United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.A., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Eau Claire, WI, 

Employer

__________________________________________

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Docket No. 21-0813

Issued: December 27, 2021

Appearances: Case Submitted on the Record

Andrew Douglas, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 5, 2021 appellant, through counsel, filed a timely appeal from a March 9, 2021 

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

days has elapsed from the last merit decision dated January 23, 2020, 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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On August 13, 2019 appellant, then a 37-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on August 10, 2019 she sustained a left shoulder strain 

when lifting a heavy sack while in the performance of duty. She did not stop work.

In an August 13, 2019 form report, Nicole O’Donnell, a nurse practitioner, noted 

appellant’s August 10, 2019 injury date, diagnosed left shoulder strain, and indicated that appellant 

was capable of returning to very light work on August 13, 2019. In a report of even date, she

detailed an injury history, again diagnosed left shoulder pain, and, on examination, reported that 

appellant had good left shoulder range of motion, some discomfort over the acromioclavicular 

joint, and generalized discomfort with palpation over entire anterior aspect. Ms. O’Donnellrelated 

that a left shoulder x-ray was negative for any acute process.

An August 13, 2019 x-ray of appellant’s left shoulder revealed mild left shoulder 

acromioclavicular joint degenerative changes.

In an August 29, 2019 report, Dr. Jose A. Padilla, an orthopedic surgeon, noted the history 

of appellant’s claimed August 10, 2019 incident, related her physical examination findings, and 

diagnosed traumatic left shoulder pain. He also noted that review of left shoulder x-rays showed 

mild acromioclavicular joint degenerative changes. In a work excuse of even date, Dr. Padilla 

advised that appellant was to continue with current work restrictions pending further testing.

A September 27, 2019 left shoulder magnetic resonance imaging (MRI) scan revealed 

nondisplaced superior labral tear and moderate acromioclavicular osteoarthritis.

In progress notes dated October 3, 2019, Dr. Padilla reviewed an MRI scan and diagnosed 

left shoulder rotator cuff tear with severe acromioclavicular osteoarthritis. He recommended that 

appellant undergo arthroscopic examination of the left shoulder. 

On October 29, 2019 appellant underwent left shoulder arthroscopic subacromial 

decompression and distal clavicle resection surgery, which was performed by Dr. Padilla.

In a November 15, 2019 development letter, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence necessary to establish her

claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to 

provide the necessary evidence.

In a December 3, 2019 response, appellant indicated that the sack she lifted on August 10, 

2019 weighed approximately 85 pounds. She also indicated that she had not experienced any left 

shoulder symptoms prior to August 10, 2019.
3

By decision dated January 23, 2020, OWCP denied the claim,finding that the evidence of 

record was insufficient to establish a diagnosed medical condition causally related to the accepted 

August 10, 2019 employment incident.

Following the denial of her claim, appellant resubmitted a September 27, 2019 MRI scan, 

along with October 3, 2019 progress notes and an October 29, 2019 operative report from

Dr. Padilla.

On January 21, 2021 appellant, through counsel, requested reconsideration. Counsel 

asserted that appellant’s claim should be accepted for left rotator cuff tear, left anterior glenoid 

labral tear and exacerbation of left shoulder bursitis and left shoulder acromioclavicular joint 

arthritis based on Dr. Padilla’s medical reports and MRI scan findings.

In progress notes dated November 4 and December 2, 2019 and January 9 and February 27, 

2020, Dr. Padilla provided examination findings and diagnosed status post left shoulder 

arthroscopic surgery. In the December 2, 2019 progress notes, he related that appellant had been 

doing well following her left shoulder decompression and distal clavicle resection until she picked 

up her four-year old and experienced instant pain. Dr. Padilla related an assessment of 

exacerbation of left shoulder bursitis. In the January 9, 2020 progress notes, he referred appellant 

to another physician to address workers’ compensation issues as appellant asserted that her injury 

was an employment injury under dispute and had not been officially filed.

OWCP also received a January 9, 2020 letter from Joe Cotton, a physician assistant, and 

progress notes dated November 23 and December 30, 2019 from Dr. Padilla’s staff members.

By decision dated March 9, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of the claim under 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.3

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 

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

Supra note 2 at § 8128(a);see also P.S., Docket No. 20-1090 (issued September 9, 2021); W.C., 59 ECAB 

372 (2008).

4

20 C.F.R. § 10.606(b)(3); see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N., Docket No. 08-

1569 (issued December 9, 2008).
4

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

Appellant, through counsel, filed a timely request for reconsideration on January 21, 2021. 

In support of her request, counsel argued that the evidence of record was sufficient to establish 

that the claim should be accepted for left rotator cuff tear, left anterior glenoid labral tear and 

exacerbation of left shoulder bursitis and left shoulder acromioclavicular joint arthritis as a result 

of the accepted August 10, 2019 employment incident. The Board finds that this argument does 

not show that OWCP erroneously applied or interpreted a specific point of law, nor does it advance 

a relevant legal argument not previously considered by OWCP. Counsel’s general disagreement 

with OWCP’s denial of the claim is insufficient to meet one of these two criteria. 8 Additionally,

hislay opinion regarding causal relationship is not probative regarding the issue in this case, which, 

as noted, is medical in nature.9 Consequently, appellant is not entitled to further review of the 

merits of her claim based on either the first or second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3).10

With her request for reconsideration, appellant resubmitted a September 27, 2019 MRI 

scan of her left shoulder, October 3, 2019 progress notes from Dr. Padilla, and an October 29, 2019 

operative report. Submission of medical evidence that either duplicates or is substantially similar 

to evidence of record does not constitute a basis for reopening a case.11 

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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 2.1602.4(b).

6

Id. at § 10.608(a); see also P.S., supra note 3; M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

8 E.V., Docket No. 16-0080 (issued June 21, 2016). 

9

Id.; see Gloria J. McPherson, 51 ECAB 441, 448 (2000).

10 Supra note 4 at 10.606(b)(3); see T.B., Docket No. 21-0045 (issued June 2, 2021); J.V., Docket No. 19-0990 

(issued August 26, 2020);C.N.,Docket No. 08-1569 (issued December 9, 2008).

11 See B.S., Docket No. 20-0927 (issued January 29, 2021); D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., 

Docket No. 19-0503 (issued February 7, 2020); A.A., Docket No. 18-0031 (issued April5, 2018); EugeneF. Butler, 

36 ECAB 393 (1984).
5

Appellant also submitted progress notes dated November 4, December 2 and 30, 2019, 

January 9, and February 27, 2020, from Dr. Padilla who provided physical examination findings 

and diagnosed status post left shoulder arthroscopic surgery and exacerbation of left shoulder 

bursitis. The underlying issue in this case is whether appellant’s left shoulder conditions are 

causally related to the accepted employment incident. However, Dr. Padilla’s reports did not

address causal relationship and are, therefore, irrelevant to the underlying issue in this case.12 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.13

Appellant also submitted a January 9, 2020 letter from Mr. Cotton, a physician assistant, 

noting that appellant attributed her left shoulder pain to a work injury. Mr. Cotton’s letter has no 

probative value, however, as physician assistants are not considered physicians as defined under 

FECA.14 OWCP also received progress notes dated November 23 and December 30, 2019 from

Dr. Padilla’s staff members. These progress notes do not constitute medical evidence under FECA 

as there is no indication that staff members are physicians.

15

 As appellant did not provide relevant 

and pertinent new evidence, she is not entitled to a merit review based on the third requirement 

under 20 C.F.R. § 10.606(b)(3).16

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

entitled to further review of the merits of her 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.17

12 T.B., supra note 10; Y.L., Docket No. 20-1025 (issued November 25, 2020).

13 See T.B., id.; T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); 

JacquelineM. Nixon-Steward, 52 ECB 140 (2000).

14 Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R. 

§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) 

(January2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); DavidP. 

Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists 

are not competent to render a medical opinion under FECA); see also C.S., Docket No. 20-1354 (issued January29, 

2021); C.P., Docket No. 19-1716 (issued March 11, 2020) (physician assistants are not considered physicians as 

defined under FECA); S.L., Docket No. 19-0603 (issued January 28, 2020) (nurse practitioners are not considered 

physicians as defined under FECA).

15 See S.D., Docket No. 21-0292 (issued June 29, 2021); C.B., Docket No. 09-2027 (issued May 12, 2010) (a 

medical report may not be considered as probative medical evidence if there is no indication that the person completing 

the report qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not 

constitute probative medical evidence); Merton J. Sills, 39 ECAB 572, 575(1988).

16 See M.M., Docket No. 21-0227 (issued June 17, 2021); T.W., Docket No. 18-0821 (issued January13, 2020).

17 See M.M., id.; J.B., Docket No. 20-0145 (issued September 8, 2020).
6

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).

ORDER

IT IS HEREBY ORDERED THAT the March 9, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 27, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board