United States Department of Labor

Employees’ Compensation Appeals Board

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F.P., Appellant

and

U.S. POSTAL SERVICE, VEHICLE 

MAINTENANCE FACILITY, Seattle, WA, 

Employer

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Docket No. 18-0168

Issued: December 3, 2018

Appearances: Case Submitted on the Record

James Vasquez, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 30, 2017 appellant filed a timely appeal from a June 29, 2017 merit decision 

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

from July 5, 2016, the date of the most recent merit decision, to the filing of this appeal, pursuant 

 

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

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

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).

FACTUAL HISTORY

On March 10, 2016 appellant, then a 64-year-old tire repairman, filed a traumatic injury 

claim (Form CA-1) alleging that, on February 1, 2016, he fractured a right toe when a large tire 

fell on it while in the performance of duty. The claim form was signed by appellant and dated 

March 10, 2016. A supervisor noted that appellant stopped work on February 5, 2016 and had not 

yet returned.

By letter dated March 3, 2016, Dr. Connie Morantes, a Board-certified internist, noted that 

appellant experienced pain in his left foot following an injury at work on February 5, 2016. She

referred appellant for an evaluation with a foot specialist and recommended that he not return to 

work until his scheduled evaluation on April 4, 2016.

In a certification of a serious medical condition dated May 9, 2016, Dr. Kavita Kumar, a 

podiatric surgery specialist, diagnosed delayed healing of a hallux toe fracture of the left foot. She 

estimated that appellant’s condition would take three to four months to resolve. Dr. Kumar noted 

that appellant could not perform some duties of his job due to the condition, including standing, 

walking, lifting of heavy objects, bending, twisting, or pulling of the left leg and foot.

On June 27, 2016 appellant filed a claim for compensation (Form CA-7) for leave without 

pay (LWOP) from March 11 through 25, 2016. A supervisor noted that appellant was not eligible 

for continuation of pay (COP) due to delayed notification of his claim.

By letter dated July 5, 2016, OWCP notified appellant that compensation was not payable 

for the first three days of temporary disability after the expiration of COP in traumatic injury cases, 

unless the total period of disability was followed by permanent disability or exceeded 14 days. 

Because the evidence submitted did not indicate that he was disabled for more than 14 days, 

OWCP explained that it could not pay him compensation for the claimed date of March 11, 2016.

By decision dated July 5, 2016, OWCP accepted appellant’s claim for a nondisplaced 

unspecified fracture of the left great toe. On the same date, it denied his claim for COP for the 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the June 29, 2017 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
3

period February 2 through March 17, 2016. OWCP explained that COP was denied because the 

injury was not reported on a form approved by OWCP within 30 days following the injury.

On January 23, 2017 appellant filed a claim for compensation (Form CA-7) for LWOP 

from February 22 through March 4, 2016.

On April 25, 2017 appellant requested reconsideration of OWCP’s July 5, 2016 decision 

denying his claim for COP. In an attached letter dated April 18, 2017, counsel argued that because 

appellant timely reported the injury to his supervisor, he should be entitled to COP. He noted that 

appellant had to use his sick and annual leave in order to cover his period of disability, and that 

the employing establishment had “clawed back pay” that he had received due to his injury. 

Counsel argued that appellant relied on the employing establishment to submit the proper and 

appropriate forms to have OWCP consider his claim.

By decision dated June 29, 2017, OWCP denied appellant’s request for reconsideration. It 

found that the letter from counsel was irrelevant or immaterial and thus had no bearing on the 

underlying issue in this case. OWCP noted that appellant’s request for COP was denied because 

it was not on a form approved by OWCP within 30 days following the injury. Appellant’s date of 

injury was February 1, 2016, but he did not sign and date the Form CA-1 until March 10, 2016.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP’s regulations provide 

that when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration 

without reopening the case for a review on the merits.5

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.6 If the request is timely, but fails to meet at least 

one of the requirements for reconsideration, OWCP will deny the request for reconsideration 

without reopening the case for review on the merits.7

 

4 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

5

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
4

ANALYSIS

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).

OWCP issued a decision dated July 5, 2016 denying appellant’s request for COP, as his 

accepted injury was not reported on a form approved by OWCP within 30 days following the 

injury. Appellant timely filed a request for reconsideration of his claim with OWCP as it was filed 

within one year from the date of the last merit decision. 

As noted above, the Board does not have jurisdiction over the merits of the July 5, 2016 

decision. 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 his claim.

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, or advance a new and relevant legal argument not previously considered. While counsel 

argued that appellant’s claim was timely submitted for COP because appellant notified his 

supervisor in writing of his injury in a timely manner, OWCP had already considered this argument 

in its decision dated July 5, 2016. As such, appellant is not entitled to a review of the merits of his 

claim based on the first and second above-noted requirements under section 10.606(b)(3).8

The underlying issue is whether appellant timely requested COP. A claimant may be 

entitled to a merit review by submitting pertinent new and relevant evidence, but appellant did not 

submit any such evidence in this claim. While counsel argued that appellant’s claim was timely 

submitted for COP, no relevant and pertinent new evidence was submitted on reconsideration in 

support of this argument. As such, appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3) to warrant reconsideration of his claim.9

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for further review of the 

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

 

8

Id. at § 10.606(b)(3)(i) and (ii).

9

Id. at § 10.606(b)(3)(iii).
5

ORDER

IT IS HEREBY ORDERED THAT the June 29, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 3, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board