr. Farber was “a regular second opinion doctor for OWCP.” She did not show that OWCP 

erroneously applied or interpreted a specific point of law, and did not advance a relevant legal 

argument not previously considered by OWCP. Consequently, appellant is not entitled to further 

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).12

 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.607.

8

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). Id. at Chapter 2.1602.4b.

9

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

10 Id. at § 10.608.

11 See B.O., Docket No. 20-0156 (issued May 13, 2010).

12 20 C.F.R. § 10.606(b)(3); see D.S., Docket No. 18-0353 (issued February 18, 2020).
6

The underlying issue in this case is medical in nature, however, appellant did not submit 

any relevant and pertinent new medical evidence with her April 3, 2020 request for 

reconsideration.

Appellant resubmitted the reports from Dr. Henderson dated September 13 and 

October 24, 2017 and Dr. Altongy dated January 30, 2019. As these reports repeat evidence 

already in the case record, they are cumulative and do not constitute relevant and pertinent new 

evidence. Providing additional evidence that either repeats or duplicates information already in 

the record does not constitute a basis for reopening a claim.13 Therefore, it is insufficient to require 

OWCP to reopen the claim for consideration of the merits. Because appellant has not provided

relevant and pertinent new evidence, she was not entitled to a review of the merits based on the 

third requirement under section 10.606(b)(3).14

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

14 See 20 C.F.R. § 10.606(b)(3)(iii).
7

ORDER

IT IS HEREBY ORDERED THAT the April 8, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 12, 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