United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Warminster, PA, Employer

__________________________________________

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Docket No. 18-0170

Issued: August 28, 2018

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 30, 2017 appellant, through counsel, filed a timely appeal from a May 4, 2017 

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

days elapsed from the last merit decision, dated February 2, 2016, 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 the case.

 

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 denied appellant’s request for reconsideration of the 

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

FACTUAL HISTORY

On December 20, 2003 appellant, then a 39-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 19, 2003 she injured her right knee while in the 

performance of duty. She reported feeling a twinge and cramping in her right knee, as well as a 

burning sensation. OWCP accepted appellant’s claim for right knee strain and right knee medial 

meniscus tear. It also authorized right knee arthroscopic surgery, which she underwent on 

March 25, 2004.3 OWCP paid appellant wage-loss compensation for temporary total disability for 

the period March 25 through May 3, 2004. Appellant resumed her regular, full-time letter carrier 

duties effective May 4, 2004. Between July 2004 and February 2011 there was minimal activity 

with respect to her claim.

On October 15, 2014 appellant, through counsel, filed a claim for a schedule award (Form 

CA-7). In support of the claim, counsel submitted a July 22, 2014 narrative report from Dr. David 

Weiss, an osteopath Board-certified in clinical orthopedic surgery, who provided an impairment 

rating of the right lower extremity under the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

4 Dr. Weiss diagnosed posttraumatic internal derangement to the right knee with a medial meniscus tear, chronic posttraumatic patellofemoral pain syndrome of the right knee, post-traumatic osteoarthritis of the right 

knee, status post arthroscopic surgery with a history of partial medial meniscectomy in 2004, and 

recurrent injury to the right knee on May 20, 2013, with a lateral meniscus tear.5 He concluded 

that appellant reached maximum medical improvement (MMI) on July 22, 2014, and calculated 

that her right lower extremity permanent impairment was 13 percent based on a diagnosis of right 

knee medial and lateral meniscal tears.

OWCP referred Dr. Weiss’ report to a district medical adviser (DMA) in order to determine 

whether he appropriately applied the A.M.A., Guides in calculating appellant’s percentage of 

permanent impairment. 

In a November 18, 2014 report, the DMA noted that Dr. Weiss rated appellant for a medial 

meniscal injury as well as a nonwork-related lateral meniscal injury. He noted that her claim was 

accepted for a medial meniscectomy and that she was status post meniscal repair. For this accepted 

condition, the DMA found that a final lower extremity impairment was three percent. He also 

provided a separate rating for the combined work-related medial meniscal injury and nonworkrelated lateral meniscal injury, finding that the impairment rating for this injury was 12 percent. 

The DMA noted that he did not have the magnetic resonance imaging (MRI) scan report for the 

 

3 Dr. Anthony J. Balsamo, a Board-certified orthopedic surgeon, performed a partial medial meniscectomy. 

4 A.M.A., Guides (6th ed. 2009).

5 Dr. Weiss reported that appellant sustained another work-related injury on May 18, 2013 when she “hit a ditch”

and developed pain in her right knee. 
3

latter injury, and that, if OWCP were to accept the rating for the latter injury, he recommended 

that OWCP obtain a copy of the MRI scan performed on June 3, 2013 in order to confirm its 

findings. He noted that the date of MMI was July 22, 2014, and further noted that appellant’s right 

knee condition had stabilized at that time.

By decision dated April 16, 2015, OWCP found that appellant had three percent permanent

impairment of the right lower extremity. It relied upon the DMA’s calculations of her percentage 

of impairment, noting that it had only accepted a torn medial meniscus in her claim, and not a 

nonwork-related lateral meniscus injury. OWCP found that the DMA’s impairment rating, taking 

into account the accepted condition only, was the correct calculation for schedule award purposes.

On April 22, 2015 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. The hearing was held on November 19, 2015. At the hearing, counsel 

argued that the medical evidence demonstrated a progression of the accepted meniscus tear into 

an accelerated osteoarthritis, as well as a potential contribution to a lateral meniscus tear. He 

argued that OWCP should accept additional conditions under appellant’s claim due to the 

progression of her disease. Counsel alleged that there was sufficient medical evidence on file in 

order to support the acceptance of additional conditions on her claim. The hearing representative 

held the record open for 30 days for the submission of additional evidence.

By decision dated February 2, 2016, the hearing representative affirmed OWCP’s April 16, 

2015 decision. She found that appellant had not yet provided a medical report sufficiently 

explaining the basis for a higher impairment rating than three percent based on her accepted injury. 

The hearing representative noted that, at the hearing, counsel argued that appellant’s lateral 

meniscus condition should be considered consequential to her accepted right medial meniscus 

injury. She further found that the medical evidence of record was insufficient to support 

acceptance of a right knee lateral meniscus injury causally related to appellant’s December 19, 

2003 employment injury.

On February 2, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

February 2, 2016 decision. With the request for reconsideration, counsel argued that OWCP 

should have further developed the evidence with regard to causation between her accepted right 

medial meniscus injury and her lateral meniscus injury. He noted that the DMA had not addressed 

causation in his report, but rather simply noted that the lateral meniscus injury was not presently 

accepted.

By decision dated May 4, 2017, OWCP declined appellant’s request for reconsideration 

without reviewing the merits of her claim. It found that counsel had not established that OWCP 

erroneously applied or interpreted a specific point of law nor did he advance a relevant legal 

argument not previously considered by OWCP. As no medical evidence was received in support 

of the reconsideration request it determined that counsel’s disagreement of the impairment rating 

previously awarded did not suffice as relevant or material evidence on which to grant the 

reconsideration request.
4

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 One such limitation is that the request for reconsideration

must be received by OWCP within one year of the date of the decision for which review is sought.8 

A timely application for reconsideration, including all supporting documents, must 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.9 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.10

ANALYSIS

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).

OWCP issued a decision dated April 16, 2015 finding that appellant was entitled to a 

schedule award for three percent permanent impairment of her right lower extremity, based on the 

accepted injury of a right knee medial meniscus tear. A hearing representative upheld this decision 

on February 2, 2016, finding that appellant had not submitted sufficient medical evidence to accept 

the condition of a lateral meniscus tear consequential to her accepted injury. On February 2, 2017 

appellant, through counsel, requested reconsideration of OWCP’s February 2, 2016 decision. As 

noted above, the Board does not have jurisdiction over the merits of the schedule award 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 in the February 2, 2017 request for reconsideration that OWCP should accept or further 

develop the issue of whether her lateral medial meniscus tear was a consequential injury to her 

accepted right knee medial meniscus tear, this argument had previously been considered in the 

hearing representative’s February 2, 2016 decision. As such, appellant is not entitled to a review 

 

6 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

9 20 C.F.R. § 10.606(b)(3).

10 Id. at § 10.608(a), (b).
5

of the merits of her claim based on the first and second above-noted requirements under section 

10.606(b)(3).

The underlying issue is whether appellant has greater than three percent permanent 

impairment of the right lower extremity. On reconsideration, counsel did not submit additional 

medical evidence demonstrating a greater impairment due to her accepted right knee medial 

meniscus tear. He also did not submit any additional medical evidence that would warrant further 

merit review with respect to appellant’s claimed right lateral meniscal injury. As such, appellant 

is not entitled to a review of the merits of her claim based on the third requirement under section 

10.606(b)(3).

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). 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 May 4, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 28, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board