United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 13-2008 

Issued: March 6, 2014 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 3, 2013 appellant, through counsel, filed a timely appeal of a July 30, 2013 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his application for 

reconsideration without merit review of the claim.1

 Pursuant to the Federal Employees’ 

Compensation Act2

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

the December 18, 2009 nonmerit decision. Since more than 180 days has elapsed between the 

last merit decision on September 15, 2009 and the filing of this appeal, the Board lacks 

jurisdiction to review the merits of the claim pursuant to 20 C.F.R. § 501.3(e). 

 1

 The appeal letter was dated August 22, 2013. On August 29, 2013 OWCP issued a schedule award decision. 

The schedule award decision is not before the Board on this appeal. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s May 14, 2013 

application for reconsideration was insufficient to warrant merit review of the claim pursuant to 

5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

The case has been before the Board on two prior appeals. In a decision dated June 28, 

2010, the Board affirmed OWCP’s November 6, 2008 decision terminating appellant’s 

compensation and medical benefits effective that date and a June 18, 2009 decision denying 

merit review.3

 The Board found that the weight of the medical evidence, which was represented 

by the report of a referee physician, established that appellant had no further disability or 

residuals due to his accepted left foot injury. In a decision dated August 1, 2012, the Board 

affirmed a December 7, 2011 OWCP merit decision with respect to the termination of 

compensation.4 The Board found that OWCP properly terminated appellant’s compensation for 

wage-loss and medical benefits effective November 6, 2008 and appellant did not establish a 

continuing disability or residuals of an employment-related condition. The facts and the law 

contained in those decisions are incorporated herein by reference. 

By letter dated May 14, 2013, appellant, through his representative, requested 

reconsideration. The representative stated that appellant had requested a schedule award in 2010 

and OWCP had not issued a decision. Appellant submitted a May 31, 2013 report from 

Dr. Carol De Costa, a Board-certified physiatrist, who provided a history and results on 

examination. In discussing an impairment to the left leg, Dr. De Costa opined that appellant’s 

“knee strain is a consequential injury caused by the left lower extremity neurologic as well as 

tendinous damage due to his on-the-job injury.”5 She opined that appellant had a 70 percent 

lower extremity impairment. 

By decision dated July 30, 2013, OWCP found that the application for reconsideration 

was insufficient to warrant merit review of the claim. It found that the evidence regarding a 

schedule award was irrelevant to the issue presented. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6

OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

 3

 Docket No. 09-1911 (issued June 28, 2010). 

4

 Docket No. 12-444 (issued August 1, 2012). 

5

 The accepted conditions are left foot contusion, left ankle strain, left tarsal tunnel syndrome and lesion of the 

left plantar nerve. 

6

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application”). 
3

evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or 

(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”7

 Section 

10.608(b) of the Code of Federal Regulations state that any application for review that does not 

meet at least one of the requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP 

without review of the merits of the claim.8

ANALYSIS 

In the present case, appellant submitted an application for reconsideration dated 

May 14, 2013. Appellant did not attempt to show that OWCP erroneously applied or interpreted 

a specific point of law, or advance a new and relevant legal argument. He submitted a new 

medical report9 from Dr. De Costa and stated that this was relevant evidence to the issue 

presented. 

The underlying merit issue in the case was the termination of compensation November 6, 

2008, and a continuing employment-related condition or disability. Although OWCP stated that 

medical evidence regarding permanent impairment was irrelevant, Dr. De Costa did provide new 

and relevant evidence with respect to a continuing employment-related condition. In her 

May 31, 2012 report, Dr. De Costa opined, for the first time, that appellant had sustained a left 

knee sprain as a consequence of the employment injuries. Dr. De Costa noted in her medical 

history that she had treated appellant on July 2, 2009, and she had noted pain in the left knee due 

to direct trauma on the job. There is no indication in the record of a prior medical report 

discussing a consequential left knee strain. Since one of the merit issues was whether appellant 

continued to have an employment-related condition after November 6, 2008, this is new and 

relevant evidence to the issue presented. It is not necessary that appellant establish the claim, but 

only that he submit “relevant and pertinent evidence not previously considered by OWCP.” 

The Board finds that appellant submitted evidence sufficient to require a merit review. 

Pursuant to 20 C.F.R. § 10.606(b)(2), the case must be remanded to OWCP for a proper merit 

decision on the issues presented. 

CONCLUSION 

The Board finds that appellant’s application for reconsideration was sufficient to require 

a merit decision by OWCP. 

 7

 20 C.F.R. § 10.606(b)(2). 

8 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

9

 The May 31, 2012 report was initially submitted on July 19, 2012, and resubmitted on May 21, 2013. On the 

prior appeal, the Board reviewed only evidence that was before OWCP at the time of the December 7, 2011 OWCP 

decision. Evidence submitted after that date has not been reviewed in a merit decision. 
4

ORDER 

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

Compensation Programs dated July 30, 2013 is set aside and the case remanded for further action 

consistent with this decision of the Board. 

Issued: March 6, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board