United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

O.M., Appellant 

and 

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

St. Paul, MN, Employer 

__________________________________________ 

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Docket No. 16-0747 

Issued: July 7, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 7, 2016 appellant filed a timely appeal from a February 9, 2016 nonmerit 

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

has elapsed from the last merit decision, dated March 20, 2015, and 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 to review the merits of the claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

of her claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 29, 2015 appellant, then a 65-year-old custodian, filed a traumatic injury 

claim (Form CA-1) alleging that on December 31, 2014 she sustained a right knee and lower 

extremity injury while walking and sweeping steps. She stopped work on January 13, 2015. 

In a February 4, 2015 letter, the employing establishment controverted the claim, 

asserting that appellant did not report the injury or file a claim until January 29, 2015, nearly a 

month after the date of the injury. Also, appellant continued working full duty until 

January 13, 2015 and the employing establishment could not determine the date appellant first 

received medical treatment. 

In an undated attending physician’s report (Form CA-20) date stamped as received by the 

employing establishment on January 27, 2015, Dr. Gary S. Lewis, an attending Board-certified 

family practitioner, diagnosed internal derangement of the right knee with a lateral meniscal tear. 

He opined that appellant sustained the injury at work on December 30, 2014 when she “twisted 

knee by going down stairs at work.” 

Appellant provided a “USPS/Alignetworks” referral form to Dr. Lewis. The form notes a 

December 30, 2014 knee injury. The employing establishment date stamped the form as 

received on January 30, 2015. 

In a February 13, 2015 letter, OWCP advised appellant to submit factual evidence 

corroborating the claimed incident, and medical evidence diagnosing a right foot injury caused 

by that incident. It afforded her 30 days to submit such evidence. 

Appellant provided February 19, 2015 work restrictions from Dr. Lewis, and a physical 

therapy prescription. In a February 24, 2015 note, Dr. Lewis cleared appellant to return to 

restricted duty on February 27, 2015. 

By decision dated March 20, 2015, OWCP denied the claim as fact of injury had not been 

established. It found that the factual record did not support that the December 31, 2014 incident 

occurred at the time, place, and in the manner alleged. OWCP mailed the decision to appellant at 

her address of record. 

In a letter dated December 21, 2015, postmarked December 28, 2015, and received on 

January 5, 2016 appellant requested reconsideration. She contended that she had not received 

the March 20, 2015 decision. Appellant submitted a January 16, 2015 employing establishment 

letter authorizing emergency medical treatment by Dr. Lewis. The employing establishment 

noted that, due to the exigency of the visit, it had not yet completed a Form CA-16 authorization 

for medical treatment. Appellant also provided a January 17, 2015 employing establishment 

accident report, and physical therapy notes dated from February 13 to May 14, 2015. 

By decision dated February 9, 2016, OWCP denied reconsideration, finding that 

appellant’s letter and accompanying documents did not constitute new, relevant evidence. It 

found that the physical therapy notes were irrelevant to the fact of injury issue. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides 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.3 Section 10.608(b) 

provides that when an application for review of the merits of a claim does not meet at least one 

of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the 

application for reconsideration without reopening the case for a review on the merits.4

 

In support of a request for reconsideration, a claimant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.5

 He or she need only 

submit relevant, pertinent evidence not previously considered by OWCP.6 When reviewing an 

OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.7 

ANALYSIS 

Appellant claimed that she sustained a right knee injury in the performance of duty on 

December 31, 2014. OWCP denied the claim by decision dated March 20, 2015, finding that 

fact of injury had not been established. Appellant requested reconsideration by letter dated 

December 21, 2015, postmarked December 28, 2015, and received January 5, 2016. She 

provided a January 16, 2015 employing establishment authorization for emergency medical 

treatment by Dr. Lewis, an attending Board-certified family practitioner, and a January 17, 2015 

employing establishment incident report. Appellant also submitted a series of physical therapy 

notes. OWCP denied reconsideration by decision dated February 9, 2016, finding that the letter 

and accompanying documents did not constitute new, relevant evidence, and the physical therapy 

notes were irrelevant to the fact of injury issue. 

The Board finds, however, that OWCP improperly denied reconsideration, as the 

January 17, 2016 employing establishment accident report constituted new evidence directly 

relevant to the fact of injury issue. The employing establishment controverted the claim, 

contending that appellant did not report an injury until January 29, 2015, and that it could not 

determine when appellant first received medical treatment. The case will be remanded to OWCP 

for reconsideration of the merits of the claim, including all evidence appellant submitted 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

5 Helen E. Tschantz, 39 ECAB 1382 (1988). 

6 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

7 Annette Louise, 54 ECAB 783 (2003). 
4

accompanying her request for reconsideration. Following this and any other development 

deemed necessary, OWCP shall issue an appropriate merit decision. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for further merit 

review of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case remanded to OWCP for additional 

development consistent with this decision and order. 

Issued: July 7, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board