A.L. and U.S. Postal Service, Hammond Post Office (Board decision, March 11, 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 employee sought disability compensation beginning May 20, 2023 for an accepted shoulder injury. The Board found that her physician described restrictions and possible modified work but did not establish total disability for the claimed period. It also found that her later reconsideration request raised no new legal argument or relevant evidence. It affirmed both OWCP decisions.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Disability claim and merit reconsideration request denied.
• Key point: The reports did not establish total disability, and the reconsideration request added no qualifying basis.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.L., Appellant
)
)
and ) Docket No. 23-1124
) Issued: March 11, 2024
U.S. POSTAL SERVICE, HAMMOND POST
)
OFFICE, Hammond, LA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 August 30, 2023 appellant filed a timely appeal from an August 14, 2023 merit decision and an August 24, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish disability from work commencing May 20, 2023 causally related to her accepted March 17, 2022

1
5 U.S.C. § 8101 et seq.
2
The Board notes that following the August 24, 2023 decision, appellant submitted additional evidence to OWCP. 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. employment injury; and (2) 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 March 21, 2022 appellant, then a 48-year-old rural delivery specialist, filed a traumatic injury claim (Form CA-1) alleging that on March 17, 2022 she sustained injuries to her left shoulder and arm when involved in a motor vehicle accident (MVA) while in the performance of duty. She stopped work on March 17, 2022. OWCP accepted appellant’s claim for left elbow contusion. It paid appellant wage-loss compensation on the supplemental rolls, effective May 7, 2022. On August 24, 2022 OWCP expanded the acceptance of her claim to include left shoulder joint sprain.

On December 12, 2022 OWCP referred appellant’s case, along with a statement of accepted facts (SOAF), and a series of questions to Dr. Simon Finger, a Board-certified orthopedic surgeon, for a second opinion examination and opinion regarding appellant’s employment-related conditions and disability. In a report dated February 7, 2023, Dr. Finger reviewed the medical record, including the SOAF, and described the March 17, 2022 MVA. On examination of appellant’s left shoulder, he observed full range of motion and mild impingement. In response to OWCP’s questions, Dr. Finger reported that appellant sustained diagnosed conditions of traumatic left shoulder subacromial impingement and left shoulder subacromial bursitis as a direct result of the MVA. He indicated that appellant continued to suffer residuals of her left shoulder injury and was unable to return to her date-of-injury position. Dr. Finger noted that appellant was capable of returning to full-time, limited-duty work. He completed a work capacity evaluation (Form OWCP-5c), which indicated that appellant could work eight hours per day with restrictions of no reaching above the shoulder and pushing, pulling, and lifting up to 40 pounds.

On February 27, 2023 OWCP expanded the acceptance of appellant’s claim to include left shoulder impingement syndrome and left shoulder bursitis.

On June 5, 2023 appellant filed a claim for compensation (Form CA-7) for disability from work for the period May 20 through June 2, 2023.3 On the reverse side of the claim form, the employing establishment noted that she was in a leave without pay (LWOP) status from May 20 through June 2, 2023. It also indicated that it was waiting for suitability on the job offer.

In a development letter dated June 13, 2023, OWCP informed appellant of the deficiencies of her claim for compensation. It advised her of the type of factual and medical evidence needed and afforded her 30 days to provide the necessary evidence.

3
On March 7, 2023 the employing establishment offered appellant a full-time, limited-duty position as a rural carrier, based on Dr. Finger’s February 7, 2023 work restrictions. The duties of the position included delivering rural routes (except for parcels weighing over 40 pounds) and casing rural routes using a platform. The physical requirements included lifting mail or equipment under 40 pounds; pushing mail equipment up to 40 pounds; and casing mail from a platform to avoid reaching above the shoulder.

2
 Appellant filed additional Form CA-7 claims for compensation for continued disability from work.

By decision dated July 21, 2023, OWCP denied appellant’s claim for disability from work commencing May 20, 2023. It found that the medical evidence of record was insufficient to establish disability from work during the claimed dates of disability due to her March 17, 2022 employment injury.

In a report dated July 18, 2023, Dr. Joseph M. Bonvillain, a Board-certified orthopedic surgeon, recounted appellant’s complaints of left shoulder and elbow pain. On examination of appellant’s left shoulder, he observed slight tenderness to the anterior glenohumeral joint and mildly positive impingement signs. Range of motion testing revealed decreased internal rotation. Examination of appellant’s left elbow revealed no pain over the triceps insertion and no limitations in pronation, supination, flexion, or extension. Dr. Bonvillain described the March 17, 2022 employment injury and noted that appellant had not worked since then. He diagnosed left shoulder impingement syndrome, left shoulder joint pain, and left elbow pain. Dr. Bonvillain indicated that appellant was likely capable of modified-duty work.

On August 1, 2023 appellant requested reconsideration.

In a duty status report (Form CA-17) dated July 18, 2023, Dr. Bonvillain noted examination findings of left shoulder impingement and left shoulder rotator cuff tear. He indicated that appellant could return to work with restrictions.

By decision dated August 14, 2023, OWCP denied modification of its July 21, 2023 decision.

On August 18, 2023 appellant requested reconsideration.

By decision dated August 24, 2023, OWCP denied appellant’s request for reconsideration of the merits of the claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 has the burden of proof to establish the essential elements of his or her claim, including that any disability or specific condition for which compensation is claimed is causally related to the employment injury.5 The term disability is defined as the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of the injury.6 For each period of disability claimed, the

4
Supra note 1.
5
D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 6 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 397 (1999).

3 employee has the burden of proof to establish that he or she was disabled from work as a result of the accepted employment injury.7

To establish causal relationship between the disability claimed and the employment injury, an employee must submit rationalized medical evidence.8 The opinion of the physician must be based on a complete factual and medical background, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the claimed disability and the accepted employment injury.9

The Board will not require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow an employee to self-certify his or her disability and entitlement to compensation.10

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish disability from work commencing May 20, 2023 causally related to her accepted March 17, 2022 employment injury.

In a July 18, 2023 report, Dr. Bonvillain reviewed appellant’s history and noted left shoulder examination findings of slight tenderness to the anterior glenohumeral joint and mildly positive impingement signs. He diagnosed left shoulder impingement syndrome, left shoulder joint pain, and left elbow pain. Dr. Bonvillain opined that appellant was likely capable of modified-duty work and completed a Form CA-17 advising as to her work restrictions. These reports, however, do not establish total disability from work, commencing May 20, 2023. Rather, the reports provide appellant with work restrictions and did not indicate that she was totally disabled from work during the claimed disability period due to her March 17, 2022 employment injury.11 The Board has held that medical evidence that does not address appellant’s claimed period of disability is of no probative value and insufficient to establish a disability claim.12 Therefore, these reports are insufficient to establish appellant’s claim.

7
B.O., Docket No. 19-0392 (issued July 12, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005).
8
L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017);
Kathryn E. DeMarsh, 56 ECAB 677 (2005).
9
V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).
10
See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
11
See E.B., Docket No. 20-0477 (issued January 3, 2023); S.I., Docket No. 18-1582 (issued June 20, 2019).
12
T.G., Docket No. 20-0121 (issued May 17, 2022); M.J., Docket No. 19-1287 (issued January 13, 2020); R.C., 59 ECAB 546, 551 (2008).

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 The evidence of record also contains a February 7, 2023 report by Dr. Finger, an OWCP referral physician, who noted diagnosed conditions of left shoulder subacromial impingement and left shoulder subacromial bursitis. He opined that appellant was capable of full-time, limited-duty work. Additionally, Dr. Finger did not opine that appellant was totally disabled from work, commencing May 20, 2023.

As the medical evidence of record is insufficient to establish disability from work, commencing May 20, 2023, causally related to the accepted March 17, 2022 employment injury, the Board finds that appellant has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

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.13

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or argument 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.14

A request for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought.15 If it chooses to grant reconsideration, it reopens and reviews the case on its merits.16 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.17 13 5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April 28, 2021); L.D., Docket No. 18-1468 (issued February 11, 2019); 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). 14 20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No.
19-1795 (issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008). 15 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. 16 Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).
17
Id. at § 10.608(b); see B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

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 ANALYSIS -- ISSUE 2

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 has not alleged or demonstrated that OWCP erroneously applied or interpreted a specific point of law. Moreover, appellant did not advance a relevant legal argument not previously considered by OWCP. Consequently, she is not entitled to a review of the merits of her claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).18

Furthermore, appellant did not submit any relevant and pertinent new evidence with her August 18, 2023 request for reconsideration. Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).19

Accordingly, the Board finds that appellant has not met any of the requirements enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied her request for reconsideration without reopening the case for review on the merits.20

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish disability from work commencing May 20, 2023 causally related to her accepted March 17, 2022 employment injury. The Board also finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

18
Id. at § 10.606(b)(3); G.K., Docket No. 20-1026 (issued December 11, 2020); D.T., Docket No. 20-0456 (issued September 1, 2020).
19
See R.S., Docket No. 22-1141 (issued April 18, 2023); P.W., Docket No. 20-0380 (issued November 23, 2020).
20
See L.W., Docket No. 22-0141 (issued May 16, 2022); D.R., Docket No. 18-0357 (issued July 2, 2018); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

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 ORDER

IT IS HEREBY ORDERED THAT the August 14 and 24, 2023 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: March 11, 2024
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

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