United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer

__________________________________________

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Docket No. 20-1180

Issued: January 29, 2021

Appearances: Case Submitted on the Record

Whitney Gage, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On May 12, 2020 appellant, through counsel, filed a timely appeal from a November 18, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated November 8, 2018, 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.

 

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.
2

ISSUE

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

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

FACTUAL HISTORY

On December 26, 2015 appellant, then a 59-year-old tractor trailer operator, filed a 

traumatic injury claim (Form CA-1) alleging that on December 24, 2015 he suffered a lower 

back/lumbar spine injury when attempting to open the roll-up door of his trailer standing on a 

scissor lift while in the performance of duty. On the reverse side of the claim form the employing 

establishment acknowledged that appellant was injured in the performance of duty. Appellant 

stopped work on December 25, 2015. 

In support of his claim, appellant submitted a computerized tomography (CT) scan of his 

lumbar spine, dated December 24, 2015, which revealed degenerative changes and multilevel 

lumbar stenosis. He further submitted hospital discharge instructions and a work excuse note of 

even date.

In a December 28, 2015 duty status report (Form CA-17), Dr. John Ferro, a chiropractor,

diagnosed lumbar disc injury and right shoulder rotator cuff injury and listed appellant’s work 

restrictions. 

In a development letter dated January 14, 2016, OWCP informed appellant that the 

evidence of record was insufficient to establish his claim. It advised him of the type of factual and 

medical evidence needed and provided a questionnaire for his completion. OWCP afforded 

appellant 30 days to submit the necessary evidence. 

OWCP subsequently received an authorization for examination and/or treatment (Form 

CA-16), dated December 26, 2015, in which the employing establishment authorized appellant to 

seek medical care for a sprain to the lower back/lumbar area. 

In an undated statement, appellant indicated that after his December 24, 2015 injury, he 

was taken to the hospital and subsequently discharged under heavy medication. On or about 

December 27, he began to feel substantial pain in his upper right arm and shoulder area. Appellant 

was examined by a doctor on December 28, 2016, for back and shoulder injuries. He indicated 

that he omitted the shoulder injury from his Form CA-1 because he had not felt that pain until after 

the medication he received at the emergency department wore off.

A magnetic resonance imaging (MRI) scan of appellant’s right shoulder, dated January 13, 

2016, demonstrated rotator cuff impingement, partial tear of the acromioclavicular ligament, and 

partial tears involving the distal supraspinatus, infraspinatus, and subscapularis tendons.

On January 19, 2016 appellant responded to OWCP’s development questionnaire noting

that he was standing on a scissor lift when he injured his lower back and right shoulder while 

attempting to lift a trailer door weighing approximately 500 pounds. He indicated that he had 

suffered from back pain before, but did not require heavy medication or time off from work.
3

Appellant submitted progress notes from Dr. Ferro, dated December 28, 2015 through

January 25, 2016, who examined appellant and diagnosed lumbar spine sprain, right shoulder 

sprain, and intervertebral disc disorders with radiculopathy.

By decision dated February 17, 2016, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish causal relationship between his diagnosed 

conditions and the accepted December 24, 2015 employment incident. 

On February 22, 2016 appellant requested an oral hearing before OWCP’s Branch of 

Hearings and Review.

OWCP subsequently received January 27 and February 10, 2016 reports from Dr. Julian 

Cameron, a Board-certified orthopedic surgeon, who examined appellant and diagnosed right 

shoulder arthralgia with partial rotator cuff tear, acute impingement syndrome, L5-S1 disc 

herniation, and nonradicular lumbago. 

In progress notes dated February 16 and 18, 2016, Dr. Ferro examined appellant and 

diagnosed lumbar spine sprain, right shoulder sprain, and intervertebral disc disorders with 

radiculopathy. 

In a February 23, 2016 report, Dr. Fausto Castillo, a specialist in family medicine, noted 

that appellant lifted a truck door on December 24, 2015 and felt a sharp pain in his lower back. 

He examined appellant and diagnosed right shoulder rotator cuff injury, partial tear of the 

infraspinatus tendon, extensive tear of the supraspinatus tendon, disc bulging at L3-4 and L4-5, 

and central stenosis. Dr. Castillo opined that appellant’s conditions were work related. 

In March 3, 2016 statements, Z.A. and R.H., appellant’s coworkers, corroborated his

account of the employment incident. 

Appellant submitted diagnostic testing, including a March 3, 2016 nerve conduction 

velocity study, and an April 27, 2016 MRI scan of his lumbar spine. He also submitted physical 

therapy treatment notes, dated April 6, 2016.

OWCP received an April 6, 2016 psychotherapy progress note from Dr. Francisco 

Martinez-Mesa, Psy.D., a licensed neuropsychologist. 

In a letter dated May 17, 2016, Dr. Christopher Woodman, Ph.D., a clinical psychologist, 

noted that appellant was suffering from high levels of depression and anxiety. He indicated that 

appellant was fearful and anxious of exacerbating his physical pain and further injuring his back. 

Dr. Woodman diagnosed major depression and anxiety. 

In a September 23, 2016 report, Dr. Castillo noted appellant’s medical history and 

described the employment incident. He diagnosed insomnia, lower back muscle spasm, lumbar 

spine sprain, persistent mood affective disorders, right shoulder sprain, right arm strain, lower back 

strain, right shoulder strain, left shoulder rotator cuff injury, right shoulder rotator cuff injury, and 

adjustment disorder with mixed anxiety and depressed mood. Dr. Castillo opined that appellant’s 

conditions were caused by factors of his federal employment, including excessive and repetitive 

lifting, pushing, pulling, carrying, twisting, bending, sorting, and casing parcels, bins, letters, and 
4

trays. He also attributed the conditions to appellant’s repetitious and continuous standing, walking, 

and reaching while working five to six days per week. 

OWCP received partially legible Form CA-17 reports from Dr. Castillo, dated February 23

through August 16, 2016, who provided diagnoses and listed appellant’s work restrictions.

A telephonic hearing was held on October 17, 2016.

By decision dated January 5, 2017, OWCP’s hearing representative affirmed the 

February 17, 2016 decision. 

On March 21, 2017 appellant requested reconsideration. 

In support of his request, appellant submitted a March 15, 2017 report from Dr. Erick 

Salado, a specialist in family medicine, who noted that appellant was injured on December 25, 

2015 while lifting a tractor-trailer door. He reviewed appellant’s medical records and diagnosed 

right shoulder ankylosis, right shoulder disorder, rotator cuff tear, right shoulder impingement, 

right shoulder traumatic arthropathy, lumbar disc disorder, traumatic spondylopathy of the 

lumbosacral region, bone hypertrophy at multiple sites, back muscle spasm, and lumbar spine 

sprain. Dr. Salado opined that appellant’s conditions were caused by his job duties which were 

excessively repetitious.

In reports dated March 21 and May 19, 2017, Dr. Castillo opined that appellant’s conditions 

were caused by the December 24, 2015 employment incident. He found that appellant’s conditions 

resulted from acute trauma when he used excessive force to push a trailer door upwards, which 

applied force to his lumbar spine and right shoulder.

By decision dated June 19, 2017, OWCP denied modification of its January 5, 2017 

decision.

OWCP subsequently received form reports from Dr. Castillo, dated February 23 through 

July 19, 2016. Dr. Castillo provided diagnoses and checked boxes marked “Yes” to indicate that 

appellant’s conditions were work related. 

In an August 2, 2017 report, Dr. Stuart Krost, a Board-certified specialist in physical 

medicine and rehabilitation, described the employment incident and reviewed appellant’s medical 

history. He examined appellant and diagnosed right rotator cuff injury, mechanical low back pain, 

lumbar facet arthropathy, lumbar disc herniation, and muscle spasm. Dr. Krost opined that 

appellant’s conditions were work related and placed him off work. 

In a letter dated August 3, 2017, Dr. Castillo confirmed that he was treating appellant and 

noted that he was unable to perform his work duties. 

On August 30, 2017 appellant requested reconsideration. 

OWCP subsequently received form reports and partially legible Form CA-17 reports from

Dr. Castillo, dated January 19 through July 19, 2017, who provided diagnoses, indicated that 

appellant’s conditions were work related, and listed his work restrictions. 
5

In a September 25, 2017 report, Dr. Castillo clarified that appellant’s conditions were 

caused by the December 24, 2015 employment incident and that he did not have any significant 

lumbar injuries prior to the incident. He noted appellant’s medical history and provided objective 

findings. Dr. Castillo diagnosed lumbar disc disorder with radiculopathy, right shoulder traumatic 

arthropathy, right shoulder bursitis, nerve root injury of the lumbar spine, right shoulder 

impingement syndrome, right shoulder rotator cuff tear, adjustment insomnia, and traumatic 

spondylopathy. He opined that the excessive force and movement used to lift a trailer door caused 

appellant’s right shoulder and lower back conditions. Dr. Castillo further opined that the 

employment incident was the sole contributor to appellant’s conditions. 

By decision dated November 27, 2017, OWCP denied modification of the June 19, 2017 

decision. 

On September 12, 2018 appellant requested reconsideration and resubmitted an August 2, 

2017 report from Dr. Krost. 

By decision dated November 8, 2018, OWCP denied modification of its November 27, 

2017 decision.

On November 7, 2019 appellant, through counsel, requested reconsideration and submitted 

a November 6, 2019 report from Dr. Kevin Kessler, a Board-certified orthopedic surgeon, who 

reviewed x-rays of appellant’s right shoulder and lumbar spine. Dr. Kessler diagnosed spasm of 

the back muscles, right shoulder impingement syndrome, right shoulder subacromial bursitis, and 

degeneration of the lumbar intervertebral disc. 

By decision dated November 18, 2019, OWCP denied appellant’s request for 

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

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.3

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.4

 

3 5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

4 20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569 

(issued December 9, 2008).
6

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

Appellant’s timely November 7, 2019 request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally, 

the Board finds that he did not advance a relevant legal argument not previously considered by 

OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based 

on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

With his request for reconsideration, appellant submitted a November 6, 2019 report from

Dr. Kessler who diagnosed spasm of the back muscles, right shoulder impingement syndrome, 

right shoulder subacromial bursitis, and degeneration of the lumbar intervertebral disc. However,

Dr. Kessler failed to identify the employment incident or provide any history of injury. His report 

further failed to provide an opinion on causal relationship and is therefore irrelevant to the 

underlying issue.

8

 The Board has held that the submission of evidence that does not address the 

particular issue involved does not constitute a basis for reopening a case.9 As such, appellant is 

not entitled to further review of the merits of his claim based on the third above-noted requirement 

under 20 C.F.R. § 10.606(b)(3).10

The Board accordingly finds that OWCP properly determined that appellant was not 

entitled to further review of the merits of his claim pursuant to any of the three requirements under 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.11

 

5

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020).

6

Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see J.V., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

8

Id.

9 See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. 

Nixon-Steward, 52 ECB 140 (2000).

10 Supra note 4 at § 10.606(b)(3).

11 See C.M., Docket No. 19-1610 (issued October 27, 2020); A.K., Docket No. 09-2032 (issued August 3, 2010); 

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet 

at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits).
7

CONCLUSION

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

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

12

ORDER

IT IS HEREBY ORDERED THAT the November 18, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

12 The Board notes that the employing establishment issued a Form CA-16, dated December 26, 2015. 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.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).