United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.V., Appellant

and

U.S. POSTAL SERVICE, CHATHAM POST 

OFFICE, Chatham, NJ, Employer

__________________________________________

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Docket No. 21-0628

Issued: August 8, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 10, 2021 appellant, through counsel, filed a timely appeal from a February 3, 

2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more 

than 180 days elapsed from OWCP’s merit decision, dated August 10, 2020, to the filing of this 

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 The Board notes that counsel also specifically appealed OWCP’s August10, 2020 merit decision, which denied 

appellant’s claim for disability. Asshe did not file a timely appeal from the August 10, 2020 decision within 180 days 

of issuance,the Board, therefore, lacks jurisdiction over OWCP’s disability decision. See 20 C.F.R. § 501.3(e). The 

Board further notes that, although OWCP’s November 5, 2020 merit decision denying the expansion of the acceptance 

of appellant’s claim to include a consequential cervical condition is within the Board’s jurisdiction, counsel has not 

appealed that decision. Therefore, the Board will not address the November 5, 2020 merit decision in this appeal. See

20 C.F.R. § 501.3(a) and (c).
2

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 the claim. 4

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 14, 2019 appellant, then a 52-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 13, 2019 she suffered a laceration to her scalp when a 

roofing staple gun fell on her head while in the performance of duty. She stopped work on 

August 13, 2019. On September 9, 2019 OWCP accepted appellant’s claim for a laceration 

without foreign body of the scalp.

In an August 30, 2019 medical report, Dr. Dora Leibu, Board-certified in family medicine, 

evaluated appellant for the work-related laceration to her coronal structure on the left side with 

cervical paraspinal hypertonicity and restriction of motion in the cervical spine and left upper 

extremity. She diagnosed muscle spasm of the cervical muscle of the neck and paresthesia of the 

upper limb and recommended that appellant undergo magnetic resonance imaging (MRI) scans 

and physical therapy to treat her conditions. 

In a work capacity evaluation (Form OWCP-5c) dated August 30, 2019, Dr. Leibu checked 

a box marked “No” to indicate that appellant was unable to perform her usual job and opined that 

she was currently unable to work. 

In a September 16, 2019 medical report, Dr. Leibu noted that appellant had begun therapy 

to treat symptoms of left-sided neck stiffness, swelling of the neck on the left side, ongoing 

paresthesia on her left extremity, and weakness of the left arm. She diagnosed cervical disc 

disorder with radiculopathy and monoparesis of the left arm. Dr. Leibu opined that appellant was 

not able to return to work at that time. 

In a September 18, 2019 duty status report (Form CA-17), Dr. Leibu referenced her

previous medical report and checked a box marked “No” to indicate that appellant was not able to 

perform her regular work. 

Appellant also submitted physical therapy reports dated September 4 to October 1, 2019 

detailing her treatment for cervicalgia. 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that, following the February 3, 2021 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.
3

On October 11, 2019 filed a claim for compensation (Form CA-7) for disability for the 

period from September 28 through October 11, 2019.

In a development letter dated October 16, 2019, OWCP requested that appellant submit 

additional information to establish her wage-loss compensation claim, including medical evidence 

establishing that her disability during the period September 28 through October 11, 2019, was 

causally related to her accepted August 13, 2019 employment injury. It afforded her 30 days to 

submit the necessary evidence. 

In an October 11, 2019 report, Dr. David Poulad, a Board-certified neurosurgeon, 

evaluated appellant for her two-month history of left-sided neck pain and left upper extremity 

weakness relating to her August 13, 2019 employment injury. He noted that, approximately one 

week after her injury, she began to develop severe left-sided neck pain and upper extremity 

weakness and numbness that had not sense improved with physical therapy. Dr. Poulad diagnosed 

cervicalgia, cervical radiculopathy and left upper extremity weakness. 

In an October 18, 2019 attending physician’s report (Form CA-20), Dr. Poulad diagnosed 

cervical radiculopathy, extremity weakness and cervical pain due to the August 13, 2019 

employment incident. He checked a box marked “Yes” to indicate his opinion that appellant’s 

condition was caused or aggravated by her employment activity. 

In a November 18, 2019 development letter, OWCP advised that appellant’s claim had 

been accepted for lacerations, and that it appeared she was claiming disability due to a

consequential condition of cervical radiculopathy. It informed her of the legal, factual, and 

medical criteria for establishing a consequential condition. OWCP afforded appellant at least 30 

days to submit additional factual and medical evidence in support of her claim.

In medical reports dated November 14 and December 12, 2019, Dr. Leibu observed that 

appellant experienced improved range of motion in her neck, as well as an improved pain level 

and increased strength in her left upper extremity following her physical therapy. She diagnosed 

cervical radiculopathy and neck pain.

Appellant submitted physical therapy reports dated from October 8 to January 2, 2020 

detailing treatment for cervicalgia.

In a January 8, 2020 Form CA-20, Dr. Leibu recounted the events of the August 13, 2019 

employment injury and diagnosed cervical radiculopathy, left upper extremity paresthesia and 

weakness, as well as cervical pain. She checked a box marked “Yes” to indicate her opinion that 

appellant’s conditions were caused or aggravated by the August 13, 2019 employment injury. 

Dr. Leibu opined that she would be able to resume light-duty work as of January 8, 2020. 

Appellant also filed additional CA-7 forms dated from October 25 to December 20, 2019, 

requesting wage-loss compensation for disability from work for the period October 12 to 

December 20, 2019. 

By decision dated January 16, 2020, OWCP denied appellant’s disability claim, finding 

that the medical evidence of record did not establish how she was disabled as a result of her 

accepted work-related medical conditions.
4

OWCP continued to receive evidence. Appellant submitted additional physical therapy 

notes dated January 8 and 10, 2020 detailing her continued treatment for cervicalgia.

Appellant filed additional CA-7 forms dated January 17, 2020, requesting wage-loss 

compensation for disability from work for the period December 21, 2019 to January 17, 2020.

The record also contains copies of medical evidence from Drs. Leibu and Poulad, 

previously received by OWCP. 

On January 30, 2020 appellant requested a review of the written record of the January 16, 

2020 disability decision by a representative of OWCP’s Branch of Hearings and Review.

Appellant submitted a January 15, 2020 physical therapy report detailing her continued 

treatment for cervicalgia. 

In a January 27, 2020 report, Dr. Leibu reviewed appellant’s history of cervical 

radiculopathy and left arm monoparesis that first occurred after her August 13, 2019 employment 

injury. She explained that the nail gun that fell on appellant’s head fell with enough force to cause 

a laceration and to exert cervical force on her cervical spine. As a result, the nucleus pulposus, 

which comprised the “gelatinous” matter of the cervical disc, protruded through the vertebrae at 

the levels C4-C6, effectively, impinging on the affected spinal nerves that corresponded with her 

left arm and forearm. Dr. Leibu continued, reasoning that immediately after her injury, appellant’s 

cervical paraspinal muscles that surrounded her spine tightened quickly and effectively went into 

a spasm in an effort to protect the integrity of her cervical spine. Appellant then began to develop 

neck pain as well as neck muscle spasm with progressive paresthesia and weakness in her left arm, 

forearm and hand. Dr. Leibu noted that she had been treating appellant since 2017 and that she 

had never had any cervical spine pathologies or upper extremity weakness prior to her injury. She 

diagnosed cervical radiculopathy and monoplegia of the upper limb affecting the non -dominant 

side. 

On February 25, 2020 appellant, through counsel, requested that her January 30, 2020 

request for a review of the written record of the January 16, 2020 decision be converted to a request 

for a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. 

In a March 5, 2020 medical report, Dr. Poulad reviewed the history of the August 13, 2019 

employment incident and the resulting lacerations to the head and cervical spine injuries that 

appellant sustained. He noted that she underwent magnetic resonance imaging (MRI) scans of her 

C5 to C7 disc bulges that likely resulted in her symptoms. Appellant indicated that she had 

completed 36 physical therapy sessions and that she felt approximately 75 percent improved since 

her initial injury. On evaluation Dr. Poulad diagnosed cervical pain, cervical radiculopathy and 

left upper extremity weakness. He opined that appellant’s conditions were causally related to the 

August 13, 2019 employment incident, reasoning that the significant impact to her head most 

likely resulted in disc herniation. 

In a March 18, 2020 Form CA-17, Dr. Leibu diagnosed cervical radiculopathy and noted 

that appellant’s injury occurred on August 13, 2019. She checked a box marked “No” to advise 

that appellant not return to work at the time.
5

Appellant filed CA-7 forms dated from January 31 to March 27, 2020 requesting wageloss compensation for disability from work for the periods January 18 through 31, 2020, and 

February 15 through March 27, 2020.

On March 27, 2020 appellant filed a notice of recurrence (Form CA-2a), alleging that on 

March 18, 2020 she sustained a recurrence of disability causally related to her accepted August 13, 

2019 employment injury.5

In an April 9, 2020 medical note, Dr. Leibu indicated that she evaluated appellant on 

April 6, 2020 and advised that she was able to return to work with restrictions. 

Appellant filed CA-7 forms dated from April 10 to May 10, 2020 requesting wage-loss 

compensation for disability from work for the period March 28 through May 8, 2020.

In a May 11, 2020 medical report, Dr. Leibu observed appellant’s work restrictions and 

diagnosed cervical radiculopathy and cervical disc disorder. In a May 14, 2020 Form CA-20,she

referred to her previous medical report and diagnosed cervical radiculopathy, left upper extremity 

weakness and cervical muscle spasm. Dr. Leibu checked a box marked “Yes” to indicate her 

opinion that appellant’s conditions were caused or aggravated by the August 13, 2019 employment 

injury. In a Form CA-17 and medical note of even date, she diagnosed cervical radiculopathy due 

to the August 13, 2019 employment injury and advised that appellant was able to work with 

restrictions as of May 12, 2020.

A telephonic hearing was held on June 15, 2020. Appellant recounted the events of the 

August 13, 2019 employment injury and insisted that she began to experience symptoms in her 

left arm and cervical spine shortly after. Counsel for appellant also reasoned that Dr. Leibu’s 

January 27, 2020 medical report was sufficient to establish that appellant’s cervical conditions 

were causally related to the August 13, 2019 employment injury.

By decision dated August 10, 2020, OWCP’s hearing representative affirmed OWCP’s 

January 16, 2020 decision denying appellant’s claim for disability.6

OWCP continued to receive evidence. Appellant submitted a December 28, 2020 note 

where Dr. Leibu diagnosed cervical radiculopathy with left upper extremity weakness and 

paresthesia due to the August 13, 2019 employment injury. She recommended work restrictions 

for appellant to adhere to. 

5

In a development letter dated April 7, 2020, OWCP informed appellant that it had administratively converted the 

recurrence claim under the present claim to a new traumatic injury claim occurring on March 18, 2020 under OWCP 

File No. xxxxxxx155. The claims have been administratively combined by OWCP with the present claim, OWCP 

File No. xxxxxx638,serving as the master file.

6 The hearing representative explained thatDr.Leibu’s January 27, 2020medical report was insufficient as she did 

not discuss a previous November 3, 2016 employment injury accepted for a lumbar strain and denied for cervical 

radiculopathy under OWCP File No. xxxxxx768. Upon return of the case file, OWCP’s hearing representative 

instructed that OWCP File Nos. xxxxxx768 andxxxxxx155 be administratively combined with the present case file.
6

On January 5, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

August 10, 2020 decision. Counsel contended that she never complained of cervical 

radiculopathy, nor did she indicate that she had cervical radiculopathy, at any time during her 

November 3, 2016 claim and her related treatment. He asserted that this was a mistake by the 

medical provider and that OWCP itself recognized that appellant did not develop cervical 

radiculopathy as a result of her November 3, 2016 employment injury, under File No. xxxxxx768. 

Counsel attached a December 28, 2020 report from Dr. Leibu in which she indicated that 

appellant’s cervical radiculopathy with left upper extremity weakness and paresthesia was not a 

preexisting condition. She noted that appellant’s previous medical attention with Dr. Nirmala 

Akkappeddi, a Board-certified in internist, was only for left hip and low back pain and that she 

was not suffering from cervical radiculopathy prior to August 2019. 

By decision dated February 3, 2021, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, finding that her newly submitted evidence was cumulative and, thus.

substantially similar to the evidence already contained in the case file and previously considered. 

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 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.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 

7

5 U.S.C. § 8128(a); see L.D.,Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017);D.L.,Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

8

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).

9

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 the merit 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.

10 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
7

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 properly denied appellant’s request for reconsideration of the 

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

Appellant did not establish that OWCP erroneously applied or interpreted a specific point 

of law, or advance a relevant legal argument not previously considered by OWCP. Accordingly, 

the Board finds that appellant is not entitled to a review of the merits based on either the first or 

second requirement under 20 C.F.R. § 10.606(b)(3).12

The Board further finds that appellant has not provided any relevant and pertinent new 

evidence not previously considered. In support of her reconsideration request, appellant submitted 

a December 28, 2020 note from Dr. Leibu who explained that her cervical radiculopathy was not 

a preexisting condition and was caused by the August 13, 2019 employment injury. However, this 

evidence is not relevant to the underlying issue in this case of whether appellant has met her burden 

of proof to establish disability from work for the period commencing September 28, 2019 causally 

related to the accepted August 13, 2019 employment injury. 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.13 Consequently, as appellant failed to 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).14

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.15

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 Id. at § 10.608(b); E.R.,Docket No. 09-1655 (issued March 18, 2010).

12 Supra note 8.

13 T.D., Docket No. 21-1381 (issued June21, 2022); Y.L., Docket No. 20-1025 (issued November 25, 2020); E.W., 

Docket No. 19-1393 (issued January 29, 2020); R.R., Docket No. 18-1562 (issued February 22, 2019); Edward 

Matthew Diekemper, 31 ECAB 224-25 (1979).

14 Supra note 8.

15 See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April10, 2017);

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).
8

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: August 8, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board