United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jefferson, OH, Employer 

__________________________________________ 

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Docket No. 15-78 

Issued: February 27, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant, through counsel, filed a timely appeal from a 

September 17, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying her request for reconsideration. Because more than one year has elapsed 

between the last OWCP merit decision dated April 15, 2013 to the filing of this appeal, the 

Board lacks jurisdiction to review the merits of appellant’s case. Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction to review the September 17, 2014 nonmerit decision. 

ISSUE 

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

review of the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal appellant’s counsel contends that the decision is contrary to the fact and law. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board. On May 6, 2008 appellant, then a 55-

year-old rural carrier, filed an occupational disease claim alleging that on May 4, 2008 she first 

realized that her right knee and swollen feet were employment related. OWCP accepted the 

claim for right ankle and knee tendinitis and placed appellant on the periodic rolls for temporary 

total disability. 

By decision dated March 19, 2010, OWCP terminated appellant’s compensation benefits 

effective November 3, 2009. In a decision dated April 8, 2011, the Board found that OWCP 

failed to meet its burden of proof due to an unresolved conflict in the medical opinion evidence 

between Dr. William A. Seeds, appellant’s treating Board-certified orthopedic surgeon, and 

Dr. Michael J. Jurenovich, a second opinion Board-certified osteopathic orthopedic surgeon, 

with regard to whether appellant had any disability or continuing residuals of her accepted right 

ankle and knee tendinitis.2

 The Board reversed the November 3, 2009 decision terminating her 

compensation benefits and the March 19, 2010 hearing representative’s decision affirming the 

termination. By decision dated May 7, 2014, the Board affirmed an April 15, 2013 hearing 

representative’s decision affirming a September 13, 2012 decision terminating her compensation 

benefits.3 In affirming the termination of her compensation benefits, the Board found that 

OWCP properly relied upon the opinion of the impartial medical examiner, Dr. Manhal A. 

Ghanma, a Board-certified orthopedic surgeon, who negated a causal relationship between 

appellant’s continuing conditions and disability related to her employment. The facts and the 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. 

On July 16, 2014 counsel requested reconsideration and submitted a June 16, 2014 report 

from Dr. Seeds in support of the request. 

In the June 16, 2014 report, Dr. Seeds noted that on February 17, 2004 appellant 

sustained left shoulder and left humerus injuries as the result of a fall at work. He stated that the 

extent of her shoulder disruption was not revealed until arthroscopic surgery which was 

performed on February 24, 2004. In concluding, Dr. Seeds opined that appellant’s decreased 

shoulder strength and range of motion were due to the degenerative changes which he attributed 

to the shoulder injury sustained at work on February 17, 2004. He opined that she continued to 

suffer from residuals and disability from her accepted employment injury. 

By decision dated September 17, 2014, OWCP denied reconsideration. It found 

Dr. Seeds’ report considered another employment injury and made no mention of the accepted 

conditions under the current claim. Thus, OWCP found that the report failed to constitute new 

and relevant evidence which would warrant a merit review. 

 2

 Docket No.10-1327 (issued April 8, 2011). 

3

 Docket No. 13-2025 (issued May 7, 2014). 
3

LEGAL PRECEDENT 

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

OWCP’s 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) 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 also must file his or her application for review 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 

In the most recent merit decision dated May 7, 2014, the Board affirmed an April 15, 

2013 OWCP hearing representative’s decision terminating appellant’s compensation effective 

September 22, 2013 and that the weight of the medical evidence established that she had no 

further disability or residuals due to her accepted right ankle and knee tendinitis. On July 16, 

2015 appellant’s counsel requested reconsideration of the termination of her compensation. 

As noted, the Board does not have jurisdiction over a merit decision of OWCP. The issue 

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

§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In her 

July 16, 2014 request for reconsideration, appellant 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 not previously considered by OWCP. 

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

evidence, but appellant did not submit any pertinent new and relevant medical evidence in this 

case. Appellant submitted a June 16, 2014 report from Dr. Seeds, which addressed disability and 

continuing residuals due to shoulder conditions sustained as the result of an alleged February 17, 

2004 traumatic employment injury. However, this report does not require the reopening of 

appellant’s claim as it is not relevant to the underlying issue in the case, i.e., whether appellant 

continues to have disability and residuals as the result of her accepted right ankle and knee 

tendinitis sustained as a result of the March 4, 2008 occupational employment injury.8

 4

 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that 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

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

6 Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7 Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).

8 D.K., 59 ECAB 141 (2007); D’Wayne Avila, 57 ECAB 642 (2006). 
4

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 submit relevant 

and pertinent new evidence not previously considered. The Board accordingly finds that she did 

not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review. 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons stated above, the Board finds that the attorney’s arguments are not 

substantiated. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request to reopen her case for 

further review of the merits under section 8128(a). 

ORDER 

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

Compensation Programs dated September 17, 2014 is affirmed. 

Issued: February 27, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board