United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.J., Appellant

and

U.S. POSTAL SERVICE, ISTROUMA 

STATION, Baton Rouge, LA, Employer

__________________________________________

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Docket No. 21-0866

Issued: January 14, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On May 19, 2021 appellant 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 December 17, 2019, to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of this case.

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 October 26, 2010 appellant, then a 38-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed two herniated discs in her lower back due 

1

5 U.S.C. § 8101 et seq.
2

to factors of her federal employment including heavy lifting, bending, stooping, walking, twisting, 

and driving a mail truck. She noted that she first became aware of her condition and realized its 

relationship to her federal employment on October 24, 2010. Appellant had stopped work on 

October 14, 2010. On January 6, 2011 OWCP accepted her claim for aggravation of degeneration 

of lumbar or lumbosacral intervertebral disc, aggravation of lumbar spondylosis with myelopathy, 

and aggravation of intervertebral disc disorder with myelopathy lumbar region. Appellant returned 

to light-duty work on February 11, 2011.2

On August 11, 2013 appellant filed a notice of recurrence (Form CA-2a) alleging that she 

stopped work on June 27, 2013 due to increased pain from her accepted October 14, 2010 

employment injury. OWCP accepted this recurrence claim and authorized epidural spinal 

injections. On September 18, 2013 it paid appellant wage-loss compensation on the periodic rolls 

effective August 10, 2013. Appellant returned to light-duty work on October 1, 2013as a modified 

city carrier.

On September 30, 2019 appellant underwent the third in a series of three OWCP-approved 

lumbar epidural spinal injections.

In a note dated October 2, 2019, appellant’s attending physician, Dr. Thad S. Broussard, a 

Board-certified orthopedic surgeon, found that she was totally disabled from work due to lumbar 

spondylosis with radiculopathy and referred her to Dr. Kelly J. Scrantz, a Board-certified

neurosurgeon.

On October 14, 2019 appellant filed a claim for wage-loss compensation (Form CA-7) 

claiming intermittent disability from September 28 through October 11, 2019. On the 

accompanying time analysis form (Form CA-7a) the employing establishment indicated that she 

sought medical treatment on September 30, 2019 and that she used eight hours of sick leave on 

October 3 and 4, 2019. Appellant continued to use leave without pay from October 5 

through 25, 2019. 

In an October 18, 2019 development letter, OWCP advised appellant that it had not 

received sufficient evidence to support her claim for wage-loss compensation. It informed her of 

the type of evidence needed to establish her wage-loss compensation claim and afforded her 30 

days to submit the necessary evidence.

On November 5, 2019 Dr. Broussard completed a narrative report and diagnosed lumbar 

spondylosis with radiculopathy, low back pain, and knee pain. He found that appellant’s lumbar 

epidural steroid injections were not helping her and referred her for examination with Dr. Scrantz, 

scheduled for November 18, 2019. Dr. Broussard concluded that appellant was totally disabled 

from work until Dr. Scrantz’ examination. He indicated that she had difficulty standing, walking, 

bending, lifting, twisting, and stooping, and that those activities were aggravating factors to her 

continued back pain.

2 The record demonstrates that the employing establishment had no light-duty work available from October 14, 

2010 through February 10, 2011. 
3

On November 7, 2019 appellant filed another Form CA-2a recurrence claim. She alleged 

that she stopped work on October 3, 2019 due to her accepted October 24, 2010 employment 

injury.

In a November 14, 2019 development letter, OWCP provided appellant with the definition 

of a recurrence of disability and requested that she submit additional factual and medical evidence 

supporting that she was disabled from work for the period beginning October 3, 2019. It 

specifically requested that she submit a physician’s opinion explaining how the claimed disability 

was due to the October 24, 2010 employment injury. OWCP afforded appellant 30 days to provide 

the requested evidence.

By decision dated November 19, 2019, OWCP denied appellant’s claims for wage-loss 

compensation for total disability from work commencingOctober 5, 2019 and continuing. It found 

that the medical evidence of record was insufficient to establish that she had a return or increase 

of disability due to a change or worsening of her October 24, 2010 employment injury.

On November 18, 2019 appellant was examined by Kristen Dubols, a nurse practitioner.

By decision dated December 17, 2019, OWCP denied appellant’s claim for a recurrence of 

disability commencing October 3, 2019. It found that the November 18, 2019 report was 

insufficient to establish her claimed recurrence of disability as it was signed by a nurse practitioner 

and not cosigned by a qualified physician such that it was medical evidence in accordance with 

FECA.

OWCP subsequently received additional evidence. In a December 2, 2019 note,

Dr. Broussard requested a functional capacity evaluation (FCE) to determine appellant’s work 

restrictions.

In reports dated December 18, 2019 and January 22, 2020, Dr. Scrantz diagnosed lumbar 

intervertebral disc degeneration, lumbar radiculopathy, and lumbar spinal stenosis. He reviewed 

appellant’s magnetic resonance imaging (MRI) scan, finding worsening degenerative joint disease 

and facet degenerative joint disease at L4-5, and L5-S1. On physical examination Dr. Scrantz

found right greater than left S1 radiculopathy, attributable to the L5-S1 space worsening stenosis. 

He found that appellant had reached maximum medical improvement without surgery. Dr. Scrantz 

also referred appellant for an FCE to determine her work abilities.

A December 17, 2019 FCE found that appellant could perform medium physical demand 

work as required by her light-duty position of customer service supervisor.

In a December 23, 2019 note, Dr. Broussard found that appellant could function at her 

current job within the confines of the FCE. He reported that appellant was experiencing pain in 

her legs due to spinal stenosis and that she might eventually require surgery. 

On December 17, 2020 appellant requested reconsideration of the December 17, 2019 

decision which denied her claim for a recurrence of disability commencing October 3, 2019.

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

the merits of her 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 or her 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 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.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 f or reconsideration without 

reopening the case for review on the merits.7

ANALYSIS

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

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

The underlying issue on reconsideration is the medical question of whether appellant had 

sustained a recurrence of disability commencing October 3 due to her accepted employment injury. 

3

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).

4

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).

5

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.

6

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

7

Id. at § 10.608(b); E.R.,Docket No. 09-1655 (issued March18, 2010).
5

Along with the December 17, 2020 reconsideration request,

8 appellant provided notes dated 

November 18 and December 16, 2019 by Dr. Scrantz, finding worsening degenerative joint 

disease and facet degenerative joint disease at L4-5, and L5-S1 based on MRI scan findings. On 

physical examination he found right greater than left S1 radiculopathy, attributable to the L5-S1 

space worsening stenosis. As these notes address the underlying issue of appellant’s accepted 

medical conditions, the notes constitute relevant and pertinent new evidence that is not 

substantially similar to evidence previously considered. Therefore, the Board finds that the 

submission of this evidence requires reopening of appellant’s claim for merit review pursuant to 

the third requirement of 20 C.F.R. § 10.606(b)(3).

Consequently, the Board will set aside OWCP’s March 9, 2021 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 of 

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

8

In computing a time period, the date of the event from which the designated period of time begins to run shall not 

be included, while the last day of the period so computed shall be included unless it is a Saturday, Sunday or a legal 

holiday. Appellant’s December 17, 2020 request for reconsideration was received on the 365th day following the 

December 17, 2019 decision, and was therefore timely. B.W., Docket No. 20-1512 (issued August 24, 2021). 

Compare T.M., Docket No. 20-1306 (issued July 22, 2021) (finding that appellant has one calendar year to request 

reconsideration, i.e., from September 5, 2018 to September 5, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the March 9, 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: January 14, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board