United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Tooele, UT, Employer

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Docket No. 20-1617

Issued: July 15, 2022

Appearances: Case Submitted on the Record

David J. Holdsworth, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On September 3, 2020 appellant, through counsel, filed a timely appeal from a June 1, 2020 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than 

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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, he asserted, through counsel, that oral argument should be granted 

because OWCP’s delay in processing his claim for reconsideration placed his claim outside the one-year time 

limitation under 5 U.S.C. § 8128(a) for obtaining a merit review. Appellant also contended that OWCP erred by 

according to the opinion of an impartial medical specialist the special weight of the medical evidence as it was 

speculative and based upon an incomplete medical history. The Board, in exercising its discretion, denies appellant’s 

request for oral argument because the Board does not have jurisdiction over the merits of this case. As such, arguments 

on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal 

would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request 

is denied and this decision is based on the case record as submitted to the Board.
2

180 days elapsed from OWCP’s last merit decision, dated May 30, 2019, to the filing of this 

appeal, pursuant to the Federal Employees’Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction over the merits of this case. 4

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 March 10, 2016 appellant, then a 45-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that on or before December 2, 2015 he sustained left shoulder 

and low back conditions due to factors of his federal employment, including repetitive lifting, 

bending, stooping, reaching, and climbing in and out of a delivery vehicle.

In a June 8, 2016 report, Dr. Javier Chavez, a Board-certified obstetrician and 

gynecologist, opined that strenuous repetitive lifting, pulling, pushing, overhead reaching, and 

grasping while in the performance of duty had aggravated appellant’s preexisting lumbar 

conditions and caused new left shoulder conditions. He diagnosed lumbar radiculitis, a herniated 

lumbar disc, left shoulder impingement, and a left shoulder superior labrum anterior posterior 

lesion. 

On September 6, 2016 OWCP referred appellant for a second opinion examination to

Dr. Leslie J. Harris, a Board-certified orthopedic surgeon, who on September 22, 2016 noted 

appellant’s history of a lumbar injury at age 13 in a skiing accident, and a second lumbar injury in 

a June 2015 due to a nonoccupational motor vehicle accident, after which he required work 

restrictions. Dr. Harris reviewed medical records and noted findings on examination. He 

diagnosed left shoulder impingement syndrome, chronic lumbosacral degenerative disc disease 

with multilevel facet arthropathy and foraminal stenosis, and a preexisting left-sided pars defect at 

L5. Dr. Harris opined that repetitive loading activities while in the performance of duty had

probably caused a permanent aggravation of degenerative disc disease, but that the pars defect and 

left shoulder impingement were not work related.5

On October 26, 2016 OWCP accepted the claim for permanent aggravation of 

intervertebral disc degeneration, lumbar region, L2-3, L3-4, and L4-5. It paid appellant wage-loss 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that appellant submitted additional evidence to OWCP following the June 1, 2020 decision. 

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.

5

In a January 10, 2017 supplemental report, Dr. Harris completed a Form OWCP-5c permanently restricting 

appellant to working eight hours a day, with pulling, pushing, and lifting limited to 40 pounds, and twisting, bending, 

and stooping limited to four hours a day. 
3

compensation on the supplemental rolls commencing November 7, 2016. During this period, 

appellant performed modified work for one to two hours a day. 

In reports dated December 28, 2016 and January 17, 2017, Dr. John A. Douglas, an 

osteopath Board-certified in orthopedic surgery, noted appellant’s lumbar pain and provided work 

restrictions.

In a report dated January 24, 2017, Dr. Douglas provided a history of injury and treatment. 

On examination he noted tenderness to palpation of the paraspinal musculature at L1-2 and L2-3 

bilaterally. Dr. Douglas diagnosed a lumbar ligament sprain and lumbar intervertebral disc 

degeneration. He restricted appellant to “office work only ... no delivery,” with pushing, pulling, 

lifting, sitting, walking, standing, reaching limited to four hours, twisting and bending/stooping 

limited to one hour. 

In reports dated January 26, 2017, Dr. Lincoln Holdaway, an osteopath, returned appellant 

to work for four hours a day with restrictions.

In reports dated January 26 through April 5, 2017, Dr. Eric M. Wood, Board-certified in 

family practice and occupational medicine, diagnosed thoracic back pain and unspecified back 

pain. He prescribed medication. Dr. Wood returned appellant to work for four hours a day with 

restrictions. 

In reports dated March 28 and May 9, 2017, Dr. Pam Hansen, Board-certified in physiatry 

and sports medicine, diagnosed lumbar degenerative disc disease, a lumbar disc protrusion, chronic 

back pain, underlying degenerative disc disease, and facet arthropathy. She opined that appellant 

had attained maximum medical improvement. Dr. Hansen limited him to working four hours a 

day with restrictions.

On July 3, 2017 OWCP found that a conflict of medical opinion existed between 

appellant’s treating physicians and Dr. Harris regarding the nature and extent of the accepted 

condition. To resolve the conflict, it referred appellant, the medical record, a series of questions, 

and a statement of accepted facts (SOAF) to Dr. Richard T. Knoebel, a Board-certified orthopedic 

surgeon, for an impartial opinion. 

In a September 20, 2017 report, Dr. Knoebel, serving as the impartial medical examiner 

(IME) opined that the accepted lumbar condition had ceased without residuals. 

In a December 15, 2017 supplemental report, Dr. Knoebel opined that the accepted 

aggravation had not caused permanent impairment. 

In a notice dated March 5, 2018 and finalized April 17, 2018, OWCP terminated 

appellant’s wage-loss compensation and medical benefits, effective April 18, 2018, finding that 

the special weight of the medical evidence rested with Dr. Knoebel’s report. 

On April 26, 2018 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.6 By decision dated July 30, 2018, the hearing representative 

6 Appellant separated from the employing establishment effective July 17, 2018. 
4

reversed the April 17, 2018 termination decision, finding that there had been no conflict of opinion 

between Dr. Harris and appellant’s treating physicians. Dr. Knoebel, therefore, functioned as a 

second opinion physician. The hearing representative found that Dr. Knoebel’s opinion was 

sufficient to create a conflict with the opinions of Drs. Douglas, Hansen, and Wood. The case was 

then remanded for referral to a new IME to resolve the conflict. 

On remand OWCP prepared an updated SOAF and referred it, appellant, and the medical 

record to Dr. Scott Knorpp, a Board-certified physiatrist, for an impartial medical opinion on the 

nature and extent of the accepted conditions. In a January 9, 2019 report, Dr. Knorpp reviewed 

the SOAF and medical record. On examination he found tenderness to palpation along the right 

paraspinal muscles at T12/L1 through L4. Dr. Knorpp noted that unspecified diagnostic studies 

and medical reports had not been made available to him. He diagnosed chronic thoracolumbar 

backache, unrelated to the accepted lumbar condition. Dr. Knorpp opined that appellant could 

return to full, unrestricted duty. 

In a March 26, 2019 letter, appellant, through counsel, contended that Dr. Knorpp’s

opinion was conclusory, and based on an incomplete history as he noted that no diagnostic studies

were made available to him. 

By notice dated April 25, 2019, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits as the accepted condition had ceased without residuals, based 

on Dr. Knorpp’s opinion as the special weight of the medical evidence. It afforded appellant 30 

days to submit additional evidence or argument. In response, counsel submitted a copy of his 

March 26, 2019 letter. 

By decision dated May 30, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date. It accorded the special weight of the medical evidence 

to Dr. Knorpp as the IME. 

On April 1, 2020 appellant, through counsel, requested reconsideration. In a March 25, 

2020 statement, counsel contended that Dr. Knorpp’s opinion could not represent the special 

weight of the medical evidence as it was based on an incomplete medical record since Dr. Knorpp

noted that he did not have diagnostic studies to review. 

Additional evidence was received, including a May 15, 2017 report, wherein Dr. Charles 

Smith, an osteopathic physician, noted a three-year history of lumbar pain. He diagnosed lumbar 

disc degeneration from L2 through S1 and nerve root impingement at multiple levels. Dr. Smith 

recommended a surgical evaluation. 

In a December 19, 2018 report, Dr. David W. Stevens, a Board-certified orthopedic 

surgeon, noted appellant’s three-year history of lumbar and lumbosacral back pain without 

radicular symptoms. On examination he observed painful lumbar flexion, extension, bilaterallater 

flexion, and right rotation. Dr. Stevens diagnosed lumbago and lumbar stenosis with neurogenic 

claudication. He ordered imaging studies and prescribed physical therapy. 

In a January 7, 2019 report, Dr. R. Pepper Murray, a Board-certified orthopedic surgeon, 

noted that appellant had retired from federal employment after 23 years due to lumbar and left 

shoulder pain. He noted that appellant had worked as a letter carrier for 13 years, with heavy 

lifting and carrying of mail. Dr. Murray noted findings on examination of the left shoulder. He 
5

obtained x-rays demonstrating a type III acromion and modest acromioclavicular joint arthrosis.

Dr. Murray diagnosed chronic impingement with a possible labral tear and paralabral cyst. 

In reports dated from January 29 through March 21, 2019, Dr. Raul K. Weston, Boardcertified in anesthesiology and pain medicine, noted that appellant’s low back pain developed 

several years ago while delivering mail and lifting cartons of mail. He administered a series of 

multi-level lumbar medial branch blocks, followed by radiofrequency ablation of the medial 

branch nerves bilaterally from L2 through L5. Dr. Weston diagnosed lumbar spondylosis, lumbar 

degenerative disc disease, lumbar facet arthropathy, and low back pain. 

By decision dated June 1, 2020, OWCP denied appellant’s request for reconsideration, 

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. 7

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (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. 8

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.10 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.11

ANALYSIS

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

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

On reconsideration appellant submitted a January 7, 2019 report by Dr. Murray, which 

addressed the accepted conditions and appellant’s ongoing symptoms. The Board finds that, as

Dr. Murray addressed the accepted medical conditions and appellant’s ongoing symptoms, his 

7

5 U.S.C. § 8128(a). 

8

20 C.F.R. § 10.606(b)(3). 

9

Id. at § 10.607(a). 

10 Id. at § 10.608(a). 

11 Id. at § 10.608(b).
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opinion is new, relevant medical evidence warranting a review of the merits of appellant’s claim

based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12

As OWCP did not properly review this new, relevant medical evidence, the Board finds 

that appellant is further entitled to a review of the merits of his claim based on the third standard

under 20 C.F.R. § 10.606(b)(3).13

Consequently, the Board will set aside OWCP’s June 1, 2020 decision and remand the case 

for an appropriate merit decision on appellant’s claim.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board. 

Issued: July 15, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

12 Id. See also F.F., Docket No. 20-1542 (issued April9, 2021).

13 Id.