United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fountain, CO, Employer 

__________________________________________ 

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Docket No. 15-0964 

Issued: December 28, 2015 

Appearances: Case Submitted on the Record

Thomas P. Fochs, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 27, 2015 appellant, through counsel, filed a timely appeal from a February 20, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from January 31, 2014, the date of the most recent merit decision, to the 

filing of this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On November 27, 2013 appellant, then a 59-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that on or before November 30, 2010 she sustained a left 

 1

 5 U.S.C. § 8101 et seq. 
2

knee condition requiring total arthroplasty. She attributed her condition to prolonged walking, 

standing, mounting and dismounting her postal vehicle, and pushing and pulling a nutting cart to 

load and unload her vehicle. 

In a December 12, 2013 letter, OWCP advised appellant of the type of additional 

evidence needed to establish her claim, including factual corroboration of the identified work 

factors, and an opinion from her attending physician supporting that those factors caused the 

claimed condition. In an attached questionnaire, it requested that she provide a detailed 

description of the work activities which she believed contributed to her condition, and the 

frequency and duration of these tasks. OWCP also requested that appellant describe all activities 

outside of her federal employment, including sports, hobbies, computer usage, musical 

instruments that she played, non-federal employment, volunteer, or recreational activities. It 

afforded her 30 days to submit such evidence. Appellant did not respond to the injury. 

In a second December 12, 2013 letter, OWCP requested that the employing establishment 

provide comments from a knowledgeable supervisor on the accuracy of appellant’s statements. 

Appellant’s supervisor responded on January 3, 2014, explaining that appellant’s assigned 

delivery route required “entering and exiting a motor vehicle” as many as 500 times a work shift. 

Appellant was also required to lift up to 70 pounds, and push and pull equipment loaded with up 

to 250 pounds of mail and parcels. The supervisor emphasized that he had “no reason to doubt 

[appellant’s] statement relative to this claim.” He provided a position description confirming the 

duties appellant described. 

By decision dated January 31, 2014, OWCP denied appellant’s claim, finding that she did 

not establish the described work factors as factual because she did not respond to the 

December 12, 2013 questionnaire. It further found that she failed to submit medical evidence. 

In an October 13, 2014 letter, appellant asserted that an enclosed April 7, 2014 report 

from Dr. Jack L. Rook, an attending Board-certified physiatrist, addressed “all the requirements 

needed by [OWCP].” She did not request reconsideration. 

Dr. Rook’s April 7, 2014 report noted that appellant had worked as a letter carrier for the 

previous 19 years, assigned to walking routes. As of September 2011, appellant cased and 

delivered a route requiring her to dismount her postal vehicle approximately 450 times a work 

shift. Dr. Rook related her complaints of progressively worsening bilateral knee pain since 

approximately 2004, exacerbated by dismounting her postal vehicle and walking while 

delivering mail. Appellant underwent bilateral medial meniscus repairs using her private health 

insurance. Her symptoms abated for several years, but eventually returned. A 2010 magnetic 

resonance imaging (MRI) scan “demonstrated tricompartmental osteoarthritis with severe 

patellofemoral changes and advanced degeneration of the remaining compartments.” Since 

2010, appellant underwent bilateral total knee arthroplasties. OWCP accepted her right knee 

condition based on the identical work factors and pathophysiologic mechanisms.2

 Dr. Rook 

opined that casing mail and walking while delivering mail placed “significant stress on 

[appellant’s] left knee joint,” causing “a direct impact with the femoral condyles against the 

 2

 Under File No. xxxxxx522, OWCP accepted an aggravation of right knee arthritis, culminating in a total right 

knee arthroplasty. 
3

menisci and tibial plateaus,” eroding “the cartilage on the opposing surfaces,” and accelerating 

the development of osteoarthritis. Entering and dismounting appellant’s postal vehicle 

approximately 450 times a work shift required contraction of the quadriceps musculature to 

straighten her left leg, forcing the patella into the groove formed by the femoral condyles. This 

process led to “progressive erosion of the opposing cartilaginous surfaces which include the 

undersurface of the patella and the femoral condyle.” Dr. Rook noted that appellant had no 

nonoccupational factors that would cause the left knee condition. 

In a January 15, 2015 letter received on January 26, 2015, appellant requested 

reconsideration, asking that OWCP review the April 7, 2014 report from Dr. Rook. 

By decision dated February 20, 2015, OWCP denied appellant’s request for a review of 

the merits of the claim, as the evidence submitted was irrelevant or immaterial to the claim. It 

found that as her claim was denied based on fact of injury, Dr. Rook’s medical opinion was 

irrelevant and did not warrant a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provide that a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) submit relevant and 

pertinent new evidence not previously considered by OWCP.4 Section 10.608(b) provides that 

when an application for review of the merits of a claim does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.5

 

In support of 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.6

 Appellant need only 

submit relevant, pertinent evidence not previously considered by OWCP.7

 When reviewing an 

OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.8

 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

6 Helen E. Tschantz, 39 ECAB 1382 (1988). 

7 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

8 Annette Louise, 54 ECAB 783 (2003). 
4

ANALYSIS 

Appellant claimed that she sustained a left knee condition. In her November 27, 2013 

claim form, the only document of record containing her direct description of work factors, she 

attributed her condition to walking, standing, pushing and pulling a loaded nutting cart, and 

entering and exiting her delivery vehicle. On December 12, 2013 OWCP requested that 

appellant submit a detailed statement specifying the frequency and duration of the tasks listed on 

her claim form. Although appellant’s supervisor provided a job description and generally 

corroborated appellant’s remarks on her claim form, appellant did not provide the information 

OWCP requested. Due to the lack of appellant’s factual statement, OWCP issued its January 31, 

2014 decision denying the claim, finding that appellant failed to establish factual component of 

fact of injury, as the claimed work incidents were not established. 

Appellant requested a merit review on January 26, 2015, asserting that a medical report 

from Dr. Rook, an attending Board-certified physiatrist, was sufficient to establish fact of injury. 

However, OWCP denied reconsideration by decision dated February 20, 2015, finding that the 

evidence submitted in support of the request was irrelevant to the claim. The issue now before 

the Board is whether OWCP properly denied appellant’s January 26, 2015 request for a merit 

review. This entails examining the evidence submitted, and determining whether it showed that 

OWCP committed a legal error in its January 31, 2014 decision, or whether it constituted new, 

relevant evidence or argument on the critical issue of whether the work incidents were 

established. 

In support of her reconsideration request, appellant submitted Dr. Rook’s April 7, 2014 

report, relating her account of prolonged walking, and climbing in and out of her delivery vehicle 

approximately 450 times a work shift. However, Dr. Rook is not qualified as a finder of fact in 

this case as there is no evidence that he had direct knowledge of her duties. His repetition of 

appellant’s account is not competent factual evidence.9

 Dr. Rook’s medical opinion is irrelevant 

to the underlying factual issue. The Board has held that evidence which does not address the 

particular issue involved does not constitute a basis for reopening a case.10

A claimant may be entitled to a merit review by submitting new and relevant evidence or 

argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied her request for a review of the merits of the claim. 

On appeal counsel asserts that OWCP improperly rejected appellant’s uncontroverted 

explanation of events. As set forth above, appellant failed to provide the detailed description of 

her work factors requested by OWCP. Counsel also contends that OWCP improperly rejected 

Dr. Rook’s opinion as it relied on him to accept a right knee condition and arthroplasty in one of 

appellant’s other claims. However, as OWCP denied the claim based on failure to establish a 

factual basis for the claim, Dr. Rook’s medical opinion is irrelevant. Additionally, counsel 

 9 See Bonnie A. Contreras, 57 ECAB 364 (2006) (where a claimant did not establish an employment incident 

alleged to have caused an injury, it was not necessary to consider any medical evidence). 

10 E.O., Docket No. 15-0635 (issued June 5, 2015). See also Edward Matthew Diekemper, 31 ECAB 224 (1979). 
5

alleges that OWCP did not meet its obligation to assist in the development of the evidence. The 

Board finds that OWCP properly developed appellant’s claim. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for review of the merits 

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

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 20, 2015 is affirmed. 

Issued: December 28, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board