United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Columbus, OH, Employer 

__________________________________________ 

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Docket No. 15-1142 

Issued: August 19, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 April 24, 2015 appellant filed a timely appeal from a January 22, 2015 nonmerit 

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

elapsed from the last merit decision of June 10, 2013 to 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 over the merits of this claim. 

ISSUE 

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

review of the merits as his reconsideration request was untimely filed and did not establish clear 

evidence of error. 

FACTUAL HISTORY 

On April 17, 2013 appellant, then a 62-year-old mail handler, filed an occupational 

disease claim alleging that he developed arthritis in his right knee as a result of his employment. 

 1

 5 U.S.C. § 8101 et seq.
2

He first became aware of his condition on September 15, 2011 and realized it resulted from his 

employment on March 31, 2013. Appellant stopped work and returned to light duty on 

April 5, 2013. 

In a handwritten statement, appellant explained that in March he began to feel a 

considerable amount of discomfort on his right knee and walked with a definite limp. On 

March 31, 2013 he was walking to his job on the loading dock when his right knee suddenly 

buckled and he fell down. Appellant did not return to work his next shift and sought medical 

treatment. 

By letter dated April 22, 2013, OWCP advised appellant that the evidence submitted was 

insufficient to establish his claim. It requested additional factual evidence regarding what 

employment factors he believed contributed to his condition and additional medical evidence to 

establish that he sustained a diagnosed condition causally related to his employment. 

On April 4, 2013 appellant was examined in the emergency room by Dr. Marvin 

McCreary, Board-certified in emergency medicine. In April 4, 2013 discharge instructions, 

Dr. McCreary noted appellant’s complaints of right knee pain after it suddenly “gave out.” 

Appellant reported that he had some mild right knee pain for the last two weeks. Dr. McCreary 

noted that appellant worked for the employing establishment and did a lot of standing and 

walking. He reviewed appellant’s history and provided examination findings. Dr. McCreary 

diagnosed right knee pain. 

Appellant submitted an April 5, 2013 state workers’ claim form which indicated that on 

March 31, 2013 his right knee gave out at work. 

In an April 5, 2013 x-ray of the right knee, Dr. Ethan C. Hansen, a Board-certified 

diagnostic radiologist, observed moderate-to-severe osteoarthritis. 

In a decision dated June 10, 2013, OWCP denied appellant’s occupational disease claim 

because it found that appellant failed to provide a statement describing the work factors he 

believed caused or contributed to his right knee pain and failed to provide medical evidence 

which established a diagnosed condition causally related to factors of his employment. 

On June 10, 2014 OWCP received appellant’s request for reconsideration. Appellant 

stated that since February 2011 he experienced right knee pain and had to undergo cortisone 

shots because of walking on concrete floors. He alleged that walking on concrete floors 

damaged and aggravated his right knee. Appellant claimed that he had two physician’s opinions 

that would establish that walking on concrete floors would destroy your knee. He stated that 

over the years he also did a lot of kneeling, bending, and climbing on ladders. 

Appellant submitted a witness statement dated April 4, 2013 from Kim Harrington, a 

coworker. He stated that she observed him walking down the dock when his knee gave out. 

In a June 9, 2013 report, Dr. Joel R. Politi, a Board-certified orthopedic surgeon, noted 

that appellant complained of severe and worsening right knee pain for the past three weeks. He 

reviewed appellant’s history and conducted an examination. Dr. Politi observed mild swelling 

and tenderness over the right medial joint line of the right knee. Examination of the left knee 

revealed it to be normal to inspection and palpation and no swelling. Dr. Politi reported that 
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x-rays revealed severe degenerative joint disease of both knees. He diagnosed osteoarthritis of 

the lower leg. Dr. Politi recommended that appellant remain on light duty and continue with 

injections until he decided whether to undergo surgery. He provided a light-duty restriction 

form. 

By decision dated January 22, 2015, OWCP denied appellant’s request for 

reconsideration finding that it was untimely filed and failed to establish clear evidence of error. 

It noted that his June 10, 2014 reconsideration request was not made within one year of the last 

OWCP merit decision on June 10, 2013. 

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, 

OWCP regulations provide that an application for reconsideration must be received by OWCP 

within one year of the date of OWCP’s decision for which review is sought.2

 The Board has 

found that the imposition of the one-year time limitation does not constitute an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA.3

 The one-year period 

begins on the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board.4

ANALYSIS 

The Board has reviewed the record on appeal and remands the case to OWCP for 

application of the correct standard of review because appellant’s request for reconsideration was 

timely submitted. 

An application for reconsideration must be received by OWCP within one year of the 

date of a merit review of the claim, including any merit review by the Board.5 The last merit 

decision of the record was OWCP’s June 10, 2013 decision denying appellant’s occupational 

disease claim. Because appellant’s reconsideration request dated June 9, 2014 and received on 

June 10, 2014 was made within one year of OWCP’s merit decision dated June 10, 2013, the 

Board concludes that the request was timely.6

The Board notes that OWCP’s January 22, 2015 decision erroneously noted that 

appellant had until June 9, 2014 to file a timely request for reconsideration of the June 10, 2013 

decision. However, appellant had one year from the actual date of the June 10, 2013 decision 

rather than the day before. In its January 22, 2015 decision denying appellant’s reconsideration 

 2

 20 C.F.R. § 10.607. 

3

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

4 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 

5 Supra note 2. 

6 C.V., Docket No. 14-1293 (issued February 23, 2015); J.N., Docket No. 12-1543 (issued February 12, 2013). 
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request, OWCP applied the clear evidence of error legal standard. This standard is the 

appropriate standard only for cases in which a reconsideration request is untimely filed.7 Since 

OWCP erroneously reviewed the evidence submitted by appellant in support of his 

reconsideration request under the clear evidence of error standard, the Board will remand the 

case to OWCP for application of the standard for reviewing a timely request for reconsideration 

as set forth at 20 C.F.R. § 10.606(b)(2). 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the January 22, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion. 

Issued: August 19, 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 

 7 See Donna M. Campbell, 55 ECAB 241 (2004).