United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

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Docket Nos. 14-1187; 14-1215 

Issued: February 2, 2015 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 28, 2014 appellant, through counsel, filed timely appeals from the 

November 14, 2013 and March 19, 2014 nonmerit decisions of the Office of Workers’ 

Compensation Programs (OWCP). The last merit decision of record was the April 30, 2013 

decision of OWCP. Because more than 180 days elapsed between the last merit decision and the 

filing of appeals on April 28, 2014, and pursuant to the Federal Employees’ Compensation Act1

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3,2 the Board lacks jurisdiction to review the merits 

of the claims.3

 

 1 5 U.S.C. §§ 8101-8193. 

2

 Appellant also filed an appeal of an OWCP “decision” dated February 26, 2014 but the Board notes that this 

represents an informational letter rather than a final decision of OWCP and therefore it is not appealable to the 

Board. 20 C.F.R. § 501.2(c). The appeals for Docket No. 14-1187 and Docket No. 14-1215 concern different work 

injuries initially developed under separate file numbers (xxxxxx003 and xxxxxx402), but beginning in early 2013 

these cases were administratively associated with the same file number (xxxxxx003). 

 3 See 20 C.F.R. §§ 501.2(c) and 501.3. 
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim as the request were untimely filed and failed to demonstrate 

clear evidence of error. 

FACTUAL HISTORY 

OWCP accepted that on October 5, 2009 appellant, then a 34-year-old letter carrier, 

sustained a medial meniscus tear of her left knee due to a fall down stairs at work. Appellant 

stopped work on October 5, 2009 and began to receive compensation on the daily rolls.4

On January 12, 2010 Dr. Jeffrey F. Augustin, an attending Board-certified orthopedic 

surgeon, performed a left knee arthroscopy with lateral meniscectomy and excision of plica. The 

surgery was authorized by OWCP. 

In a June 17, 2010 decision, OWCP terminated appellant’s wage-loss compensation and 

medical benefits effective June 17, 2010 on the grounds that she ceased to have residuals of her 

October 5, 2009 work injury after that date. It based its termination action on a May 30, 2010 

report of Dr. Augustin and a May 3, 2010 report of Dr. Jerome D. Rosman, a Board-certified 

orthopedic surgeon, who served as an OWCP referral physician. 

By decision dated November 17, 2010, OWCP modified its June 17, 2010 termination 

decision to reflect that only appellant’s wage-loss compensation was terminated effective 

June 17, 2010. It indicated that the proposed notice of termination sent to appellant failed to 

mention that her medical benefits related to the October 5, 2009 work injury would be 

terminated. 

On June 26, 2012 appellant alleged that she sustained a left knee injury at work on 

June 20, 2012 when she stepped down off a curb. She indicated that she felt a tug and twist in 

her knee and heard a popping sound.5

In an August 9, 2012 decision, OWCP denied appellant’s claim on the grounds that she 

did not submit sufficient medical evidence to establish that she sustained a left knee injury in the 

performance of duty on June 20, 2012. 

On October 22, 2012 Dr. Allen Glushakow, an attending Board-certified orthopedic 

surgeon, performed left knee surgery, including abrasion arthroplasty, chondroplasty, 

arthrotomy, and partial lateral meniscectomy. He noted that during the surgery he observed an 

effusion and osteochondral fracture of the medial femoral condyle and an acute tear of the lateral 

meniscus. The surgery was not authorized by OWCP. 

 4

 Appellant later began to receive compensation on the periodic rolls. 

5

 This claim was initially developed under file number xxxxxx402, but beginning in early 2013 the documents for 

this claim were administratively associated with file number xxxxxx003, the file created for appellant’s October 5, 

2009 injury. 
3

In a decision dated February 20, 2013, an OWCP hearing representative modified 

OWCP’s August 9, 2012 decision to accept the condition of left knee sprain as occurring on 

June 20, 2012 “with entitlement to medical benefits being limited to the claimant’s emergency 

room visit on June 20, 2012.” He stated, “The district office denial of the claim for any other left 

knee condition and for benefits subsequent to June 20, 2012 is affirmed.” 

In an April 30, 2013 decision, OWCP advised appellant that her claim for a traumatic 

injury on June 20, 2012 had been formally accepted for a left knee sprain. It noted that, per its 

February 20, 2013 decision, authorization for medical treatment was limited to treatment at the 

emergency room on June 20, 2012. OWCP stated, “If the current accepted condition(s) need to 

be revised or additional complications related to the current accepted condition(s) need to be 

added, your physician should explain in writing, with medical rationale, the relationship between 

any additional condition and the work injury or the current accepted condition(s) noted above.” 

In an informational letter dated June 10, 2013, OWCP advised appellant that her claim 

for compensation for the period October 22, 2012 to March 18, 2013 was not payable. It 

informed appellant that, in its November 17, 2010 decision, it had terminated her wage-loss 

compensation effective June 17, 2010. 

In a July 17, 2013 letter received on that date, counsel, on behalf of appellant, sought 

compensation for appellant’s October 22, 2012 left knee surgery and any periods of disability 

related to her accepted work-related knee condition. He stated, “[Appellant] underwent surgery 

by Dr. Glushakow under the above file in October 2012. Clearly, this is new evidence and was 

not available on June 17, 2010. She is now disabled as a result of the effects of the surgery.”6

In a November 14, 2013 decision, OWCP denied appellant’s case finding that she filed an 

untimely reconsideration request which failed to demonstrate clear evidence of error in a prior 

OWCP decision. It indicated that the June 10, 2013 “decision” for which appellant was 

considered to have requested reconsideration was an informational letter rather than a final 

decision of OWCP and therefore appellant could not request reconsideration of this decision. 

OWCP found that appellant’s July 17, 2013 reconsideration request was not timely filed with 

respect to the November 17, 2010 decision (which modified the June 17, 2010 decision) and that 

her application for review did not show clear evidence of error in that decision. It stated, “Your 

attorney does not argue that the decision dated November 17, 2010 was incorrect when it was 

issued.” 

On January 30, 2014 appellant filed a claim for disability due to her work-related left 

knee condition, alleging that she was unable to work for periods beginning June 20, 2012. 

In an informational letter dated February 26, 2014, OWCP advised appellant that it only 

accepted that she sustained a left knee sprain on June 20, 2012 and that her case was only open 

for payment of medical bills related to an emergency room visit on June 20, 2012. It indicated 

that appellant had previously been provided with appeal rights in connection with prior decisions 

on this matter. 

 6

 Counsel also stated he wished to “appeal” June 17, 2010 and June 10, 2013 “decisions” of OWCP. As noted 

above, the June 10, 2013 document was an informational letter rather than a final decision of OWCP. 
4

In a March 5, 2014 letter received on the same date, counsel, on behalf of appellant, 

indicated that he was submitting evidence which he felt supported coverage of appellant’s 

October 22, 2012 surgery. In the attached June 25, 2013 report, Dr. Glushakow explained why 

he felt that appellant’s need for repeat left knee surgery on October 22, 2012 was due to her 

June 20, 2012 injury rather than an earlier injury. He stated: 

“While the [October 22, 2012] operative report did not show a tear of the medial 

meniscus, there was an effusion and osteochondral fracture of the medial femoral 

condyle as well as an acute tear of the lateral meniscus. In addition, a marked 

synovitis was noted requiring a subtotal synovectomy, all of which is described in 

the operative report. [Appellant] had made a full recovery from the surgery 

performed on January 12, 2010. Prior operative report[s] did not note an 

osteochondral fracture and did not note synovitis. Therefore, the combination of 

these findings point to the cause of her surgery being the incident of 

June 20, 2012.”7

In a March 19, 2014 decision, OWCP refused to reopen appellant’s case for further 

review of the merits of her claim on the grounds that her request was untimely filed and failed to 

demonstrate clear evidence of error. It found that the March 5, 2014 letter submitted by counsel 

on behalf of appellant was an untimely reconsideration request and did not show clear evidence 

of error in OWCP’s prior decisions, including its decision dated April 30, 2013. 

LEGAL PRECEDENT 

 To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8

OWCP’s regulations provide that the evidence or argument submitted by 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) constitute relevant and 

pertinent new evidence not previously considered by OWCP.9

 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.10 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.11 

 OWCP, however, may not deny an application for review solely on the grounds that the 

application was not timely filed. When an application for review is not timely filed, it must 

 7

 Counsel also stated that he wished to “appeal” the April 30, 2013 decision of OWCP and that he wished to 

‘request reconsideration.” 

 8

 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

 9

 20 C.F.R. § 10.606(b)(2). 

 10 Id. at § 10.607(a). 

 11 Id. at § 10.608(b). 
5

nevertheless undertake a limited review to determine whether the application establishes “clear 

evidence of error.”12 OWCP regulations and procedure provide that OWCP will reopen a 

claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 

C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on 

the part of OWCP.13 

In order to be entitled to reimbursement of medical expenses, it must be shown that the 

expenditures were incurred for treatment of the effects of an employment-related injury or 

condition.14 An employee seeking compensation for disability and/or a specific condition under 

FECA has the burden of establishing the essential elements of his or her claim including the fact 

that the individual is an “employee of the United States” within the meaning of FECA, that the 

claim was timely filed within the applicable time limitation period of FECA, that an injury was 

sustained in the performance of duty as alleged, and that any disability and/or specific condition 

for which compensation is claimed are causally related to the employment injury.15 It is well 

established that proceedings under FECA are not adversarial in nature, and while the claimant 

has the burden to establish entitlement to compensation, OWCP shares responsibility in the 

development of the evidence.16

ANALYSIS 

 OWCP accepted that on October 5, 2009 appellant sustained a medial meniscus tear of 

her left knee due to a fall down stairs at work. On January 12, 2010 appellant underwent 

OWCP-authorized left knee arthroscopy with lateral meniscectomy and excision of plica. In a 

June 17, 2010 decision, OWCP terminated her wage-loss compensation and medical benefits 

effective June 17, 2010 on the grounds that she ceased to have residuals of her October 5, 2009 

work injury after that date. By decision dated November 17, 2010, it modified its June 17, 2010 

termination decision to reflect that only appellant’s wage-loss compensation was terminated 

effective June 17, 2010. OWCP indicated that the proposed notice of termination sent to 

appellant failed to mention that her medical benefits related to the October 5, 2009 work injury 

would be terminated. 

 Appellant’s claim for her October 5, 2009 injury was dormant until October 2012 after 

she underwent left knee surgery. On October 22, 2012 Dr. Glushakow, an attending Boardcertified orthopedic surgeon, performed left abrasion arthroplasty, chondroplasty, arthrotomy, 

and partial lateral meniscectomy. The surgery was not authorized by OWCP. In a July 17, 2013 

letter received on that date, counsel, on behalf of appellant, sought compensation for appellant’s 

 

 12 See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

 13 Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a 

(October 2011). OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake.” 

14 Bertha L. Arnold, 38 ECAB 282, 284 (1986). 

 15 J.F., Docket No. 09-1061 (issued November 17, 2009). 

16 Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983). 
6

October 22, 2012 left knee surgery and any period of disability related to her accepted workrelated left knee condition. 

 Under a separate case file (now combined with the file for the October 5, 2009 injury), 

appellant alleged in late June 2012 that she sustained a left knee injury at work on June 20, 2012 

due to stepping down off a curb. After initially being denied, her claim for a June 20, 2012 work 

injury was accepted for left knee sprain in OWCP decisions dated February 20 and 

April 30, 2013.17 In a March 5, 2014 letter, counsel, on behalf of appellant, indicated that he was 

submitting evidence which he felt supported coverage of appellant’s October 22, 2012 surgery.18

 The Board finds that OWCP improperly found that counsel’s communications on behalf 

of appellant constituted a request for reconsideration of its November 17, 2010 decision which 

modified its June 17, 2010 termination decision to reflect that only appellant’s wage-loss 

compensation was terminated effective June 17, 2010. It is clear, however, that in a July 17, 

2013 letter, counsel expressly sought compensation for appellant’s October 22, 2012 left knee 

surgery and any periods of disability related to her accepted work-related knee condition. In a 

March 5, 2014 letter, he indicated that he was submitting evidence which he felt supported 

coverage of appellant’s October 22, 2012 surgery. Medical evidence was submitted in support of 

this claim, including a June 25, 2013 report in which Dr. Glushakow stated that the October 22, 

2012 surgery was necessitated by a work-related injury. Moreover, appellant filed a claim for 

disability due to her work-related left knee condition, alleging that she was unable to work for 

periods beginning June 20, 2012.19 Consequently, OWCP improperly analyzed appellant’s case 

and wrongly determined, in November 14, 2013 and March 19, 2014 decisions, that she filed an 

untimely request for merit review and failed to show clear evidence of error in its November 17, 

2010 decision.20

 The Board finds that appellant has an outstanding claim related to her October 22, 2012 

left knee surgery and any periods of disability arising after June 20, 2012. The case shall be 

remanded to OWCP for consideration of this claim. OWCP should consider all the relevant 

documents relating to both appellant’s accepted October 5, 2009 left knee injury and her 

accepted June 20, 2012 left knee injury.21 After carrying out this development, OWCP shall 

issue an appropriate decision on the matter. 

 17 However, OWCP found in these decisions, with respect to the June 20, 2012 injury, appellant’s authorization 

for medical treatment was limited to treatment at the emergency room on June 20, 2012. 

18 On January 30, 2014 appellant filed a claim for disability due to her work-related left knee condition, alleging 

that she was unable to work for periods beginning June 20, 2012. 

19 Although counsel used the words “appeal” and “reconsideration” in some of his letters, the content and context 

of the letters show that he actually sought payment for appellant’s October 22, 2012 left knee surgery and any 

periods of disability arising after June 20, 2012. 

 20 See supra notes 7 through 12. 

21 Beginning in early 2013, these cases were administratively associated with the same file number (xxxxxx003). 
7

CONCLUSION 

 The Board finds that the case shall be remanded to OWCP for consideration of her 

outstanding claim for payment related to her October 22, 2012 left knee surgery and any periods 

of disability arising after June 20, 2012. 

ORDER 

 IT IS HEREBY ORDERED THAT the March 19, 2014 and November 14, 2013 

decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded 

to OWCP for proceedings consistent with this decision of the Board.22

Issued: February 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 22 Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective December 27, 2014.