United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 15-1198 

Issued: October 22, 2015 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 5, 2015 appellant, through counsel, filed a timely appeal from the December 1, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The last 

merit decision in this case was issued by OWCP on May 29, 2013. As more than 180 days 

elapsed from the last OWCP merit decision by OWCP 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 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). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on June 3, 2010 appellant, then a 34-year-old clerk, sustained a 

right knee contusion when she attempted to move a tray that was stuck on the tray line. 

Appellant stopped work that day and OWCP paid compensation benefits. OWCP terminated her 

compensation benefits by decision dated March 28, 2012. Appellant’s counsel requested 

reconsideration and submitted a March 20, 2013 brief, as well as a November 11, 2012 report 

from Dr. Neofitos Stefanides, an orthopedic surgeon. By decision dated May 29, 2013, OWCP 

denied modification of the March 28, 2012 termination decision and found that appellant had not 

established disability after March 28, 2012, causally related to the June 3, 2010 employment 

injury. 

This case has previously been before the Board. By decision dated April 9, 2014, the 

Board affirmed OWCP’s May 29, 2013 decision.2 Therein, the Board reviewed the arguments 

appellant’s counsel presented in his March 20, 2013 brief. In the March 20, 2013 brief, counsel 

argued that the report of Dr. Stefanides dated November 11, 2012 established that appellant had 

residuals of the accepted injury and that OWCP had failed to accept all of the conditions 

appellant sustained as a result of the work injury. The Board found that OWCP properly relied 

on the February 7, 2012 opinion of Dr. Norman Sveilich, a Board-certified orthopedic surgeon 

selected as the impartial medical specialist, who determined that appellant had no work-related 

residuals or disability for full-time employment due to her accepted right knee contusion. The 

Board further found that none of the medical reports submitted by appellant after the termination 

of benefits included a rationalized opinion regarding the causal relationship between her current 

condition and her accepted work-related injury.3

 

On November 18, 2014 OWCP received appellant’s counsel’s November 18, 2014 

request for reconsideration. This request for reconsideration presented arguments which were 

identical to the arguments raised by counsel in his March 20, 2013 brief. Counsel argued that 

reconsideration was requested because medical and legal arguments were not previously 

considered or not properly considered by OWCP. Issues presented were: (1) whether OWCP 

accepted all conditions sustained by appellant as a result of the June 3, 2010 employment 

incident; and (2) whether OWCP properly terminated benefits. With regard to the first issue, 

counsel contended that the medical evidence of record demonstrated that because of the workrelated incident of June 3, 2010, appellant sustained injuries and conditions in addition to those 

accepted by OWCP including consequential left knee injuries and conditions in the 

November 11, 2012 report of Dr. Stefanides, an orthopedic surgeon, previously of record, was 

submitted in support of this assertion. With regard to the second issue, counsel relying upon 

Dr. Stefanides’ November 11, 2012 report, argued that OWCP improperly terminated 

compensation benefits as appellant continued to be disabled due to the June 3, 2010 

employment-related injury. He also argued that the opinions of OWCP’s second opinion 

physician, Dr. Leon Sultan, a Board-certified orthopedic surgeon, and Dr. Sveilich were based 

 2

 Docket No. 14-120 (issued April 9, 2014). 

3

 The Board indicated that, although the records contained evidence of a left knee condition and a back condition, 

appellant had not provided rationalized medical evidence explaining how the employment injury of June 3, 2010 

caused the diagnosed conditions. 
3

upon an inaccurate summary of the conditions appellant sustained causally related to the June 3, 

2010 employment injury. No additional evidence was submitted. 

By decision dated December 1, 2014, OWCP denied reconsideration without reviewing 

the merits of the case. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP 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.5

 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.6

 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.7

 

ANALYSIS 

On November 18, 2014 OWCP received appellant’s request for reconsideration. To be 

entitled to a merit review of OWCP’s decision denying or terminating a benefit, a claimant’s 

application for review must be received within one year of the date of that decision.8 As the 

Board’s April 9, 2014 decision was the last merit decision of record and the November 18, 2014 

request for reconsideration was within one-calendar year of that decision, appellant’s request was 

therefore timely. The question for determination is whether her request met at least one of the 

three standards for obtaining a merit review of her case.9 

In his November 18, 2014 request for reconsideration, appellant counsel did not establish 

that OWCP erroneously applied or interpreted a specific point of law. He did not advance a 

relevant legal argument not previously considered by OWCP and he did not submit relevant and 

pertinent new evidence not previously considered by OWCP. The Board therefore concludes 

that OWCP properly denied his request for merit review. 

 4

 Under section 8128 of FECA, the 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). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.607(a). 

7 Id. at § 10.608(b). 

8 Id. at § 10.607(a). 

9

 The Board has held, however, that OWCP’s procedures should be interpreted to mean that a right to 

reconsideration within one year accompanies any subsequent merit decision on the issues, including any merit 

decision by the Board. 
4

Counsel continues to assert that the issues are whether OWCP met its burden of proof to 

terminate compensation after March 28, 2012, and whether appellant has other medical 

conditions causally related to the June 3, 2010 employment injury, but these issues were 

previously decided. The Board settled this matter in its April 9, 2014 decision when it found that 

the weight of the medical evidence established that appellant no longer suffered from the 

accepted right knee contusion she sustained on June 3, 2010, and she had not established 

continuing employment-related disability. These matters have been adjudicated. Decisions and 

orders of the Board are final as to the subject matter appealed.10 

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

evidence or argument. Appellant did not do so in this case. Counsel merely reiterated arguments 

and evidence previously considered. Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied merit review. 

 10 20 C.F.R. § 501.6(a). 
5

CONCLUSION 

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

the merits of her claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the December 1, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board