United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.S., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Los Angeles, CA, 

Employer 

__________________________________________ 

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Docket No. 17-0168 

Issued: April 19, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 1, 2016 appellant filed a timely appeal from an October 20, 2016 nonmerit 

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

elapsed since the last OWCP merit decision dated November 17, 2015 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 case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration of 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts of the case as presented in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On October 27, 2014 appellant, then a 42-year-old mail handler, submitted an October 1, 

2014 traumatic injury claim (Form CA-1) alleging that he sustained a back injury on 

November 9, 2010. On the claim form he reported that he was loading and unloading trucks. 

Appellant later reported that, after unloading and loading containers on November 8, 2010, he 

had felt muscle spasms and he “called off from work” on November 9, 2010. On the reverse side 

of the claim form appellant’s supervisor asserted that appellant had never reported an injury and 

he had not seen a physician. The employing establishment submitted an October 27, 2014 letter 

from a human resources specialist, which indicated that he had worked on November 9, 2010 

and had never reported an injury to his supervisor. The specialist wrote that appellant had also 

filed CA-2 forms claiming back injuries due to unloading and loading trucks, with dates of injury 

as May 24 and July 12, 2010. According to the human resources specialist, appellant’s 

employment was terminated as of July 13, 2012 due to violation of a “last chance” agreement.3

By decision dated December 18, 2014, OWCP denied appellant’s claim finding that it 

was untimely filed under 5 U.S.C. § 8122. It indicated that the date of injury was November 9, 

2010, but the claim was not filed until October 1, 2014. 

On December 31, 2014 OWCP received a request for a review of the written record by an 

OWCP hearing representative. By decision dated May 8, 2015, the hearing representative 

affirmed the December 18, 2014 OWCP decision. She found that the evidence of record did not 

establish the claim was timely filed. The hearing representative noted that appellant had claimed 

the employing establishment had timely notice of injury, but the use of sick leave did not 

establish notification of an employment injury.4

Appellant requested reconsideration on May 21, 2015, indicating that he was submitting 

additional evidence. OWCP however never received additional evidence. By decision dated 

August 11, 2015, it reviewed the merits of the claim and denied modification. OWCP again 

found that the claim was untimely filed under 5 U.S.C. § 8122. 

On August 21, 2015 appellant again requested reconsideration. He argued that the 

evidence submitted was sufficient to modify the denial of the claim. Appellant discussed other 

claims that he had filed and then indicated that the current claim should be considered an 

occupational claim, as it involved activity on November 9, 19, and 30, 2010. He also argued that 

 2

 Docket No. 16-0601 (issued June 21, 2016). 

3

 A notice of removal dated June 4, 2012 indicated that appellant had signed a “last chance agreement” on 

October 18, 2010, which was intended to provide him a last opportunity to show that he could be a productive and 

dependable employee. 

4

 Appellant had also alleged that notice was given to the employing establishment in investigative interviews on 

June 7 and 30, 2011. The hearing representative indicated that these interviews were more than 30 days after the 

date of injury, and in any case only provided notification that sick leave was used on November 9, 2010. 
3

OWCP had not properly considered evidence and he should not have been removed from 

employment. 

In a decision dated November 17, 2015, OWCP reviewed the case on its merits and 

denied modification. It reviewed appellant’s arguments and again found that the claim for 

compensation was untimely filed. 

Appellant again requested reconsideration on November 23, 2015. By decision dated 

January 27, 2016, OWCP determined the reconsideration request was insufficient to warrant a 

merit review of the claim. It found that appellant had failed to submit relevant evidence or 

argument with respect to the issue presented. Appellant appealed to the Board. 

By decision dated June 21, 2016, the Board affirmed the November 17, 2015 and 

January 27, 2016 OWCP decisions.5

 The Board found that there was no probative evidence of 

record to establish that appellant had timely filed a claim for injury on November 8, 2010. 

On June 29, 2016 appellant again requested reconsideration. He alleged that his claim 

should have been converted to an occupational disease claim and that he had given notice within 

30 days of injury. Appellant referred to the last chance agreement and alleged that this provided 

notice. On July 22, 2016 he submitted a copy of the Board’s June 21, 2016 decision with 

handwritten notes. Appellant claimed that he had not “officially” received a copy of the decision 

and disputed that he had filed a Form CA-1 alleging an injury on November 9, 2010. 

By decision dated October 20, 2016, OWCP denied reconsideration of the merits of the 

claim. It found that appellant had not met any of the requirements to warrant a merit review of 

the claim. 

LEGAL PRECEDENT 

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

OWCP’s regulations provides 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 

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 evidence not previously considered by OWCP.”7

 20 C.F.R. 

§ 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.8

 5 Supra note 2. 

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”). 

7

 20 C.F.R. § 10.606(b)(3). 

8 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
4

ANALYSIS 

In the present case, appellant requested reconsideration of the determination that his 

claim for an injury on November 8, 2010 was untimely filed. 

Appellant has not shown that OWCP erroneously applied or interpreted a specific point 

of law, or advance new and relevant legal argument. OWCP found that the injury claim was 

untimely filed under 5 U.S.C. § 8122. 

The Board finds that appellant has not shown that OWCP erroneously interpreted or 

applied 5 U.S.C. § 8122. Appellant reiterated arguments that he felt his claim should have been 

converted to an occupational disease claim. The claim filed was a traumatic injury claim for an 

injury on November 8, 2010.9

 As the Board noted, while appellant referred to taking sick leave 

on November 19 and 30, 2010, he did not discuss job duties on additional dates. Appellant 

initially identified the date of injury as November 9, 2010, but explained the loading and 

unloading of the truck occurred on November 8, 2010 and he took sick leave on 

November 9, 2010. 

According to appellant, the last chance agreement provided notice within 30 days of the 

injury. This argument has no color of validity, as the agreement was signed on October 18, 

2010, before the alleged injury on November 8, 2010. Where the legal argument presented has 

no reasonable color of validity, OWCP is not required to reopen the case for merit review.10

Appellant has also alleged that he did not file a traumatic injury claim as reported in the 

Board’s prior decision. The record contains a Form CA-1 filed on October 27, 2014, and this is 

the claim addressed by OWCP and the Board on appeal. Appellant also refers to not “officially” 

receive a copy of the Board’s decision dated July 21, 2016, but he had a copy of the decision and 

the Board’s decision was issued to his last known address.11 The Board has held that in the 

absence of evidence to the contrary, it is presumed that a notice mailed to an addressee in the 

ordinary course of business was received by the addressee.12 

The Board also finds that, on reconsideration, appellant did not submit any additional 

evidence. Therefore, appellant did not submit any relevant and pertinent new evidence not 

previously considered by OWCP. 

As appellant has not shown that OWCP erroneously applied or interpreted a specific 

point of law, advanced a relevant legal argument not previously considered by OWCP, or 

submitted relevant and pertinent evidence not previously considered by OWCP, he did not meet 

any of the requirements of 20 C.F.R. § 10.606(b)(3). 

 9

 A traumatic injury is condition caused by specific events or incidents within a single workday or shift. 

20 C.F.R. § 10.5(ee). 

10 See Norman W. Hanson, 40 ECAB 1160 (1989). 

11 20 C.F.R. § 10.127 provides that a copy of the decision shall be mailed to the employee’s last known address. 

12 See Larry L. Hill, 42 ECAB 596, 600 (1991). 
5

On appeal, appellant has written notes on documents of record arguing that his claim was 

timely filed. The issue before the Board is whether his reconsideration request met any of the 

requirements of 20 C.F.R. § 10.606(b)(3). For the reasons discussed above, the Board finds that 

appellant was not entitled to a merit review of his claim. 

CONCLUSION 

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

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

ORDER 

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

Compensation Programs dated October 20, 2016 is affirmed. 

Issued: April 19, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board