United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer 

__________________________________________ 

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Docket No. 16-1341 

Issued: December 20, 2016 

Appearances: Case Submitted on the Record

Richard Heavey, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 14, 2016 appellant, through counsel, filed a timely appeal from a January 27, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated January 21, 2015 to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether OWCP properly denied appellant’s January 4, 2016 request for 

reconsideration pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On February 10, 2014 appellant, then a 55-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 29, 2014 she sustained a heart attack at work. She 

stopped work on January 30, 2014. 

A police investigation report dated January 29, 2014 indicated that appellant had 

collapsed on the edge of the street while delivering mail on her route. Witnesses related that 

appellant was not hit by a car, rather she just collapsed. The police report noted that appellant 

was transported via emergency medical services (EMS) to the hospital and it appeared that 

appellant had a heart attack. 

By letter dated February 28, 2014, OWCP advised appellant that the evidence submitted 

was insufficient to establish her claim and requested that she submit additional evidence to 

demonstrate that the employment incident occurred as alleged and that she sustained a diagnosed 

condition as a result of the incident. Appellant was afforded 30 days to submit the additional 

evidence. 

Appellant was initially examined in the emergency room by Dr. Cathy Jeon, a Boardcertified internist specializing in cardiovascular disease, who noted that appellant was 

transported to the hospital after sustaining a ventricular fibrillation (VF) arrest while working as 

a postal carrier for the employing establishment. She reported that electrocardiogram (EKG) 

testing demonstrated ST elevations and T-wave inversions in inferior leads. A cardiac 

catheterization lab was performed and revealed that appellant had total occluded right coronary 

artery and a bare-metal stent was placed. Dr. Jeon reviewed appellant’s history and provided 

findings on examination. She related that appellant would be admitted for further medical 

management. 

In a February 8, 2014 hospital discharge report, Dr. Maurizio Diaco, a Board-certified 

internist specializing in cardiovascular disease, noted discharge diagnoses of ventricular 

fibrillation arrest in the setting of an inferior myocardial infarction with right ventricular 

component, single-vessel coronary artery disease, dyslipidemia, mild anoxic encephalopathy, 

and pneumonia. He described the medical treatment appellant received at the hospital and her 

laboratory data. Dr. Diaco listed appellant’s medication at discharge and noted that appellant 

was advised to follow-up with her primary care physician. 

OWCP denied appellant’s traumatic injury claim in a decision dated April 2, 2014. It 

found that the evidence submitted was insufficient to establish that the January 29, 2014 incident 

occurred as alleged and that she sustained a diagnosed medical condition causally related to the 

alleged incident. 
3

On May 13, 2015 OWCP received appellant’s reconsideration request. She resubmitted 

her original Form CA-1 and hospital records. Appellant also provided a duty status report Form 

CA-17 and an attending physician’s report Form CA-20 dated April 28, 2014 by Dr. Diaco, who 

related that on January 29, 2014 appellant worked as a city letter carrier and sustained an acute 

myocardial infarction. Dr. Diaco advised appellant to return to work in July 2014 with 

restrictions. 

In a June 10, 2014 work status note, Dr. Harris Ghaus, a Board-certified internist, 

indicated that appellant could return to work on June 30, 2014 with restrictions of no lifting 

above 30 pounds and no work for more than 8 hours per day. 

By decision dated July 10, 2014, OWCP affirmed the April 2, 2014 decision with 

modification. It accepted that the January 29, 2014 incident occurred as alleged and that she was 

diagnosed with a myocardial infarction, but denied appellant’s claim finding that the medical 

evidence submitted did not establish that her diagnosed condition resulted from the accepted 

incident. 

On November 20, 2014 appellant again request reconsideration. Appellant indicated that 

she had a written statement from Dr. Diaco that demonstrated that her injury was a direct result 

of her work. 

In an October 28, 2014 narrative report, Dr. Diaco related that appellant had a recent 

myocardial infarction in January. He opined that the event that happened on January 29, 2014 

was related to a plaque rupture. Dr. Diaco explained that although there may have been some 

preexisting plaque prior to the work event, working during cold weather and according to 

appellant’s strenuous work on that specific day, did cause the plaque rupture. He reported that 

this was a well-reported and documented phenomenon that the plaque in the coronary artery may 

persist for years, but there is always a trigger that brings on the event. Dr. Diaco concluded that 

appellant’s work activity in cold weather was the cause of her myocardial infarction and more 

precisely was the trigger of a plaque rupture which caused the heart attack and the cardiac arrest. 

In a decision dated January 21, 2015, OWCP denied modification of the July 10, 2014 

decision. It found that the new medical report dated October 28, 2014 by Dr. Diaco provided 

only speculative support for causal relationship and did not constitute rationalized medical 

opinion evidence sufficient to establish causal relationship. 

On January 4, 2016 appellant, through counsel, again requested reconsideration. Counsel 

noted that he was providing a report by Dr. Ghaus who opined that appellant’s high blood 

pressure had been under control since 2007 and could hardly have been a cause of her heart 

attack. He also alleged that Dr. Diaco previously provided an opinion in his October 28, 2014 

report that the cold weather and strenuous activity of appellant’s job caused her heart attack on 

January 29, 2014. Counsel asserted that appellant did not have a long-standing history of 

smoking or a history of heart problems in her family. He argued that the evidence of record 

provided ample evidence that appellant’s preexisting condition became “disabling because of 

aggravation causally related to employment.” 
4

Appellant provided a print-out which demonstrated that the temperature on January 29, 

2014 was a high of 24 degrees and low of 12 degrees. She also provided emergency room 

records dated September 17, 2015 which indicated that she was treated that day for a twisted left 

ankle by Dr. Brian Lawner, a Board-certified diagnostic radiologist, who noted a history of 

myocardial infarction and conducted an examination. Dr. Lawner reported full range of motion 

and tenderness over the left lateral malleolus. He diagnosed left ankle sprain and recommended 

that appellant be excused from work for one week. 

In a December 14, 2015 letter, Dr. Ghaus noted that appellant had been his patient since 

2007 and was on medication for hypertension. He related that her blood pressure had been wellcontrolled since 2007. 

In a January 15, 2016 letter, Dr. Diaco indicated that he was clarifying his statement 

regarding the connection between appellant’s myocardial infarction on January 29, 2014 and the 

physical activity in cold weather. He related that the connection between physical exertion in 

cold weather to a myocardial infarction is not mere speculation, but is based on an extensive 

body of medical research on cardiac event triggers. Dr. Diaco reported that based on his 

evaluation of appellant, he felt comfortable in stating that the “sustained physical activity in very 

cold weather was more likely than not the trigger of [appellant’s] myocardial infarction on 

January 29, 2014.” He also included a partial statement from a medical note dated January 29, 

2014 describing that appellant worked as a postal carrier and was on duty delivering mail when 

she had a witnessed fall and collapsed. Appellant also resubmitted Dr. Diaco’s October 28, 2014 

medical report. 

By decision dated January 27, 2016, OWCP denied appellant’s request for 

reconsideration, finding that she failed to submit any evidence sufficient to warrant further merit 

review under 5 U.S.C. § 8128(a). It found that Dr. Diaco’s October 28, 2014 report was 

previously considered by OWCP and that Dr. Ghaus’ December 14, 2015 report was irrelevant 

and failed to address the particular issue of causal relationship. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application.3

 

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.4

 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 
5

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.6 If the request is timely, but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.7

ANALYSIS 

OWCP denied appellant’s request for reconsideration finding that no new medical 

evidence was received that warranted further merit review. The Board notes, however, that 

appellant submitted a medical report dated January 15, 2015 by Dr. Diaco. This report was 

received by OWCP on January 26, 2016. Although appellant submitted this new medical 

evidence in support of her reconsideration request, the Board finds that OWCP did not review 

this new evidence from Dr. Diaco. In E.R.,8 the Board remanded the case on the issue of 

OWCP’s denial of the claimant’s reconsideration request in order to determine whether medical 

evidence that was received three days before OWCP issued its decision denying further merit 

review and not reviewed by OWCP was sufficient to require further merit review of appellant’s 

claim. Likewise, in this case, OWCP failed to address Dr. Diaco’s January 15, 2015 medical 

report, which was received by OWCP one day before it issued its final January 27, 2016 

decision. Because the Board’s jurisdiction of a case is limited to reviewing the evidence that was 

before OWCP at the time of its final decision, it is critical that OWCP review all evidence 

relevant to that subject matter and received by OWCP prior to the issuance of its final decision.9

The Board finds that this case is not in posture for decision. The Board will set aside the 

January 27, 2016 decision denying appellant’s reconsideration request and remand the case to 

OWCP for consideration of the evidence in order to determine whether this evidence required 

further merit review of appellant’s claim. 

CONCLUSION 

The Board finds that the claim is not in posture for decision regarding whether OWCP 

properly denied appellant’s reconsideration request. 

 5

 20 C.F.R. § 10.607(a). 

6 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

7 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 

8

 Docket No. 15-1655 (issued December 18, 2015). 

9 See E.Z., Docket No. 14-274 (issued March 16, 2015); Linda Johnson, 45 ECAB 439 (1994); William A. Couch, 

41 ECAB 548 (1990). 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 27, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further action consistent with 

this decision of the Board. 

Issued: December 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board