United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.S., Appellant

and

U.S. POSTAL SERVICE, TEMPLETON 

STATION POST OFFICE, 

Colorado Springs, CO, Employer

__________________________________________

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Docket No. 20-0502

Issued: December 31, 2020

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 January 3, 2020 appellant filed a timely appeal from a July 8, 2019 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from 

OWCP’s last merit decision, dated December 17, 2018, 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 the claim.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 April 11, 2018 appellant, then a 57-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained a right shoulder injury as a result of performing 

repetitive motion when casing mail while in the performance of duty. She noted that this condition 

resulted from degeneration of an accepted right shoulder injury on November 29, 2004.3 OWCP 

assigned File No. xxxxxx338. Appellant indicated that she first became aware of her condition on 

January 26, 2018 and first realized it was related to her federal employment on March 28, 2018. 

She stopped work on April 12, 2018.

In progress notes dated January 26, 2018, Dr. James P. Duffey, a Board-certified 

orthopedic surgeon, noted that appellant had a work-related injury in 2004 and had continued to 

live with daily shoulder pain since that time. He related that appellant fell at home on 

December 30, 2017, she did not land directly on the shoulder, but she subsequently had a 

significant increase in her shoulder pain. On examination of the right shoulder, Dr. Duffey

observed atrophy of the supraspinatus and infraspinatus fossa, limited active range of motion, and 

pain with manipulation on passive range of motion. He reviewed recent magnetic resonance 

imaging (MRI) scans of her right shoulder and compared them to a 2004 MRI scan. Dr. Duffey

observed advanced rotator cuff arthropathy with significant trophic changes at the superior 

humeral head and acromion, proximal humeral migration, degenerative changes to the humerus

along with posterior subluxation, and atrophy of the supraspinatus and infraspinatus. The MRI 

scan from 2004 demonstrated a partial supraspinatus tendon tear without evidence of muscular 

atrophy or secondary degenerative changes of the glenohumeral joint. Dr. Duffey diagnosed right 

rotator cuff arthropathy, tears of the right supraspinatus and infraspinatus, and a complete tear of 

the right rotator cuff.

By development letter dated April 20, 2018, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence needed and requested a 

narrative medical report from her physician, containing a detailed description of findings and 

diagnoses, and explaining how the claimed exposure resulted in a diagnosed condition. OWCP

afforded appellant 30 days to respond.

In a report dated March 28, 2018, Dr. Jack L. Rook, Board-certified in physical medicine 

and rehabilitation, examined appellant for complaints of right shoulder pain. He noted that 

appellant’s work for the employing establishment required casing mail and mail delivery, and that 

 

3 On November 30, 2004 appellant filed a traumatic injury claim (Form CA-1) alleging that on November 29, 2004 

she sustained a pulled muscle in her right shoulder as a result of reaching over a tray while delivering mail in the 

performance of duty. OWCP assigned that claim File No. xxxxxx115 and accepted it on January 13, 2005 for right 

rotator cuff tear and strain. On March 22, 2018 it denied appellant’s claim for recurrence under File No. xxxxxx115. 

OWCP File No. xxxxxx115 has been administratively combined with File No. xxxxxx338, with the latter serving as 

the master file. 
3

she had sustained a work-related injury on November 29, 2004. At the time, it was recommended 

that appellant proceed with surgical rotator cuff repair, but appellant chose not to proceed due to 

her fear of surgery and her ability to continue to work despite her pain. Dr. Rook noted that 

appellant’s right shoulder pain never resolved and worsened over time. Appellant was able to 

continue working until a fall at home on December 29, 2017, when she tripped and fell forward, 

landing on an outstretched arm. She developed an increase in her right shoulder pain secondary 

to this fall. Dr. Rook noted appellant’s physical examination findings and diagnosed chronic 

subluxation of the right glenohumeral joint, caused by the longstanding rotator cuff tear, advanced 

degenerative joint disease of the right shoulder, with accelerated degeneration likely associated 

with the complete and longstanding rotator cuff tear, and permanent aggravation of right shoulder 

glenohumeral arthritis.

Dr. Rook opined that, based on appellant’s history, medical records, and physical 

examination, he believed that appellant’s current condition was related to her duties as a letter 

carrier in conjunction with an underlying work-related condition from 2004. He explained that, as 

appellant never had surgery for her rotator cuff tear in 2004, the duties of repetitive reaching, 

lifting, and opening and closing the door of her postal vehicle placed stress on her right shoulder 

joint. Dr. Rook noted that her worsening condition appeared to be secondary to accelerated 

degeneration of the joint due to instability associated with the complete rotator cuff tear. He stated 

that the fall sustained at home on December 29, 2017 did not account for the chronic changes 

within her shoulder identified on her recent MRI scan. Dr. Rook explained that, from a 

pathophysiological perspective, a complete rotator cuff tear resulted in decreased support of the 

bones of the shoulder joint, causing increased mobility of the bones, which in turn caused 

accelerated wearing away of the joint surfaces. He noted that appellant’s recent MRI scan 

demonstrated malposition of her humeral head due to loss of integrity of the supporting joint 

structures, as well as the presence of advanced degenerative joint disease, greater than one would 

expect in an individual who did not have a complete rotator cuff tear for the prior 14 years. 

Dr. Rook opined that, within a reasonable degree of medical certainty, appellant’s current 

condition was related to her job duties and the underlying work-related 2004 occupational injury.

On May 2, 2018 a supervisor stated that appellant performed duties of moving equipment 

and casing mail. He noted that on the date in question appellant had injured herself at home while 

holding a grandchild, which caused her claimed injury.

Appellant responded to OWCP’s inquiries on May 2, 2018. She alleged that on 

December 29, 2017 she tripped and fell forward, landing on outstretched arms, resulting in a 

marked increase of right shoulder pain and inability to work. Appellant noted that she had 

sustained a work-related injury on November 29, 2004, which was accepted for a complete right 

shoulder rotator cuff tear under OWCP File No. xxxxxx115. Surgery was recommended, but she 

did not undergo surgery due to fear of the procedure and her ability to continue working despite 

the pain.

By decision dated July 12, 2018, OWCP denied the claim.

On August 6, 2018 appellant requested a review of the written record before a

representative of OWCP’s Branch of Hearings and Review.
4

By letter dated August 6, 2018, appellant argued that she had submitted sufficient medical 

evidence to establish her claim. She noted that her April 5, 2018 MRI scan documented a full 

thickness rotator cuff tear of the right shoulder. Appellant stated that her fall at home on 

December 29, 2017 was a “wake up” call to a more serious condition, but that the condition was 

not caused by the fall. In a separate letter of the same date, she noted that the employing 

establishment could not accommodate her work restrictions.

By decision dated December 17, 2018, OWCP’s Branch of Hearings and Review affirmed

the decision of July 12, 2018, finding that the medical evidence of record was insufficient to 

establish causal relationship between appellant’s diagnosed conditions and the accepted factors of 

her federal employment.

Appellant subsequently submitted a report from Dr. Rook dated January 16, 2019. 

Dr. Rook again noted that appellant had never had optimal treatment for her 2004 right shoulder 

injury. Appellant had chosen not to have surgery and continued to work at a job which aggravated 

her condition on a daily basis, due to the required repetitive reaching and lifting, as well as frequent 

opening and closing her vehicle door using her right upper extremity. Dr. Rook explained that 

repetitive reaching at the shoulder level caused repeated impingement of the shoulder joint with 

progressive inflammation and further breakdown of the rotator cuff fibers. He also explained that 

appellant’s other employment activities placed great stress on her right shoulder joint and torn 

rotator cuff. This repeated stress to the joint caused wear and tear of the rotator cuff fibers, with 

further degeneration and pain. In an attached duty status report of the same date, Dr. Rook 

recommended that appellant could return to work with restrictions, including, but not limited to 

use of the left upper extremity only and no long life vehicle (LLV) driving.

In a report dated February 15, 2019, Dr. Duffey noted that he had reviewed the 

documentation from Dr. Rook and completely agreed with his findings and statement. He opined 

that appellant’s work-related injury in 2004 resulted in a rotator cuff tear, which was never repaired 

surgically, and progressed over the years into rotator cuff arthropathy. Dr. Duffey noted that 

appellant had a fall at home in 2017, but that the changes seen on her MRI scan at that time were 

mostly chronic, consistent with the 2004 injury. He stated that her work as a letter carrier, 

including duties of casing mail, lifting and carrying packages, lifting and carrying cases of mail, 

and delivering mail, continued to aggravate this problem, and had progressed over the years into a 

rotator cuff arthropathy. On physical examination of the right shoulder Dr. Duffey observed active 

forward flexion and abduction to 90 degrees, passive to 30 to 40 degrees, pain on rotation, and 

reduced strength. He reviewed an MRI scan, noting a massive rotator cuff tear with significant 

and chronic atrophy of the supraspinatus, infraspinatus, and superior portion of the subscapularis,

glenohumeral degenerative changes, and proximal humeral migration. Dr. Duffey related that 

appellant was a candidate for reverse shoulder arthroplasty of the right shoulder.

On June 25, 2019 appellant requested reconsideration of the decision dated 

December 17, 2018.

By decision dated July 8, 2019, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of the case.
5

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.6 

A timely request for reconsideration, including all supporting documents, must set forth arguments 

and contain evidence that either: (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.7 

When a timely request for reconsideration does not meet at least one of the above-noted 

requirements, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.8

ANALYSIS

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

the merits of her claim.

The Board finds that appellant submitted relevant and pertinent new evidence with her 

request for reconsideration. OWCP denied appellant’s claim, finding that she had not established 

that factors of her federal employment had caused or aggravated her diagnosed right shoulder 

condition(s).

On reconsideration appellant submitted a report dated February 15, 2019 from Dr. Duffey. 

Dr. Duffey opined that appellant’s work-related injury in 2004 resulted in a rotator cuff tear, which 

was never repaired surgically, and progressed over the years into rotator cuff arthropathy. He 

noted that appellant had a fall at home in 2017, but that the changes seen on her MRI scan at that 

time were mostly chronic, consistent with the 2004 injury. Dr. Duffey explained that her work as 

a letter carrier, including duties of casing mail, lifting and carrying packages, lifting and carrying 

cases of mail, and delivering mail, continued to aggravate this problem, and had likely led to the 

progression of pain and disability over time. He also related that he had reviewed Dr. Rook’s 

documentation and completely agreed with his findings and conclusions. 

 

4 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.607.

6

Id. at § 10.607(a). 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 (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 § 10.606(b)(3).

8

Id. at § 10.608(a), (b).
6

Dr. Duffey’s February 15, 2019 report provided support regarding causal relationship of 

appellant’s right shoulder condition to duties of her federal employment. As such, the Board finds 

that the February 15, 2019 report from Dr. Duffey constituted relevant and pertinent new evidence. 

Therefore, appellant’s June 25, 2019 reconsideration request met the third above-noted 

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

Consequently, the Board finds that OWCP improperly denied merit review pursuant to 20 

C.F.R. § 10.608. The case shall therefore be remanded to OWCP to review the case records under 

OWCP File Nos. xxxxxx338 and xxxxxx115 for consideration of the merits of appellant’s claim,

to be followed by an appropriate merit decision.

CONCLUSION

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

the merits of her claim.

ORDER

IT IS HEREBY ORDERED THAT the July 8, 2019 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: December 31, 2020

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