United States Department of Labor

Employees’ Compensation Appeals Board

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P.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 22-0544

Issued: October 17, 2022

Appearances: Case Submitted on the Record

Wayne Johnson, 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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 1, 2022 appellant, through counsel, filed a timely appeal from a September 2, 

2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated November 25, 2020, which became final after 

30 days of issuance, and is not subject to further review.2 As there was no merit decision issued

by OWCP within 180 days of 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.

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 20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3 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

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts 

are as follows.

On November 4, 2000 appellant, then a 52-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 3, 2000 he pulled a muscle in his left shoulder, 

neck, and arm when he removed bags from the pick-up box while in the performance of duty. He 

did not stop work, but worked in a limited-duty capacity. OWCP accepted appellant’s claim for 

left shoulder sprain, left hand sprain, cervical sprain, and cervical radiculopathy.

On September 22, 2004 appellant filed a claim for compensation (Form CA-7) for 

disability from work during the period September 18 through October 1, 2004. OWCP paid him

wage-loss compensation on the supplemental rolls effective September 18, 2004, and on the 

periodic rolls effective October 3, 2004.

On November 27, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Clinton Bush, III, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding the status of appellant’s

November 3, 2000 employment injury. In a December 12, 2018 report, Dr. Bush indicated that he 

had reviewed the SOAF and noted appellant’s accepted conditions of brachial neuritis or 

radiculitis, left shoulder sprain, left hand sprain, and cervical sprain. On examination of 

appellant’s cervical spine he observed no reproducible tenderness, crepitus, or spasm. 

Examination of appellant’s left upper extremity demonstrated dramatic loss of active range of 

motion in the left shoulder and wrist. Dr. Bush indicated that strength testing in the left upper 

extremity revealed repeated and multiple episodes of give way weakness in the elbow flexion and 

extension, shoulder abduction, and wrist dorsiflexion and palmar flexion. Sensory examination 

revealed no sensory loss in either upper extremity. Dr. Bush diagnosed degenerative disc disease 

of the cervical spine with multiple disc herniations and resolved cervical strain.

In response to OWCP’s questions, Dr. Bush responded that appellant’s work-related 

medical conditions had resolved. He noted his examination revealed no objective findings of 

neurological compromise and, therefore, no current evidence of brachial neuritis or radiculitis. 

Dr. Bush reported that there were no objective findings of left shoulder or hand pathology and no 

suggestion of any other diagnosis, including left shoulder and left hand sprain. He further opined 

that appellant’s current cervical spine diagnosis “is and always has been degenerative disc 

disease.” Dr. Bush explained that the act of lifting an object out of a bin was “unlikely to have 

4 Docket No. 05-0655 (issued June 16, 2005); Docket No. 06-0572 (issued May 11, 2006); Docket No. 20-0862 

(issued November 25, 2020).
3

been a significant cause of [appellant’s] multilevel disc pathology.” He concluded that appellant 

could perform sedentary-duty work.

In reports dated December 15, 2018 through August 23, 2019, Dr. Curtis Kephart, a Boardcertified orthopedic surgeon, indicated that appellant was evaluated for complaints of cervical pain 

and upper extremity weakness. On initial examination of appellant’s cervical spine he observed 

paravertebral muscle spasm to the mid-to-lower cervical, trapezius, and rhomboid areas. Sensory 

examination demonstrated decreased sensation in the upper extremities at C6-7. Dr. Kephart

diagnosed cervical radiculopathy, strain of muscle at the neck level, and cervicalgia.

In a letter dated September 11, 2019, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits as the evidence of record established that he no longer had 

residuals of his accepted November 3, 2000 employment injury. It found that the weight of the 

medical evidence rested with the December 12, 2018 report of Dr. Bush, the second opinion 

physician. OWCP afforded appellant 30 days to respond if he disagreed with the proposed 

termination.

Appellant subsequently submitted additional reports dated September 23, 2019 through

March 2, 2020 by Dr. Kephart.

By decision dated March 23, 2020, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective March 29, 2020. It found that the weight of the 

medical evidence rested with the December 12, 2018 report of Dr. Bush.

On April 21, 2020 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review, which was held on July 8, 2020.

By decision dated August 12, 2020, the hearing representative affirmed the March 23, 2020 

termination decision.

On August 12, 2021 appellant, through counsel, requested reconsideration of the 

August 12, 2020 decision. Counsel argued that OWCP improperly terminated appellant’s benefits

on March 23, 2020 based on Dr. Bush’s December 12, 2018 second-opinion report because it 

constituted stale medical evidence. He also asserted that Dr. Bush ignored the accepted conditions 

detailed in the SOAF.

By decision dated September 2, 2021, OWCP denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
4

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.5

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.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.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.8 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.9

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).

In his reconsideration request, appellant argued that OWCP improperly terminated 

appellant’s wage-loss compensation and medical benefits on March 23, 2020 based on Dr. Bush’s 

December 12, 2018 second-opinion report as Dr. Bush’s report constituted stale medical evidence 

and ignored the accepted conditions noted in the SOAF. The Board finds that this constitutes a 

new and relevant legal argument not previously considered. Therefore, appellant is entitled to a 

review of the merits based on the second above-noted requirements under section 10.606(b)(3).10 

5 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).

6 20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795 

(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

7

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.

8

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

9

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

10 Supra note 6; P.G., Docket No. 20-0235 (issued July 13, 2020); T.B., Docket No. 18-1214 (issued 

January 29, 2019).
5

Accordingly, the Board will set aside OWCP’s September 2, 2021 decision and remand the case 

for an appropriate merit decision.

CONCLUSION

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).

ORDER

IT IS HEREBY ORDERED THAT the September 2, 2021 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: October 17, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board