United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

U.S. POSTAL SERVICE, U.S. POSTAL 

INSPECTION SERVICE, Cleveland, OH, 

Employer

__________________________________________

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Docket No. 23-0755

Issued: October 2, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 May 1, 2023 appellant, through counsel, filed a timely appeal from a February 1, 2023 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 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 counsel only appealed from OWCP’s February 1, 2023 nonmerit decision. Although 

OWCP’s January 9, 2023 merit decision is within the Board’s jurisdiction, counsel did not appeal from that decision. 

Therefore, the Board will not address the January 9, 2023 merit decision in this appeal. 20 C.F.R. § 501.3(c)(4);see 

D.K., Docket No. 22-0111 (issued February 8, 2023); E.R., Docket No. 20-1110 (issued December 23, 2020).
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 May 10, 2022 appellant, then a 51-year-old postal police officer, filed an occupational 

disease claim (Form CA-2) alleging that he sustained lower back and left leg conditions due to 

factors of his federal employment, including wearing heavy gear/equipment, and vibrations from 

driving a patrol vehicle. He noted that he first became aware of his condition on April 15, 2016 

and realized its relation to factors of his federal employment on April 11, 2022. 

OWCP received appellant’s April 30, 2022 narrative statement. Appellant related that in 

2013 he transitioned to a police officer position from his prior 17-year position as a sales and 

service distribution associate. He further related that he underwent an unsuccessful lumbar 

surgical procedure in 2016. By 2019 appellantindicated that he experienced debilitating pain after 

driving a patrol response vehicle and wearing duty gear.

In an undated report, Dr. Eugene Mennow, a chiropractor, reported that appellant had been 

a patient for lower back pain since January 14, 2021 and that he had a history of lumbar surgery 

in 2016. He noted appellant’s treatments and that working caused an increase in appellant’s left 

leg pain symptoms. Dr. Mennow opined that it was likely that carrying extra weight around the 

trunk caused an increased strain in the lumbar spine and contributed to further deterioration of 

appellant’s previous lumbar condition. 

In an April 11, 2022 report, Dr. Gabriel A. Smith, a Board-certified neurosurgeon, 

provided a history of appellant’s lumbar condition and medical course. He noted a prior L5-S1 

laminectomy. Based on his examination and a review of a magnetic resonance imaging (MRI) 

scan, Dr. Smith assessed left lumbar radiculopathy.

In a development letter dated May 18, 2022, OWCP informed appellant of the deficiencies 

in his claim. It informed him of the type of additional factual and medical evidence needed and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

In an undated report,Dr. Kyle J. Wear, an internist, provided a timeline of appellant’s visits 

for complaints of back pain. He indicated that appellant currently worked as a police officer and 

was required to wear 26 pounds of equipment/protective gear daily for his job. Dr. Wear opined 

that the strain from the weight of that equipment had likely contributed to/ exacerbated appellant’s

chronic low back pain.

By decision dated July 14, 2022, OWCP denied appellant’s occupational disease claim, 

finding that he had not established that a medical condition was diagnosed in connection with the 

claimed work factors. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

On August 5, 2022 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

December 8, 2022. OWCP received a November 3, 2022 report, wherein Dr. Wear addressed 
3

appellant’s diagnosed lumbar radiculopathy. He indicated that he first examined appellant on 

March 1, 2019. Dr. Wear noted that appellant’s work as a police officer required him to wear 

approximately 26 pounds of gear daily. He opined that the daily weight of this gear caused an 

exacerbation of appellant’s radicular symptoms. 

By decision dated January 9, 2023, OWCP’s hearing representative modified the July 14, 

2022 decision finding that appellant had established a medical diagnosis. However, the claim 

remained denied, as the medical evidence of record was insufficient to establish causal relationship 

between appellant’s diagnosed medical condition and the accepted employment factors. The 

hearing representative noted that no additional evidence had been received. 

On January 23, 2023 appellant, through counsel, requested reconsideration. 

Appellant resubmitted a copy of Dr. Wear’s November 3, 2022 report. 

By decision dated February 1, 2023, OWCP denied appellant’s request for reconsideration,

of the merits of his claim, pursuant to 5 U.S.C. § 8128(a). It found Dr. Wear’s November 3, 2022 

report to be repetitious because it “was previously received on December 6, 2022, prior the 

January 9, 2023 decision.”

LEGAL PRECEDENT

Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it 

will review an award for or against compensation, either under its own authority or on application 

by a claimant.4

Section 10.608(b) of OWCP’s regulations provide that a timely request for reconsideration 

may be granted if OWCP determines that the claimant has presented evidence and/or argument 

that meet at least one of the standards described in section 10.606(b)(3). 5 This section provides 

that the request for reconsideration must be submitted in writing and set forth arguments and 

contain evidence that: (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. 6 Section 10.608(b) 

provides that, when a request for reconsideration is timely, but fails to meet at least one of these 

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

for a review on the merits.7

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at § 10.606(b)(3); see R.T., Docket No. 22-1305 (issued April5, 2023); L.D., Docket No. 18-1468 (issued 

February 11, 2019).

7

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued 

April 2, 2020).
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.8 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.9 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.10

ANALYSIS

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

the merits of his claim.

On reconsideration, appellant resubmitted the November 3, 2022 report of Dr. Weaver. 

While this evidence was previously of record, it was not previously considered or addressed by 

the hearing representative in the January 9, 2023 decision. The Board has held that to support a 

request for reconsideration, an appellant is not required to submit all evidence which may be 

necessary to discharge his or her burden of proof.11 He or she needs only to submit relevant, 

pertinent evidence not previously considered by OWCP. 12 The Board finds that Dr. Wear’s 

November 3, 2022 report constitutes relevant and pertinent new evidence not previously 

considered by OWCP. Therefore, the Board finds that appellant is entitled to a review of the merits 

based on the third requirement of 20 C.F.R. § 10.606(b)(3).13 Accordingly, the Board will set 

aside OWCP’s February 1, 2023 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 his claim.

8

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.

9

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

10 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

11 See L.W.,Docket No. 22-0546 (issued January 20, 2023); L.O.,Docket No. 21-0030 (issued May 19, 2022);

Annette Louise, 54 ECAB 783 (2003).

12 Id.

13 20 C.F.R. § 10.606(b)(3); see I.V.,Docket No. 21-1356 (issued February 9, 2023); L.D.,Docket No. 22-0214 

(issued September 21, 2022); M.N.,Docket No. 22-0243 (issued June 28, 2022); see also S.C.,Docket No. 20-1661 

(issued May 6, 2022); J.T., Docket No. 20-1301 (issued July 28, 2021); M.J.,Docket No. 20-1067 (issued 

December 23, 2020).
5

ORDER

IT IS HEREBY ORDERED THAT the February 1, 2023 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: October 2, 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