United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

U.S. POSTAL SERVICE, DALLAS POST 

OFFICE, Dallas, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-1328 

Issued: July 5, 2023

Appearances: Case Submitted on the Record

Erik Blowers, 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 September 19, 2022 appellant, through counsel, filed a timely appeal from a September

8, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant 

to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the 

Board lacks jurisdiction to review 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 Counsel identified only the September 8, 2022nonmerit decision on the application for review (AB-1 Form). As 

such the May25, 2022 merit decision is not before the Board on the current appeal. See 20 C.F.R. § 501.3; see also 

V.G., Docket No. 22-0805 (issued October 20, 2022); S.K., Docket No. 22-0248 (issued June 27, 2022); M.M.,Docket 

No. 20-0523 (issued August 25, 2020).

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 her claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On July 29, 2019 appellant, then a 52-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on July 26, 2019 she sustained a contusion to her right 

shoulder when she flipped her postal vehicle in a ditch while in the performance of duty. She 

stopped work on July 26, 2019. OWCP accepted the claim for laceration of the right forearm,

muscle spasm, cervical spine sprain, and cervicalgia. It paid appellant wage-loss compensation on 

the periodic rolls beginning September 10, 2019.

Appellant’s attending physician, Dr. Ernest L. Howard, a Board-certified physiatrist, 

completed reports dated April 16 through July 15, 2020 and diagnosed cervicalgia, muscle spasm 

and cervical spine sprain. He reviewed a September 19, 2019 magnetic resonance imaging (MRI) 

scan which demonstrated bulging discs at C4-5 and C5-6, and posterior paracentral disc herniation 

with superior disc migration at C6-7. Dr. Howard recommended physical therapy, medication, 

and injections.

On May 14, 2020 Dr. Mark Feeman, an osteopath, completed a work capacity evaluation 

(Form OWCP-5c) and advised that appellant could return to work with restrictions of occasional 

pushing, pulling, and lifting up to 10 pounds, and occasional twisting, bending, stooping, squatting, 

kneeling, and climbing. He indicated that she could operate a motor vehicle at work for 4 hours 

and that she needs a 30-minute break every hour. Dr. Feeman based his work restrictions on 

appellant’s May 12, 2020 functional capacity evaluation.

On July 13, 2020 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions to Dr. John G. Keating, an orthopedic surgeon, for a second 

opinion examination to determine whether appellant continued to have residuals or disability 

causally related to her July 26, 2019 employment injury. In his August 10, 2020 report,

Dr. Keating reviewed the SOAF and medical history. He performed a physical examination and 

diagnosed cervicalgia, laceration right forearm, and cervical sprain. Dr. Keating responded to 

OWCP’s questions and reported no objective findings supporting ongoing medical conditions. He 

found no evidence of cervical radiculopathy, cervical spondylosis, and neck arthritis. Dr. Keating 

noted that appellant’s MRI scan demonstrated degenerative cervical changes and opined that these

degenerative changes in her neck were possibly aggravated by the employment incident, but

determined that appellant had sufficient treatment and time for her conditions to resolve. He 

further opined that there was nothing to indicate that the conditions had not resolved, and that there 

were no ongoing signs of disability. Dr. Keating concluded that she had no ongoing residuals of 

her July 26, 2019 employment injury and that she could return to her date-of-injury position.

By notice dated August 19, 2020, OWCP advised appellant that it proposed to terminate 

her wage-loss compensation and medical benefits based on Dr. Keating’s opinion that the accepted 

conditions had ceased without residuals and that she was not disabled from work due to the 

accepted conditions. It afforded her 30 days to submit additional evidence or argument challenging 

the proposed action.
3

In an August 12, 2020 report, Dr. Howard diagnosed cervicalgia, chronic pain syndrome, 

and muscle spasms. He performed an injection of the tendon sheath and recommended continued 

medication.

By decision dated September 23, 2020, OWCP finalized the termination of appellant’s 

wage-loss compensation and medical benefits, effective September 28, 2020. It found that 

appellant no longer had employment-related disability or residuals and that the weight of the 

medical evidence rested with the August 10, 2020 report of Dr. Keating.

On October 1, 2020 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review.

OWCP continued to receive medical evidence. On September 30, 2020 appellant was 

transported to the local hospital by ambulance due to right-side neck and shoulder pain. She 

recounted that her return to work caused her injury to “flare.” Dr. Stuart B. Resnick, a radiologist,

performed computerized tomography (CT) scans of appellant’s thoracic and cervical spine and 

found disc protrusion at C6-7 and right paracentral disc osteophyte complex at T7-8. He also 

reported degenerative changes at C5-6 and C6-7.

In a report dated October 7, 2020, Dr. Howard noted appellant’s increased neck pain

following her return to work on September 26, 2020 and requested electromyogram (EMG) studies

due to pain and weakness in the C5-6 nerve distribution.

Dr. Ki-Hon Lin, an orthopedic surgeon, examined appellant on October 23, 2020 and 

recounted her symptoms of neck pain and the inability to turn her neck. On November 20, 2020 

appellant underwent a second cervical MRI scan which demonstrated mild facet arthropathy and 

disc osteophyte formation at C4-5, C5-6, and C6-7.

In a note dated December 16, 2020, Dr. Elmore Alexander, an osteopath, noted appellant’s 

history of injury on July 26, 2019 and reviewed her medical history. He performed a physical 

examination and diagnosed shoulder and cervical injury. Appellant underwent an additional 

cervical MRI scan on December 16, 2020 which demonstrated spurring and bony foraminal 

stenosis at C4-5 and C5-6 and small midline protrusion at C6-7 and spurring with bilateral bony 

foraminal stenoses.

By decision dated January 22, 2021, OWCP’s hearing representative found that OWCP 

had met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits 

based on Dr. Keating’s August 10, 2020 report. He further found that appellant had not established 

any additional conditions.

OWCP continued to receive evidence. Appellant completed an additional narrative 

statement disagreeing with findings and conclusions in Dr. Keating’s August 10, 2020 report. She 

asserted that he did not complete a physical examination or testing.

On April 2, 2021 appellant requested reconsideration. By decision dated May 27, 2021, 

OWCP denied modification of its prior decisions. 

On July 7, 2021 appellant requested reconsideration. She provided a June 29, 2021 

narrative statement alleging that Dr. Keating’s report was inaccurate as he did not examine her and 
4

did not have or review her medical records. By decision dated October 4, 2021, OWCP denied 

modification.

On February 24, 2022 appellant again requested reconsideration. In a May 11, 2022 

attending physician’s report (Form CA-20), Dr. Howard indicated that appellant was partially 

disabled. By decision dated May 25, 2022, OWCP denied modification.

On June 10, 2022 appellant requested reconsideration. She provided a narrative statement 

alleging that Dr. Keating’s report was not based on a physical examination and therefore was not 

factually accurate. She submitted an additional narrative statement on August 31, 2022 asserting 

that Dr. Keating did not rely on the SOAF as he reported no findings of cervical radiculopathy. 

Appellant noted that he had opined that it was “possible” that her cervical degenerative changes 

were aggravated by the employment incident. She asserted that Dr. Keating’s report lacked the 

necessary explanation of the pathophysiological processto establish that her medical conditions 

had resolved. Appellant alleged that he concluded that all conditions had resolved with no 

explanation. She concluded that Dr. Keating’s report was insufficient.

By decision dated September 8, 2022, OWCP denied appellant’s request for 

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

arguments were repetitive.

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. 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 the request is timely, but fails to meet at least 

4

5 U.S.C. § 8128(a); M.F., Docket No. 21-1221 (issued March 28, 2022); T.T., Docket No. 19-0319 (issued 

October 26, 2020); 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).

5

20 C.F.R. § 10.606(b)(3); see V.D., Docket No. 20-0569 (issued December 7, 2020); B.R., Docket No. 19-0372 

(issued February 20, 2020); see also L.G., Docket No. 09-1517 (issued March 3, 2010); 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 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 (February 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.
5

one of the requirements for reconsideration, OWCP will deny the request for 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.

In her reconsideration request, appellant argued that OWCP improperly terminated her 

wage-loss compensation and medical benefits effective September 28, 2020 based on

Dr. Keating’s August 10, 2020 second opinion report. She alleged that his report did not provide 

medical rationale in support of his opinion that the accepted conditions had resolved without 

residuals or disability. Appellant further noted that Dr. Keating did not explain how or why the 

“possible” employment-related aggravation of her underlying cervical degenerative changes had 

ceased. 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 abovenoted requirement under section 10.606(b)(3).8

 Accordingly, the Board will set aside OWCP’s 

September 8, 2022 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 her claim.

7

Id. at § 10.608(b); see M.E., Docket No. 20-0067 (issued October 15, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

8

See P.B., Docket No. 22-0544 (issued October 17, 2022); P.G.,Docket No. 20-0235 (issued July 13, 2020); T.B.,

Docket No. 18-1214 (issued January 29, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the September 8, 2022 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: July 5, 2023

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