C.H. and U.S. Postal Service, Faribault Post Office (Board decision, March 4, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal carrier asked OWCP to reopen a denied right-shoulder occupational disease claim. The Board found that new medical records did not address the unresolved factual question of which work factors occurred. Her request also identified no new legal argument or error. It affirmed the denial of merit reconsideration.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Denial of merit reconsideration affirmed.
• Key point: New medical records did not address the missing factual basis of the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.H., Appellant
)
)
and ) Docket No. 23-1112
) Issued: March 4, 2024
U.S. POSTAL SERVICE, FARIBAULT POST
)
OFFICE, Faribault, MN, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 22, 2023 appellant filed a timely appeal from a May 22, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from the last merit decision dated December 21, 2022 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act (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 September 26, 2022 appellant, then a 58-year-old rural carrier, filed an occupational disease claim (Form CA-2) alleging that she developed a right shoulder condition due to factors of her federal employment. She recounted that her current right shoulder condition began in October 2021 and that she had experienced “other episodes” which lasted only a few days. Appellant indicated that she first became aware of her condition and of its relationship to her federal employment on September 17, 2022. She did not stop work. Appellant accepted a modified rural carrier position on October 12, 2022.

In a development letter dated October 6, 2022, OWCP informed appellant of the deficiencies in her claim. It advised her of the type of factual and medical evidence needed to establish her claim and provided her with a questionnaire for her completion. In a separate development letter of even date, OWCP requested additional information from the employing establishment. It afforded both parties 30 days to respond. Appellant submitted an incomplete copy of the development questionnaire with a copy of the physical requirements of a rural carrier, signed, and dated October 25, 2022.

Appellant provided treatment notes and diagnostic studies dated September 21 through October 3, 2022 from Megan Alm and Travis Roethler, physician assistants, and Stephanie A. Attenberger, a licensed practical nurse.

On September 22, 2022 Dr. Nicholas G. Rhodes, a Board-certified radiologist, interpreted right shoulder x-rays as demonstrating mild-to-moderate right glenohumeral and mild right acromioclavicular joint degeneration.

Dr. Kodjo Bossou, a physician Board-certified in preventative medicine, examined appellant on October 3, 2022 and recounted that she attributed her right shoulder symptoms to increased work including overhead activities involving reaching while sorting and delivering mail. He diagnosed right shoulder tendinitis and bursitis. Dr. Bossou opined that the conditions were work related.

In November 7 and December 5, 2022 treatment notes and form reports, Brianne E.
Gustafson, a physician assistant, related that appellant experienced an increased workload with overhead reaching in September 2022 and diagnosed right shoulder bursitis, tendinitis, and impingement syndrome.

By decision dated December 21, 2022, OWCP denied appellant’s occupational disease claim, finding that the evidence of record was insufficient to establish the implicated factors of federal employment. It noted that she did not complete the October 6, 2022 development questionnaire. OWCP concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

Appellant continued to provide notes from Ms. Gustafson dated December 29, 2022 through March 23, 2023. Ms. Gustafson also completed a form report dated March 10, 2023.

On March 10, 2023 Dr. Bossou recounted appellant’s allegations of increased overhead reaching at work in September 2022. He reviewed a March 1, 2023 magnetic resonance imaging (MRI) scan which demonstrated full thickness tear of the supraspinatus tendon, partial thickness tear of the subscapularis tendon, a longitudinal split tear of the biceps tendon, superior labrum, anterior to posterior tear, and moderate bursitis. Dr. Bossou described appellant’s previous right shoulder pain beginning in 2019. He diagnosed right shoulder bursitis, tendinitis, impingement syndrome, right rotator cuff tear, and right labral tear. Dr. Bossou indicated that appellant’s shoulder conditions were not work related.

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 On May 15, 2023 appellant requested reconsideration. She provided physical therapy notes, a March 1, 2023 MRI scan, and an April 28, 2023 note from Ms. Gustafson.

By decision dated May 22, 2023, OWCP denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a matter of right.1 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.2 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.3 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.4 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.5

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

Appellant’s May 15, 2023 request for reconsideration neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law. Moreover, it did not advance a relevant legal argument not previously considered by OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).6

1
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 [appellant’s] own motion or on application.” 5 U.S.C. § 8128(a). 2 20 C.F.R. § 10.607.
3
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 (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 Id. at § 10.606(b)(3).
5
Id. at § 10.608(a), (b).
6
See V.M., Docket No. 22-0010 (issued November 8, 2022); J.V., Docket No. 21-0252 (issued September 23, 2021); C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued October 25, 2018).

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 In support of her reconsideration request, appellant submitted medical evidence including a March 1, 2023 MRI scan, physical therapy notes, and an April 28, 2023 note from Ms. Gustafson. While this medical evidence is new, it is not relevant because it does not address the underlying issue of the present case which is factual in nature, i.e., whether she submitted factual evidence to establish the implicated factors of her federal employment. The Board has held that the submission of evidence or argument which does not address the particular issue involved does not constitute a basis for reopening a case.7 As appellant did not provide relevant and pertinent new evidence, she is not entitled to a review of the merits based on the third above- noted requirement under 20 C.F.R. § 10.606(b)(3).8

The Board, accordingly, finds that appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.9

CONCLUSION

The Board further finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

7
V.M., id.; D.J., Docket No. 21-0371 (issued November 24, 2021); G.K., Docket No. 20-1026 (issued December 11, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979). 8 See T.W., Docket No. 18-0821 (issued January 13, 2020).
9
D.G., Docket No. 19-1348 (issued December 2, 2019).

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 ORDER

IT IS HEREBY ORDERED THAT the May 22, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 4, 2024
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

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