United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.V., Appellant 

and 

U.S. POSTAL SERVICE, FIVE POINTS 

STATION, Akron, OH, Employer 

__________________________________________ 

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Docket No. 16-0099 

Issued: March 2, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 20, 2015 appellant, through counsel, filed a timely appeal from an August 6, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days have elapsed from the last merit decision of May 30, 2014 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 refused to reopen appellant’s case for further 

review on the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal appellant’s counsel contended that OWCP’s decision was contrary to fact and 

law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 13, 2013 appellant, then a 41-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that she suffered a torn meniscus of the left knee in the course of her 

federal employment. She noted that, upon returning from her route on February 28, 2013, she 

started having extreme pain in her left knee. Appellant stopped work on May 3, 2013. 

In support of her claim, appellant submitted results from a magnetic resonance imaging 

scan conducted on April 12, 2013 that was interpreted as showing a complex tear of the anterior 

horn lateral meniscus with an associated intrameniscal cyst and full-thickness chondral central 

trochlea. She received medical treatment from April 23 through June 18, 2013 from Dr. Michael 

LoPresti, a Board-certified orthopedic surgeon, who diagnosed appellant with torn left meniscus 

and arthralgia of the left knee. He performed an arthroscopy of the left knee and partial lateral 

meniscectomy on May 3, 2013. 

By decision dated September 11, 2013, OWCP denied appellant’s claim, finding that she 

failed to establish that her accepted factors of federal employment caused her accepted left knee 

internal derangement and lateral meniscus tear. 

On September 16, 2013 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative. At the hearing held on March 11, 2014, she discussed her 

work history, her issues with her left knee, and her medical treatment. 

By decision dated May 30, 2014, the hearing representative affirmed the September 11, 

2013 decision. 

On May 22, 2015 appellant, through counsel, requested reconsideration. In support 

thereof, counsel submitted reports from Suburban Physical Therapy from 

May 10 through 17, 2013. In these reports, Michael Janesch, appellant’s treating physical 

therapist, noted that appellant had surgery on May 3, 2013 for a left knee lateral meniscus tear, 

and he discussed his physical therapy treatment of appellant. 

By decision dated August 6, 2015, OWCP denied appellant’s request for reconsideration 

without conducting a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

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.3 To be entitled to a merit review 

 2 Supra note 1. Under section 8128 of FECA, “[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). 

3 20 C.F.R. § 10.606(b)(3). 
3

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

also be received within one year of the date of that decision.4 When a claimant fails to meet one 

of the above standards, OWCP will deny the application for reconsideration without reopening 

the case for review on the merits.5

 

ANALYSIS 

OWCP found that appellant had established that she experienced the working conditions 

as alleged and that appellant sustained internal derangement of the left knee with a torn lateral 

meniscus. However, it denied appellant’s claim because she had not submitted medical evidence 

establishing a causal relationship between the accepted medical conditions and the accepted 

factors of her federal employment. 

The last merit decision in this case was the hearing representative’s decision of May 30, 

2014 affirming the September 11, 2013 decision denying appellant’s claim for failure to establish 

a causal relationship between her accepted employment factors and her accepted torn meniscus. 

The Board is restricted to reviewing OWCP decisions issued within 180 days of appellant’s 

October 20, 2015 date of filing of this appeal and, therefore, the Board does not have jurisdiction 

over the merits of this case. Accordingly, the Board is limited to reviewing the nonmerit 

decision denying reconsideration issued on August 6, 2015. The Board will only address 

whether appellant’s request for reconsideration was properly denied without merit review.6

As previously noted, OWCP determined that appellant experienced the employment 

factors as alleged and that she suffered from a torn meniscus, but denied appellant’s claim as she 

failed to submit rationalized medical evidence establishing a causal connection between her torn 

meniscus and her accepted employment factors. Causal relationship is a medical issue and must 

be established by rationalized medical evidence. Appellant’s claim was denied as she had not 

submitted any medical evidence establishing a causal relationship. 

In support of appellant’s reconsideration request, counsel submitted notes from her 

physical therapist. Reports of physical therapists however have no probative value regarding the 

medical issue of causal relationship as physical therapists are not considered physicians as 

defined by FECA.7

 Therefore, the reports of appellant’s physical therapist do not constitute 

relevant and pertinent medical evidence.8

 4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 

6 Id. at § 501.3(e). 

7

 The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, 

and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); J.G., 

Docket No. 15-251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18, 2008) (records from 

physical therapists do not constitute competent medical opinion in support of causal relation, as physical therapists 

are not physicians as defined under FECA). 

8 A.L., Docket No. 15-1418 (issued October 8, 2015). 
4

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

interpreted a specific point of law, has not advanced a relevant legal argument not previously 

considered by OWCP, and has not constituted relevant and pertinent new evidence not 

previously considered by OWCP. Accordingly, the Board finds that she did not meet any of the 

necessary requirements and is not entitled to further merit review.9

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review on the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

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

Compensation Programs dated August 6, 2015 is affirmed. 

Issued: March 2, 2016 

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 

 9 See L.H., 59 ECAB 253 (2007).