United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Homewood, IL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0659 

Issued: September 15, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 30, 2015 appellant, through counsel, filed a timely appeal of an October 15, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days have elapsed from the last merit decision on October 16, 2013 to the filing of this 

appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

                                                             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. 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

reconsideration was insufficient to warrant merit review of her claim, pursuant to 5 U.S.C. 

§ 8128(a). 

FACTUAL HISTORY 

The case has previously been before the Board.3 The facts and circumstances set forth in 

the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal 

are set forth below. 

Appellant filed two traumatic injury claims in 1989 that have since been administratively 

combined. The initial claim was for a back injury sustained on November 7, 1989 when she 

stumbled while walking up steps. Appellant also filed a claim alleging that she injured her back 

on December 19, 1989 while delivering parcels. OWCP accepted that she sustained a 

lumbosacral strain and a herniated L4-5 disc with subsequent urinary incontinence. Appellant 

underwent lumbar surgery on February 3, 1992, returned to work intermittently, and began 

receiving wage-loss compensation on the periodic rolls as of May 14, 2006. 

By decision dated June 30, 2010, OWCP terminated appellant’s wage-loss compensation 

benefits, effective July 3, 2010. Appellant subsequently submitted multiple requests for 

reconsideration. In decisions dated January 13 and June 2, 2011, July 9, 2012, and October 16, 

2013, OWCP denied modification of its prior decision. On January 3, 2014 appellant appealed 

the October 16, 2013 decision to the Board. 

While appeal was pending before the Board, appellant continued to submit medical 

evidence to OWCP. The record contains, for example, reports dated February 19 and May 14, 

2014 from Dr. Samuel Ohlander, a surgeon, a March 3, 2014 report from Dr. Konstantin Slavin, 

a Board-certified neurosurgeon, and a May 22, 2014 report from Dr. Darrel Saldanha, a Boardcertified anesthesiologist. 

On June 25, 2014 appellant, through counsel, submitted a brief dated June 17, 2014, 

which contained arguments regarding her claim for compensation.4

 The brief reviewed the 

evidence of record, citing to Board case law and OWCP procedures. 

By decision dated July 7, 2014, the Board affirmed the October 16, 2013 decision.5

 The 

Board found that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation, effective July 3, 2010. In addition, the Board found that she had not established 

continuing employment-related disability on or after July 3, 2010. 

                                                             3

 Docket No. 14-526 (issued July 7, 2014). 

4

 The first page of the brief notes the Board’s mailing address and the title “ECAB brief,” but it was received by 

OWCP on June 25, 2014. 

5 Id.
3

On July 21, 2014 appellant, through counsel, requested reconsideration of the Board’s 

July 7, 2014 decision. With the reconsideration request, counsel submitted a copy of the 

June 17, 2014 brief. Counsel contended that OWCP did not follow its procedures and that the 

case required further development. 

By decision dated October 15, 2014, OWCP found that the July 21, 2014 request for 

reconsideration was insufficient to warrant merit review of the claim. It found that the brief 

submitted was “repetitious, a copy of documentation that was previously of file and considered 

in the contested decision.” As to medical evidence, OWCP referred to a May 22, 2014 report 

that was “a duplication of medical evidence” already of record. 

LEGAL PRECEDENT 

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

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.6

 Section 10.608(a) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).7 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (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.8

 Section 10.608(b) provides that when a request for 

reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.9

ANALYSIS 

On July 21, 2014 appellant requested reconsideration. Both counsel and OWCP referred 

to the July 21, 2014 letter as a request for reconsideration of the July 7, 2014 Board decision. 

However, OWCP is not authorized to review Board decisions. Although the July 7, 2014 Board 

decision was the last merit decision, the October 16, 2013 decision is the appropriate subject of 

possible modification by OWCP.10 The October 16, 2013 decision denied modification of a 

prior decision, which terminated appellant’s wage-loss compensation benefits, effective 

July 3, 2010. On January 3, 2014 appellant appealed the October 16, 2013 decision to the Board. 

On June 25, 2014 counsel submitted the June 17, 2014 brief to OWCP. The Board issued its 

decision on July 7, 2014, affirming the October 16, 2013 decision. On July 25, 2014 counsel 

submitted a request for reconsideration along with a copy of the June 17, 2014 brief. In denying 

                                                             6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.608(a). 

8 Id. at § 10.606(b)(3). 

9 Id. at § 10.608. 

10 Id. at § 501.6(d). 
4

the request for reconsideration, OWCP found that the brief was “repetitious, a copy of 

documentation that was previously of file, and considered in the contested decision.” 

The Board finds that the June 17, 2015 brief, which contains relevant legal arguments 

with regard to the matter of whether OWCP properly terminated appellant’s benefits and whether 

she has any residuals or continuing disability, was not previously considered by OWCP. The 

record indicates that the brief was initially submitted to OWCP on June 25, 2014, but this was 

after OWCP’s October 16, 2013 decision and the Board in its July 7, 2014 decision only 

reviewed evidence that was before OWCP at the time of the October 16, 2013 decision. 

Moreover, there is no evidence that appellant timely submitted the brief to the Board or that it 

was considered in the July 7, 2014 decision. The Board did not review any specific arguments or 

indicate that she had raised arguments on appeal. 

As appellant has advanced a new and relevant legal argument not previously considered 

by OWCP, she is entitled to a review of the merits of her claim under section 10.606(b)(3) of 

OWCP’s regulations.11 The case shall therefore be remanded to OWCP for a proper review of 

the evidence submitted to OWCP following its October 16, 2013 decision and the decision on the 

issue presented. After this and other further development as warranted, OWCP shall issue an 

appropriate decision. 

CONCLUSION 

The Board finds that OWCP improperly determined that appellant’s request for 

reconsideration was insufficient to warrant merit review of her claim, pursuant to 5 U.S.C. 

§ 8128(a). 

                                                             11 Supra note 7. 
5

ORDER 

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

Compensation Programs dated October 15, 2014 is set aside and the case is remanded for further 

action consistent with this decision of the Board.12

Issued: September 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

                                                             12 James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the 

Board effective November 16, 2015.