United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.H., Appellant

and

U.S. POSTAL SERVICE, SUMMERLIN POST 

OFFICE, Las Vegas, NV, Employer

__________________________________________

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Docket No. 20-0309

Issued: January 26, 2021

Appearances: Case Submitted on the Record

Alexia Quintero, 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 November 25, 2019 appellant, through counsel, filed a timely appeal from a June 11, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated April 3, 2018, 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.3

 

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.

3 The Board notes that, following the June 11, 2019 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.
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 19, 2016 appellant, then a 52-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she experienced pain in the neck and shoulders, which 

radiated down to her arms, and developed multi-level cervical spondylosis due to factors of her 

federal employment, including reaching overhead, bending forward, and lifting heavy loads. She 

indicated that she first became aware of her condition on September 7, 2012 and first realized that 

it was caused or aggravated by factors of her federal employment on July 28, 2016. Appellant did 

not initially stop work. On November 1, 2016 OWCP accepted the claim for temporary 

aggravation of cervical disc displacement. It paid appellant intermittent wage-loss compensation 

on the supplemental rolls from October 15, 2016 through September 15, 2018, and on the periodic 

rolls commencing September 16, 2018. 

On September 15, 2016 Dr. Mark Kabins, a Board-certified orthopedic surgeon, performed 

an anterior discectomy and interbody fusion/arthrodesis at the C3-4 level. 

On January 17, 2017 appellant accepted an offer of a modified rural carrier assignment. 

The duties of the position included casing mail up to four hours a day, maintaining “Red books”

up to two hours a day, and marking up to 10-pound parcels for delivery. The physical requirements 

included lifting up to 10 pounds and pulling and pushing up to two hours per day, and standing 

and walking up to four hours per day. 

In a February 2, 2017 work excuse note, Dr. Steven Waltman, a specialist in family 

medicine, noted that appellant was unable to work until February 16, 2017. Appellant stopped 

work on February 2, 2017. 

On February 6, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for 

intermittent disability from work during the period January 21 through February 3, 2017. 

In a February 10, 2017 development letter, OWCP acknowledged receipt of appellant’s 

claim for wage-loss compensation for “February 2, 2017 to February 3, 2017” because the 

employing establishment was unable to accommodate her work restrictions full time. It advised 

that additional evidence was needed to establish temporary total disability during the claimed 

period, requested additional factual and medical evidence, and provided a questionnaire for her

completion. OWCP afforded appellant 30 days to submit the necessary evidence. 

In a February 16, 2017 duty status report (Form CA-17), Dr. John Reneau, a specialist in 

physical medicine, diagnosed neck pain, right shoulder pain, and headaches, and listed appellant’s 

work restrictions. 

On February 21, 2017 appellant filed a Form CA-7 for disability from work during the 

period February 4 through 17, 2017. 
3

On February 24, 2017 OWCP forwarded appellant’s medical record and a statement of 

accepted facts to its district medical adviser (DMA) and requested that he address whether an 

anterior discectomy and reconstruction at the C3-4 level was medically necessary and causally 

related to her accepted conditions. 

In a February 28, 2017 development letter, OWCP acknowledged receipt of appellant’s 

claim for wage-loss compensation for February 4 to 17, 2017 and advised that additional evidence 

was needed to establish temporary total disability during the claimed period. It requested 

additional factual and medical evidence as detailed in its February 10, 2017 development letter

regarding the earlier claimed period of disability. 

On March 8, 2017 appellant responded to OWCP’s development questionnaire. She noted 

that her recurrence occurred after returning to work in a modified-duty position in which she 

performed repetitive motions that irritated her neck, shoulders, and arms and caused headaches. 

Appellant indicated that she worked eight hours on January 12 and 13, 2017, casing mail which 

involved standing for long periods of time, lifting mail weighing up to 10 pounds, and rotating her 

neck. She alleged that her injury was progressing because her modified assignment did not allow 

her to recover completely. 

In a March 8, 2017 report, Dr. Waltman noted that appellant had a history of previous neck 

injury and was seen due to increasing neck pain which necessitated that she be off work from 

February 2 to 16, 2017. He found that her physical examination revealed decreased range of 

motion of the cervical spine and obvious muscle stiffness and spasms. Dr. Waltman diagnosed 

recurrent cervical disc disorder and opined that, due to appellant’s neck pain and muscle spasms, 

she was unable to return to work during the noted time frame. 

In a March 27, 2017 report, Dr. Nizar Souayah, a Board-certified specialist in 

neuromuscular medicine, acting as OWCP’s DMA, noted appellant’s history of injury and medical 

treatment. He found that she developed chronic neck pain after a work-related injury and indicated 

that physical examination showed cervical tenderness in the neck and limited range of motion. 

Dr. Souayah reviewed diagnostic testing which revealed chronic C2, C3, and C4 radiculopathy 

and a disc protrusion at C3-4. He noted that appellant failed all conservative therapies including 

cervical injections, pain medications, and physical therapy and as such, the request for anterior 

discectomy and reconstruction at the C3-4 level was medically necessary. 

By decision dated March 31, 2017, OWCP denied appellant’s claim for disability for the 

period February 2 to 17, 2017, finding that the medical evidence of record was insufficient to 

establish disability for the claimed period. 

On March 31, 2017 OWCP authorized the cervical surgical procedures that appellant 

underwent on September 15, 2016. 

On March 29, 2018 appellant, through counsel, requested reconsideration. Counsel 

enclosed medical evidence and argued that the acceptance of appellant’s claim should be expanded 

to include cervical radiculopathy and that appellant suffered a material worsening of her condition 

leading to disability starting on or around February 2, 2017. He further argued that OWCP 

incorrectly evaluated a March 8, 2017 report from Dr. Waltman which established that appellant 

was disabled from work during the claimed period of disability. 
4

OWCP subsequently received additional medical evidence. Electromyography and nerve 

conduction velocity studies dated November 14, 2012 revealed moderate bilateral carpal tunnel 

syndrome and very mild C4 and C5 radiculopathy. 

In a February 2, 2017 report, Dr. Waltman noted that appellant presented with 

incapacitating neck pain. He examined her and diagnosed other cervical disc disorder. 

Dr. Waltman administered a pain injection to appellant’s right elbow. He indicated that she was 

given a work excuse note to be off work until February 16, 2017. 

In a November 16, 2017 report, Dr. Jason Garber, a Board-certified neurosurgeon, noted 

that appellant presented with exacerbation of her cervical spine condition. He reviewed x-ray 

views of her spine and diagnosed acute neck pain and a bulge of the cervical disc without 

myelopathy. Dr. Garber indicated that a magnetic resonance imaging (MRI) scan of appellant’s 

spine from 2016 revealed a disc herniation at C3-4 with venral impression on the spinal cord. 

By decision dated April 3, 2018, OWCP denied modification of its March 31, 2017 

decision. 

On April 2, 2019 appellant, through counsel, requested reconsideration. Counsel repeated 

arguments made in her March 29, 2018 request for reconsideration that OWCP mischaracterized 

or misinterpreted the medical evidence of record. He asserted that the evidence of record was 

insufficiently developed regarding appellant’s diagnosed cervical radiculopathy condition, leading 

to the April 3, 2018 decision being rendered in error. In addition, counsel specifically addressed 

a new report from Dr. Matthew Otten, an osteopathic physician specializing in 

neuromusculoskeletal medicine, dated February 10, 2018 and argued that this report, along with

Dr. Waltman’s reports established that her diagnosis of cervical radiculopathy was causally related 

to the accepted employment injury and caused her alleged disability. 

OWCP continued to receive medical evidence. In an October 31, 2017 report, Dr. Randall 

Yee, an osteopathic surgeon, noted appellant’s complaints of sharp pain in the right shoulder. 

Dr. Yee reviewed an MRI scan of her right shoulder and diagnosed cervical radiculopathy, lateral 

epicondylitis of the right elbow, and right shoulder rotator cuff tear. In a November 8, 2017 report,

he reviewed MRI scans of cervical spine and right shoulder and diagnosed cervical radiculopathy 

and right shoulder rotator cuff tear. In a December 6, 2017 report, Dr. Yee noted that appellant 

still experienced pain following a cortisone injection. He examined her and diagnosed cervical 

radiculopathy and right shoulder rotator cuff tear.

In a December 12, 2017 report, Dr. Brian Le, a Board-certified osteopathic physician

specializing in pain medicine, noted that appellant had neck pain with associated headaches and 

pain radiating into the shoulder and hands. He examined her and reviewed x-rays and MRI scans 

of her right shoulder and spine. Dr. Le diagnosed cervical radiculopathy, but did not specify when 

it first presented. OWCP thereafter continued to receive progress reports from him dated May 25, 

July 19, and August 14, 2018 and February 6 and 14, and April 11, 2019 wherein he diagnosed 

cervical radiculopathy, as well as failed neck syndrome, cervical facet syndrome, cervical 

radiculopathy, and lumbar facet syndrome. 

In a February 10, 2018 report, Dr. Otten indicated that appellant’s comorbidities included 

cervical degenerative disc disease with upper right extremity radiculopathy and right shoulder pain 

with mild rotator cuff pathology. He noted that she could perform light-duty work, restricted to 
5

no more than two hours a day of repetitive motion, and two hours a day of lifting no more than 10 

pounds.

Appellant also submitted progress reports, notes, evaluations, diagnostic tests, and physical 

therapy treatment notes which did not address her cervical radiculopathy or the specific period of 

disability claimed.

By decision dated June 11, 2019, OWCP denied appellant’s request for reconsideration of 

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

In support of appellant’s April 2, 2019 request for reconsideration, counsel argued that 

OWCP mischaracterized or misinterpreted the medical evidence of record and failed to sufficiently 

develop the evidence of record as to whether the diagnosed cervical radiculopathy should be 

accepted as causally related to the August 2016 employment injury, leading to OWCP’s April 3, 

 

4 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); W.C., 59 ECAB 372 (2008).

5 20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); 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 originally 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 2.1602.4b.

7

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

8

Id. at § 10.608(b); see C.C., supra note 5; E.R., Docket No. 09-1655 (issued March 18, 2010).
6

2018 decision to be rendered in error. Counsel argued that OWCP failed to address appellant’s

argument that radiculopathy manifested as pain, muscle weakness, and numbness and that 

complaints of these conditions paired with objective evidence in the form of progressive worsening 

of diagnosed cervical radiculopathy constituted rationalized medical evidence. However, these 

arguments were duplicative of arguments previously of record and therefore do not constitute a 

basis for reopening the case.9 OWCP explained in its April 3, 2018 decision that appellant failed 

to provide medical rationale explaining how an increase in her symptoms would prevent her from 

working in any capacity. The Board finds, therefore, that she did not show that OWCP erroneously 

applied or interpreted a specific point of law, and did not advance a relevant legal argument not 

previously considered by OWCP. Consequently, appellant is not entitled to further review of the 

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

§ 10.606(b)(3).10

Along with her reconsideration request, appellant submitted numerous progress reports, 

notes, evaluations, diagnostic tests, and physical therapy treatment notes, which did not address 

the specific period of disability claimed. She submitted reports from Dr. Yee, dated October 31 

through December 6, 2017, and reports and progress notes from Dr. Le, dated December 12, 2017 

through April 11, 2019. OWCP also received a February 10, 2018 report from Dr. Otten which 

indicated that appellant’s comorbidities included cervical degenerative disc disease with upper 

right extremity radiculopathy and right shoulder pain with mild rotator cuff pathology and which 

necessitated work restrictions. The Board finds that the evidence submitted is irrelevant as to 

whether she has established disability due to her accepted conditions. The evidence does not 

address the claimed period of disability or offer an opinion on causal relationship. 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.11 As such, appellant is not entitled to further review of the 

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

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.13

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).

 

9 See C.M., Docket No. 19-1610 (issued October 27, 2020).

10 Supra note 5 at § 10.606(b)(3).

11 See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. 

Nixon-Steward, 52 ECB 140 (2000).

12 Supra note 10.

13 C.M., supra note 9; A.K., Docket No. 09-2032 (issued August 3, 2010); 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).
7

ORDER

IT IS HEREBY ORDERED THAT the June 11, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 26, 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