United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.M., Appellant

and

U.S. POSTAL SERVICE, SANTA ANA 

PROCESSING & DISTRIBUTION CENTER, 

Santa Ana, CA, Employer

__________________________________________

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Docket No. 22-0327

Issued: August 29, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 27, 2021 appellant filed a timely appeal from a December 3, 2021 nonmerit 

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

elapsed from the last OWCP merit decision dated June 2, 2021, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of the claim.

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).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 21, 2017 appellant, then a 59-year-old lead clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he sustained right shoulder and low back injuries while

trying to pull out a tray holder from a rack while in the performance of duty. He stopped work on 

May 23, 2017 and returned to full-time light-duty work on August 15, 2017. 

OWCP accepted the claim for unspecified sprain of right shoulder joint, strain of the 

muscles and tendons of the right rotator cuff, lumbar sprain, and strain of muscles and tendons of 

the lower back. It paid him wage-loss compensation on the supplemental rolls from July 7 through 

August 11, 2017.

In a report dated November 9, 2017, Dr. Basimah Khulusi, a Board-certified physiatrist,

related that appellant sustained a lumbar sprain on May 21, 2017 when he was pulling a tray out 

from a rack. She explained that appellant’s low back sprain resulted in weakness of the ligaments, 

which together with increased pressure on the intradiscal space, led to aggravation of the 

displacement of the discs at L3-5. Dr. Khulusi further related that the displaced discs ended up 

crowding the limited space in the spinal canal and neural foramina, and overcrowding of nerve 

roots, which led to an aggravation of appellant’s lumbar stenosis. She opined that appellant should 

be maintained on work restrictions indefinitely.

In a November 10, 2017 report, Dr. James T. Tran, a Board-certified internist, noted 

appellant’s history of injury and treatment. He requested that acceptance of appellant’s claim be 

expanded to included spinal stenosis of lumbar region with neurogenic claudication; lumbar disc 

degeneration, permanent aggravation; lumbar disc displacement; connective tissue and disc 

stenosis of intervertebral foramina of lumbar region; osseous stenosis of neural canal of lumbar 

region; and intervertebral disc stenosis of neural canal of lumbar region. Dr. Tran provided a 

mechanism of injury attributed to appellant’s work as a clerk and explained that the May 21, 2017 

work injury caused flexion and twisting of the lumbosacral spine and caused force and exertion 

and disengagement of the facet joints in the lumbar spine at L2-3, L3-4, L4-5, L5-S1. He opined 

that the May 21, 2017 work injury caused permanent aggravation of disc bulges at L4-5, L5-S1,

with lumbar spinal stenosis at L2-3, L3-4, and L4-5, resulting in low back and leg pain. Dr. Tran 

completed a duty status report (Form CA-17) on November 27, 2017 and requested modified duty.

On February 11, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions, for a second opinion examination with Dr. MichaelJ. Einbund, 

a Board-certified orthopedic surgeon. It requested that Dr. Einbund evaluate whether appellant 

continued to have residuals or disability due to the accepted May 21, 2017 employment injury.

OWCP also requested that Dr. Einbund address whether appellant had any other conditions 

causally related to the accepted employment injury. It noted that lumbar stenosis, as well as right 

shoulder impingement syndrome with subacrominal bursitis and joint arthrosis had also been 

diagnosed. 

In a March 1, 2019 report, Dr. Einbund noted appellant’s history of injury and medical

treatment. He found that appellant currently had no right shoulder pain, but that he had complaints 

of numbness in the right long and ring fingers. Dr. Einbund noted that appellant’s May 27, 2017 

magnetic resonance imaging(MRI) scan revealed a full-thickness tear of the rotator cuff, otherwise 
3

the findings were normal. He noted that appellant had constant dull and aching pain in the low 

back that increased with bending, prolonged sitting, and standing and that an MRI scan of the low 

back revealed degeneration disc bulges, stenosis, and retrolisthesis. Dr. Einbund diagnosed right 

shoulder sprain, improved; right shoulder rotator cuff tear, asymptomatic; lumbar spine sprain, 

improved.

With regard to the right shoulder, Dr. Einbund noted that rotator cuff tears were commonly 

seen in appellant’s age demographic and the May 21, 2017 initial examination by Dr. Gary 

Linnermann, a Board-certified family practitioner, which revealed very benign findings with an 

essentially normal examination. He explained that, if there had been an acute full-thickness tear, 

there would have been significant abnormal findings on the first examination. Dr. Einbund opined 

that “the temporary aggravation injury has ceased noting he no longer experiences any symptoms 

or clinical findings. The aggravation injury ceased on or about August 2017, when the record 

reflects resolution of his subjective symptoms.” Dr. Einbund explained that the normal 

examination findings and lack of subjective complaints did not support an active diagnosis of right 

shoulder impingement syndrome, subacromial bursitis, or acromioclavicular (A/C) joint arthrosis.

With regard to the lumbar spine, Dr. Einbund noted that appellant had underlying 

degeneration of the lumbar spine with associated disc bulges, canal stenosis and retrolisthesis that 

were non-industrial in nature. He opined that there was no evidence of aggravation due to the 

work injury and explained that the “noted changes are of a chronic nature and would not have 

developed within a week of the incident when the MRI scan was obtained.” Dr. Einbund noted 

that appellant’s present symptoms were preexisting, there was no indication the underlying lumbar 

spine condition had been aggravated, that appellant’s neurological findings were within normal 

limits, and there was no material change. He explained the minor findings on examination, 

including limited range of motion (ROM) of the lumbar spine, were due to appellant’s preexisting 

degenerative conditions. Dr. Einbund opined that appellant had nonindustrial lumbar spine 

degeneration, disc bulges, stenosis, and retrolisthesis, that there was no aggravation to the lumbar 

spine and no permanent aggravation, and that the work-related injuries had resolved. He advised 

that appellant no longer required active medical treatment and was capable of performing his dateof-injury job.

On April 18, 2019 OWCP issued a notice of proposed termination of appellant’s wage-loss 

compensation and medical benefits based on the March 1, 2019 second opinion examination report 

from Dr. Einbund, which related that the accepted conditions had resolved without residuals or 

disability. It afforded appellant 30 days to submit additional evidence or argument challenging 

the proposed termination.

In a May 9, 2019 report, Dr. Khulusi, related that she had reviewed and found flaws in

Dr. Einbund’s report. In particular, she noted that Dr. Einbund opined that appellant’s lumbar 

spine sprain had improved, but did not indicate that it had resolved. Dr. Khulusi noted that

Dr. Einbund indicated that appellant’s lumbar spine sprain was a temporary aggravation injury, 

and also that, “[t]here has not been any aggravation injury related to the lumbar spine.” She opined 

that Dr. Einbund contradicted himself. Dr. Khulusi also noted that Dr. Tran provided a 

November 10, 2017 report that detailed the mechanism of injury and advised that the acceptance 

of appellant’s claim should be expanded to include lumbar disc displacement and aggravation of 
4

lumbar spinal stenosis as a result of the lumbar sprain. She also related appellant’s modified-duty 

work restrictions.

By decision dated June 21, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective June 21, 2019. It found that the weight of medical evidence rested 

with the second opinion report of Dr. Einbund and established that appellant had no residuals 

related to his accepted work-related injury and no continuing disability from work.

On July 25, 2019 appellant requested reconsideration and submitted a July 18, 2019 report 

from Dr. Khulusi. Dr. Khulusi opined that OWCP ignored the opinions of appellant’s treating 

physicians, one of whom was a neurosurgeon specializing in spine conditions. She also indicated 

that there was a conflict in the medical opinion evidence with the second opinion physician, 

warranting a referral for an impartial medical examination.

By decision dated October 23, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of his claim, pursuant to 5 U.S.C. § 8128(a). It noted that there was no conflict of 

medical opinion as the opinions of appellant’s treating physicians, Dr. Khulusi and Dr. Tran, were 

not well-rationalized and were conclusory in nature.

On April 9, 2020 appellant requested reconsideration and submitted an April 2, 2020 report 

from Dr. Khulusi. In this report, Dr. Khulusi opined that Dr. Einbund’s opinion was biased, not 

based on an accurate history, unrationalized, and should not be given probative value. She noted 

that Dr. Einbund opined that appellant’s lumbar findings on examination would not have 

developed within a week of the incident, when the MRI scan was obtained. Dr. Khulski further 

noted that in another part of his report Dr. Einbund discussed appellant’s MRI scan of the lumbar 

spine and that the radiologist reported, “there is marrow edema at the posterior endplate of L4-L5, 

likely MODIC type I changed related to acute alteration of biomechanics.” (Emphasis in the 

original.) Dr. Khulusi explained that the objective results of the MRI scan showed acute injury at 

the L4-L5 level caused by alteration of biomechanics that happened about six days prior to the 

MRI scan when appellant was injured on May 21, 2017.2 She noted that Dr. Einbund ignored 

these findings. Dr. Khulusi further noted that Dr. Einbund found that appellant had a normal gait, 

which was contradicted by his finding that appellant had difficulty with heel walking and toe 

walking, and that Dr. Einbund failed to provide any muscle tests. She explained that “not being 

able to walk on his tiptoes and heels” was “not within normal limits” and raised a concern that 

appellant had motor weakness; however, Dr. Einbund did not test the individual muscle groups. 

Dr. Khulusi also noted that Dr. Einbund found that appellant’s examination revealed limited range 

of motion, which contradicted his opinion that appellant had a normal neurologic examination. 

She requested that OWCP expand acceptance of appellant’s claim to include permanent 

2 Dr. Khulusi indicated 2019, but it appears to be a typographical error as she is describing the May 21, 2017 

employment injury.
5

aggravation of lumbar disc displacement as a result of lumbar sprain, and permanent aggravation 

of lumbar spinal stenosis as a result of the lumbar sprain and lumbar disc displacement. (rd 4/9/20)

By decision dated June 26, 2020, OWCP denied modification of its June 21, 2019 decision.

On May 21, 2021 appellant requested reconsideration and submitted new evidence.

In an August 24, 2020 report, Dr. Khulusi reiterated that the report of Dr. Einbund was 

insufficiently rationalized to carry the weight of the evidence. He explained that Dr. Einbund 

made a mistake and disregarded the accepted conditions. Dr. Khulusi repeated his request that 

OWCP accept the additional conditions of lumbar disc displacement as a result of lumbar sprain 

and aggravation of lumbar spinal stenosis.

By decision dated June 2, 2021, OWCP denied modification of the June 26, 2020 decision. 

It found that Dr. Khulusi’s reports were not sufficiently rationalized to overcome the weight of the 

evidence as represented by the second physician opinion of Dr. Einbund.

On September 8, 2021 appellant requested reconsideration and submitted new evidence 

from Dr. Khulusi.

In a report dated August 25 2021, Dr. Khulusi argued that OWCP made legal errors in the 

handling of the claim. She noted that OWCP developed the claim regarding the aggravation of 

lumbar stenosis and that Dr. Einbund opined that the lumbar spine degeneration was nonindustrial 

and there was no aggravation injury related to the lumbar spine. Dr. Khulusi argued that OWCP 

should have issued a decision regarding the acceptance or denial of the additional claimed 

conditions. She quoted the Federal (FECA) Procedure Manual, Part 2, Chapter 2.0806, paragraph 

4a, which states “If all claimed conditions have been developed and the evidence of record supports 

acceptance of some but not all of the conditions claimed, the [claims examiner] CE should issue 

an acceptance letter for the compensable conditions and issue a formal decision with appeal rights 

denying the remaining claimed conditions.

3

 Dr. Khulusi argued that OWCP hurried and 

terminated the patient’s claim without doing what was legally required.

By decision dated December 3, 2021, 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 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 argument which: (1) shows that OWCP erroneously applied or interpreted a 

3 Federal (FECA) Procedure Manual, Part 2 --Claims, Initial Acceptances,Chapter 2.0806.4a (September 2020).

4

5 U.S.C. § 8128(a); see R.G., Docket No. 21-1098 (issued March 28, 2022); T.K., Docket No. 19-1700 (issued 

April 30, 2020); L.D., Docket No. 18-1468 (issued February 11, 2019); W.C., 59 ECAB 372 (2008).
6

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 properly denied appellant’s request for reconsideration of the 

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

Appellant has not shown that OWCP erroneously applied or interpreted a specific point of 

law. Dr. Khulsi argued that OWCP did not follow its procedures as itshould have issued a formal 

letter of denial and appeal rights regarding appellant’s request for expansion of the claim. The 

Board finds that this argument is cumulative and duplicative of previous arguments. The Board 

has held that evidence or argument that repeats or duplicates evidence previously of record has no 

evidentiary value and does not constitute a basis for reopening a case. 9

The underlying issue on appeal is whether OWCP properly terminated appellant’s wageloss and medical benefits for the accepted conditions. Dr. Khulusi’s disagreement with OWCP’s 

acceptance of the claim for lumbar strain caused by the work injury on May 21, 2017,fails to show 

that OWCP erroneously applied or interpreted a specific point of law when it subsequently 

terminated appellant’s wage-loss compensation and benefits, effective June 21, 2019. The Board 

has held that the submission of evidence or argument which does not address the particular issue 

involved does not constitute a basis for reopening a case.10 As the reconsideration request failed 

to show that OWCP erroneously applied or interpreted a specific point of law, appellant is not 

5

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); 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.

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.

7

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

9 C.L., Docket No. 20-0410 (issued October 29, 2020); M.G., Docket No. 18-0654 (issued October 17, 2018); D.K.,

59 ECAB 141 (2007); Kenneth R. Mroczkowki, 40 ECAB 855 (1989); EugeneF. Butler, 36 ECAB 393 (1984).

10 R.G., supra note 4; L.M., Docket No. 20-0315 (issued October 8, 2021); A.J., Docket No. 20-0926 (issued 

January 26, 2021); JimmyO. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).
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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).11

The Board further finds that appellant did not submit relevant and pertinent new evidence 

in support of his reconsideration request. The August 25, 2021 report from Dr. Khulusi was new, 

however it repeated and reiterated information in her prior reports which had previously been 

considered by OWCP. As previously noted, evidence or argument that repeats or duplicates 

evidence previously of record has no evidentiary value and does not constitute a basis for 

reopening a case.12 No other relevant and pertinent new evidence was submitted. As appellant 

failed to provide relevant and pertinent new evidence, he is not entitled to a merit review based on 

the third requirement under 20 C.F.R. § 10.606(b)(3).13

The Board, accordingly, finds that appellant did not meet 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 his claim, pursuant to 5 U.S.C. § 8128(a).

11 20 C.F.R. § 10.608(b); see B.S., supranote 8; E.R., supra note 8.

12 See L.W., Docket No. 21-0789 (issued March 25, 2022); C.L., supranote 9; M.G., supranote 9; D.K.,supranote 

9; Kenneth R. Mroczkowki,supranote 9; Eugene F. Butler, supra note 9.

13 See S.A., Docket No. 21-0813 (issued December 27, 2021); E.V., Docket No. 16-0080 (issued June 21, 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 29, 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