United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Woodbridge, VA, Employer 

__________________________________________ 

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Docket No. 16-1910 

Issued: May 3, 2017 

Appearances: Case Submitted on the Record

Jim Dowies, for the appellant1

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 September 29, 2016 appellant, through her representative, filed a timely appeal from a 

June 23, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

Because more than 180 days elapsed from the most recent merit decision dated December 22, 

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 to review the merits of 

this case.3

 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. 

3

 Appellant filed a timely request for oral argument. By order dated March 2, 2017, the Board exercised its 

discretion and denied her request on the grounds that her arguments could be adequately addressed in a decision 

based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 16-1910 (issued 

March 2, 2017). 
2

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). 

FACTUAL HISTORY 

On January 22, 2015 appellant then a 50-year-old clerk/mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that she injured her left knee when she slipped and fell at the 

employing establishment after returning from checking mail in a blue box. She stopped work on 

January 21, 2015. 

Appellant was treated by a physician assistant on January 21, 2015 who indicated that she 

could return to work on January 22, 2015 with restrictions on the left knee. 

In a January 28, 2015 letter, OWCP advised appellant to submit additional information 

including a comprehensive medical report from her treating physician which included a reasoned 

opinion addressing the relationship between her claimed condition and specific work factors. 

Appellant submitted a report from Dr. Daniel M. Hampton, a Board-certified orthopedist, 

dated January 30, 2015, who treated her for left knee pain after a slip and fall incident at work. 

He noted appellant’s history was significant for left knee arthroscopic surgery. Dr. Hampton 

diagnosed left knee pain and arthritis of the knee. He performed an inter-articular corticosteroid 

injection. In a certificate of disability, Dr. Hampton noted that appellant was disabled from work 

from January 30 to February 27, 2015. In a February 3, 2015 duty status report, he diagnosed 

knee contusion and indicated that appellant was totally disabled. 

In a March 12, 2015 decision, OWCP denied appellant’s claim, finding that the evidence 

of record was insufficient to establish that the incident occurred as alleged. 

On September 22, 2015 appellant requested reconsideration. She indicated that she 

slipped and fell when emptying the blue boxes at work because the janitors failed to put a mat in 

front of the door where employees enter and exit. Appellant asserted that she should be paid for 

her time off work and be authorized to attend physical therapy. 

With her request for reconsideration, appellant submitted a statement explaining that on 

January 21, 2015 she went outside to collect mail from the blue boxes and when she entered the 

building she slipped and fell. She reported being unable to get up due to pain in her knee and her 

coworker called an ambulance. Appellant was treated in the emergency room and was 

prescribed a knee brace, crutches and was taken out of work for three days. She reported being 

unable to stand or walk without her knee brace and crutches. Appellant indicated that her job 

required her to be on her feet all day, pushing and pulling heavy equipment and mail. After the 

injury, she was unable to perform her job due to her knee brace and crutches. Appellant noted 

that Dr. Hampton gave her a corticosteroid injection into her knee, a knee brace, and medication. 

She indicated that Dr. Hampton provided a certificate of disability from January 30 to 

February 27, 2015. 

In an order dated January 30, 2015, Dr. Hampton diagnosed left knee pain and arthritis of 

the knee and recommended physical therapy for four weeks. 
3

Appellant submitted a letter of removal from the employing establishment which noted 

that she was removed from her position because she was absent without leave and failed to 

maintain regular attendance. 

In a decision dated December 22, 2015, OWCP modified the March 12, 2015 decision 

finding that appellant submitted sufficient evidence to establish that the claimed incident 

occurred as alleged. However, it denied the claim because she had not submitted a rationalized 

medical opinion explaining how the diagnosed conditions were causally related to the 

January 21, 2015 work incident. 

On March 31, 2016 appellant requested reconsideration. In support of her request, she 

submitted four identical letters entitled notice of appeal dated October 13, December 31, 2015, 

March 21, 2016 and one undated letter addressed to the Board. In these letters appellant 

requested payment for her time off from work for eight weeks due to her fall and payment for her 

physical therapy for 12 weeks. She reiterated that on January 21, 2015 she went outside to 

collect mail from blue boxes and when she entered the building she slipped and fell. Appellant 

reported being unable to get up due to pain in her knee and her coworker called an ambulance. 

She was treated in the emergency room and prescribed a knee brace and crutches, and was taken 

out of work for three days. Appellant reported being unable to stand or walk without her knee 

brace and crutches. She indicated that her job required her to be on her feet all day, pushing and 

pulling heavy equipment and mail; however, she was unable to perform her job with a knee 

brace and crutches. Appellant advised that Dr. Hampton gave her a corticosteroid injection into 

her knee and a knee brace and recommended physical therapy. 

Appellant submitted a document entitled “Processing an Appeal Practice and Procedure 

Before the U.S. Employees’ Compensation Appeals Board.” She also submitted a copy of the 

20 C.F.R. § 501, the Code of Federal Regulations governing the Employees’ Compensation 

Appeals Board. 

In an June 23, 2016 decision, OWCP denied appellant’s February 28, 2016 request for 

reconsideration as the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4

 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

 4

 5 U.S.C. § 8128(a). 
4

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”5

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.6

ANALYSIS 

OWCP denied appellant’s claim because she had failed to provide sufficient medical 

evidence to establish that the diagnosed conditions were causally related to her work duties. On 

February 28, 2016 appellant requested reconsideration. 

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 request for reconsideration, appellant failed to show that OWCP erroneously 

applied or interpreted a specific point of law. In her notices of appeal dated October 13, 

December 31, 2015, and March 21, 2016, appellant requested payment for eight weeks of time 

off due to a fall while at work and payment for 12 weeks of physical therapy. She reiterated the 

facts of her claim noting that on January 21, 2015 she went outside to collect mail from blue 

boxes and she slipped and fell. Appellant was transported to the emergency room and prescribed 

a knee brace, crutches and was taken out of work for three days. She reported not being able to 

stand or walk without her knee brace and crutches. Appellant indicated that her job required her 

to be on her feet all day, pushing and pulling heavy equipment and mail; however, she was 

unable to work due to her knee brace and crutches. She also noted the treatment provided by 

Dr. Hampton. These assertions do not show a legal error by OWCP or a new and relevant legal 

argument. The underlying issue in this case is whether appellant sustained a traumatic injury 

causally related to the accepted employment injury of January 21, 2015. That is a medical issue 

which must be addressed by relevant new medical evidence.7

 However, appellant did not submit 

any new and relevant medical evidence in support of her claim. 

The only evidence submitted was a document entitled “Processing an Appeal Practice 

and Procedure before the U.S. Employees’ Compensation Appeals Board” and a copy of 

20 C.F.R. § 501. As noted, the underlying issue is medical in nature. This document is not 

relevant to the medical issue. The Board has held that evidence that does not address the 

particular issue involved does not constitute a basis for reopening a case.8

On appeal, appellant asserts that she submitted sufficient evidence to establish that she 

sustained a traumatic injury in the performance of duty. As explained above, the Board does not 

have jurisdiction over the merits of the claim. 

 5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608(b). 

7 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

8 C.N., Docket No. 08-1569 (issued December 9, 2008). 
5

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). 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 constitute relevant and pertinent new evidence not previously considered. Pursuant to 

20 C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the June 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 3, 2017 

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