United States Department of Labor

Employees’ Compensation Appeals Board

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L.J., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISIONS, FEDERAL 

CORRECTIONAL INSTITUTION, 

EDGEFIELD, Edgefield, SC, Employer

__________________________________________

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Docket No. 22-0348

Issued: April 28, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 15, 2022 appellant filed a timely appeal from a December 3, 2021 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from the last merit decision, dated November 16, 2020, 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 to review the merits of this case.

1 The Board notes that, following the December 3, 2021 decision, appellant submitted additional evidence to OWCP 

and to the Board 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 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

On August 15, 2019 appellant, then a 50-year-old lieutenant, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he injured his left shoulder when pulling a compound side 

door while in the performance of duty. He stopped work on August 15, 2019. OWCP accepted 

the claim for strain of the muscle and tendons of the left rotator cuff. On January 27, 2020 it 

expanded acceptance of the claim to include sprain of the ligaments of the cervical spine. 

On April 2, 2020 appellant requested medical authorization for a cervical spine surgery 

based on the March 31, 2020 examination and recommendation of Dr. Justin Bundy, a Boardcertified orthopedic surgeon. Dr. Bundy diagnosed cervical disc disorder at C5-6 with 

radiculopathy and cervical disc degeneration at C5-6. He reported that appellant had not improved 

with physical therapy or injections and that no further nonoperative treatment options were 

available.

In an April 6, 2020 development letter, OWCP requested additional medical evidence 

explaining how appellant’s accepted employment injuries resulted in the need for cervical spine 

surgery. It afforded him 30 days to respond. No response was received.

By decision dated May 12, 2020, OWCP denied authorization of cervical spine surgery 

because the medical evidence of record did not support that it was medically necessary to address 

the effects of his work-related injury. It explained that there was no medical evidence to establish 

that the requested surgery would be appropriate for the accepted condition of cervical sprain.

On September 3, 2020 appellant requested reconsideration of the May 12, 2020 decision 

and submitted additional evidence from Dr. Bundy. He continued to provide reports dated May 26 

through September 14, 2020 diagnosing cervical sprain, cervical disc degeneration, and cervical 

disc disorder with radiculopathy at C5-6 and recommending surgery.

By decision dated November 16, 2020, OWCP denied modification of the May 12, 2020 

decision. It found that appellant had not established that the acceptance of his claim should be 

expanded to include cervical disc degeneration at C5-6 with radiculopathy and, therefore, had not 

established that the requested surgery was medically necessary to treat an accepted condition.

3

Appellant subsequently submitted additional medical evidence including a series of reports 

dated December 8, 2020 through June 8, 2021 from Dr. Bundy diagnosing cervical disc disorder 

3 OWCP referenced a separate claim appellant filed for a February 5, 2020 traumatic neck injury under OWCP File 

No. xxxxxx116. The record reflects that he filed a Form CA-1 on February 6, 2020 alleging that on February 5, 2020 

he was injured when he assisted a staff member with an inmate who was under the influence of an unknown substance. 

By decision dated March 16, 2020, OWCP denied the claim finding that he had not established a diagnosed medical 

condition causally related to the accepted February 5, 2020 employment incident. Appellant’s claims have not been 

administratively combined by OWCP. 
3

at C5-6 with radiculopathy and recommending an anterior cervical discectomy at C5-6. In reports

dated December 16, 2020 through February 16, 2021, Dr. Shalin Shah, an osteopath, diagnosed

cervical radiculopathy and performed cervical epidural steroid injections.

On July 20, 2021 OWCP expanded the acceptance of appellant’s claim to include cervical 

disc degeneration at C5-6 with cervical disc disorder at C5-6 with radiculopathy.

OWCP received additional evidence. Dr. Shah completed a report dated March 3, 2021

diagnosing cervical radiculopathy and cervical disc disorder with myelopathy. He noted that there 

was an option for one more injection and that if this did not provide relief then surgery would be 

the best option.

On August 16, 2021 Dr. Bundy diagnosed cervical disc disorder at C5-6 with radiculopathy 

and again recommended an anterior cervical discectomy at C5-6.

On September 10, 2021 appellant requested reconsideration of the November 16, 2020 

decision. He resubmitted medical evidence of record and provided a copy of the July 20, 2021 

decision accepting his claim for the additional condition of cervical disc degeneration at C5-6 with 

cervical disc disorder at C5-6 with radiculopathy.

By decision dated December 3, 2021, OWCP denied appellant’s request for reconsideration 

of the merits of the 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 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 

4 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued 

February 11, 2019); W.C., 59 ECAB 372 (2008).

5 20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); L.D., id.; 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 (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.
4

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.8

ANALYSIS

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

the merits of his claim.

In support of his request for reconsideration of OWCP’s November 16, 2020 decision 

denying authorization for neck surgery, appellant submitted a copy of OWCP’s subsequent 

decision dated July 20, 2021 expanding the acceptance of his claim to include additional cervical 

conditions. As such, this report constitutes relevant and pertinent new evidence with regard to the 

threshold issue. Therefore, 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).9 Reopening a claim 

for merit review does not require a claimant to submit all evidence that may be necessary to 

discharge his or her burden of proof.10 Instead, the requirement pertaining to the submission of 

evidence in support of reconsideration only specifies that the evidence be relevant and pertinent 

and not previously considered by OWCP.11

As appellant has submitted new and relevant evidence, he is entitled to a review of the 

merits of the claim under 20 C.F.R. § 10.606(b)(3).12 Consequently, the case shall be remanded 

to OWCP for a review of the merits of the claim. Following any further development as deemed 

necessary, OWCP shall issue an appropriate merit decision.

CONCLUSION

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

the merits of his claim.

7 Supra note 5 at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

8 Supra note 5 at § 10.608(b); S.K., Docket No. 22-0248 (issued June 27, 2022); B.S., Docket No. 20-0927 (issued 

January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

9 F.F., Docket No. 20-1542 (issued April 9, 2021); see C.H., Docket No. 17-1065 (issued December 14, 2017); 

J.W., Docket No. 18-0822 (issued July 1, 2020); D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. 

Mroczkowski, 40 ECAB 855 (1989).

10 B.S., Docket No. 20-0555 (issued April 22, 2021); P.M., Docket No. 19-1253 (issued January 23, 2020); R.T., 

Docket No. 18-1263 (issued February 7, 2019).

11 B.S., id.; F.E., Docket No. 20-0070 (issued August 4, 2020); Helen E. Tschantz, 39 ECAB 1382 (1988).

12 F.F., supra note 9; see also J.M., Docket No. 21-1208 (issued February 6, 2023); J.T., Docket No. 19-1829 

(issued August 21, 2020); T.P., Docket No. 18-0608 (issued August 2, 2018).
5

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: April 28, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy 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