United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, ME, Employer 

__________________________________________ 

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Docket No. 14-79 

Issued: May 8, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 10, 2013 appellant filed a timely appeal from a July 1, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 

days elapsed since the most recent merit decision dated March 19, 2013 and the filing of this 

appeal on October 10, 2013, the Board lacks jurisdiction to review the merits of the claim 

pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3.2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193. 

2

 With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider 

new evidence on appeal; see 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

On December 18, 2012 appellant, a 47-year-old letter carrier, filed a claim alleging that 

he slipped and fell on the grass while delivering mail and injured his left ankle. He stopped work 

on December 18, 2012. 

In reports dated December 18 and 19, 2012, a nurse practitioner noted that appellant 

presented with left lateral ankle pain and swelling after slipping and falling on his left leg and 

ankle while delivering mail on December 18, 2012. She diagnosed hypertension, knee and ankle 

sprain. In duty status reports dated December 19 and 27, 2012, the nurse practitioner diagnosed 

left ankle sprain and noted that appellant would be disabled for one week. In reports dated 

December 27, 2012 and January 3, 2013, she noted that appellant reported falling on 

December 18, 2012 while delivering mail. The nurse practitioner diagnosed ankle sprain and 

advised that appellant would be off work another week and then be returned to light duty. 

By letter dated January 14, 2013, OWCP advised appellant that his claim was originally 

received as a simple, uncontroverted case which resulted in minimal or no time lost from work. 

It indicated that his claim was administratively handled to allow medical payments up to 

$1,500.00 but the merits of the claim had not been formally adjudicated. OWCP advised that, 

because he had not returned to full duty, appellant’s claim would be formally adjudicated. It 

requested that he submit additional information including a comprehensive medical report from 

his treating physician with a reasoned explanation as to how the specific work factors contributed 

to his claimed left ankle and knee injury. OWCP advised that a nurse practitioner was not 

considered to be a physician under FECA. 

Appellant submitted reports from a nurse practitioner dated January 10 and 17, 2013. 

The nurse practitioner noted that appellant presented with a swollen posteriolateral aspect of the 

ankle and antalgic gait. She diagnosed ankle sprain and returned appellant to work two hours a 

day with limited standing and sitting. In reports dated January 24 to February 13, 2013, the 

nurse practitioner treated appellant in follow up for severe ankle sprain and persistent swelling. 

She diagnosed ankle sprain and released appellant to full-time work with restrictions. 

In a decision March 19, 2013, OWCP denied appellant’s claim on the grounds that the 

medical evidence did not demonstrate that the claimed medical condition was related to the 

established work-related events. 

In a March 31, 2013 appeal request form, appellant requested reconsideration. No 

additional medical evidence was submitted. 

In a July 1, 2013 decision, OWCP denied appellant’s request for reconsideration on the 

grounds that the evidence submitted was insufficient to warrant a merit review. 
3

LEGAL PRECEDENT 

Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”4

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.5

ANALYSIS 

OWCP’s most recent merit decision dated March 19, 2013 denied appellant’s claim 

without a merit review and appellant appealed this decision to the Board. 

As noted, the Board does not have jurisdiction over the March 19, 2013 OWCP decision. 

The issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R. 

§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his 

request for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. He did not identify a specific point of law or show that it was 

erroneously applied or interpreted. Appellant did not advance a new and relevant legal 

argument. The Board notes that the underlying issue in this case is whether appellant sustained a 

work-related ankle and knee injury. That is a medical issue which must be addressed by relevant 

medical evidence.6

 However, appellant submitted no new and relevant medical evidence in 

support of his claim. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(2) requiring OWCP to reopen the case for review of the merits of the 

claim. Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, advance a relevant legal argument not previously considered by OWCP, or constitute 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(2). 

5 Id. at § 10.608(b). 

6 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
4

relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration. 

ORDER 

IT IS HEREBY ORDERED THAT the July 1, 2013 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: May 8, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board