United States Department of Labor

Employees’ Compensation Appeals Board

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P.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Des Moines, IA, Employer

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Docket No. 18-0896

Issued: November 21, 2018

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 March 22, 2018 appellant filed a timely appeal from a November 29, 2017 nonmerit 

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

elapsed from the last merit decision dated September 7, 2017, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 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 

evidence for the first time on appeal. Id.
2

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 July 12, 2017 appellant, then a 57-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on June 27, 2017, he yanked his right shoulder to avoid a wasp that 

flew out of a mailbox. He stopped work on June 28, 2017 and returned on July 3, 2017.

In support of his claim, appellant submitted a July 30, 2017 physical therapy referral form 

and a June 30, 2017 patient status report form with diagnoses of right rotator cuff tendinitis and 

shoulder impingement. He also submitted a supplemental statement dated July 12, 2017 

describing the incident.

By letter dated July 27, 2017, the employing establishment controverted the claim. It 

contended that the case record lacked factual evidence sufficient to establish that the incident 

occurred as alleged and lacked medical evidence sufficient to establish causal relationship between 

the alleged incident and appellant’s claimed medical condition. 

By development letter dated July 31, 2017, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of medical and factual 

evidence required to establish his claim. OWCP afforded appellant 30 days to submit the requested 

information. 

By decision dated September 7, 2017, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the June 27, 2017 employment incident 

occurred as alleged. 

On November 27, 2017 appellant requested reconsideration. 

By decision dated November 29, 2017, OWCP denied appellant’s request for 

reconsideration as he had not raised any substantive legal question or submitted any new and 

relevant evidence with his request. 

LEGAL PRECEDENT

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

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

 

3 5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 

(issued February 23, 2010); W.C., 59 ECAB 372 (2008).
3

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.4

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

OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.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

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).

Appellant filed a timely request for reconsideration. However, he did not show that OWCP 

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

argument not previously considered by OWCP. Consequently, appellant was not entitled to a 

review of the merits based on the first and second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3).

With regard to the third requirement, OWCP did not receive additional evidence with 

appellant’s form requesting reconsideration. Accordingly, the Board finds that appellant has not 

submitted relevant and pertinent new evidence not previously considered by OWCP. 

The Board finds, therefore, that appellant has not met any of the regulatory requirements 

under section 10.606(b)(3) and OWCP properly declined his request for reconsideration of the 

merits of his claim under 5 U.S.C. § 8128(a).8

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).

 

4 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

5

Id. at § 10.607(a).

6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7

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

8 D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 

ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).
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ORDER

IT IS HEREBY ORDERED THAT the decision dated November 29, 2017 of the Office 

of Workers’ Compensation Programs is affirmed.

Issued: November 21, 2018

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