United States Department of Labor

Employees’ Compensation Appeals Board

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M.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

City of Industry, CA, Employer

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Docket No. 17-0574

Issued: June 26, 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 January 17, 2017 appellant filed a timely appeal from a November 8, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated August 12, 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 the claim.

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 February 4, 2014 appellant, then a 54-year-old mail carrier technician, filed an

occupational disease claim (Form CA-2) alleging that he developed a left knee condition as a result 

 

1 5 U.S.C. § 8101 et seq.
2

of his federal employment duties, including prolonged walking, standing, bending, and stooping.

2

 

He had previously filed two traumatic injury claims for a slip and fall onto a stairway on June 17, 

2011 (File No. xxxxxx383) and a slip and fall on uneven pavement on May 11, 2012 (File No. 

xxxxxx415). Appellant stopped work on May 23, 2013 and has not returned.

OWCP referred appellant to Dr. Michael Einbund, a Board-certified orthopedic surgeon, 

for a second opinion evaluation to determine the nature and extent of his employment-related 

conditions. In a May 8, 2014 report, Dr. Einbund found that appellant had underlying degenerative 

joint disease in the left knee, which was quite advanced. He further found a medial meniscus tear 

which was also degenerative in nature. Dr. Einbund diagnosed left knee degenerative joint disease, 

left knee degenerative medial meniscus tear, and history of left knee contusion, June 2011, 

resolved. He opined that appellant’s left knee condition was not causally related to factors of his 

federal employment, but the result of a nonwork-related, underlying degenerative joint disease.

By decision dated May 20, 2014, OWCP denied appellant’s claim, finding that the medical 

evidence of record failed to establish that appellant’s diagnosed conditions were causally related 

to factors of his federal employment.

On October 6, 2014 appellant requested reconsideration and submitted two duty status 

reports (Form CA-17) dated September 29, 2014 and January 22, 2015 from Dr. Basimah Khulusi, 

a Board-certified physiatrist, who diagnosed left knee meniscus tear and provided work 

restrictions.

By decision dated March 5, 2015, OWCP denied modification of its prior decision, finding 

that Dr. Einbund’s May 8, 2014 opinion represented the weight of the medical evidence.

On May 15, 2015 appellant again requested reconsideration and submitted an April 23, 

2015 duty status report (Form CA-17) from Dr. Khulusi providing work restrictions. He further 

submitted a May 11, 2015 report from Dr. Khulusi who diagnosed acceleration of left knee 

degenerative joint disease, left knee chondromalacia, and left knee medial meniscus tear and 

extrusion. Dr. Khulusi opined that appellant’s multiple falls on the job resulted in a tear to the left 

medial meniscus of the left knee joint, which caused permanent aggravation of the degeneration 

of the left knee joint.

By decision dated August 12, 2015, OWCP denied modification of its prior decision,

finding that the weight of the medical evidence still resided with Dr. Einbund. It found that the 

medical opinion of Dr. Einbund was well rationalized as it explained how his left knee condition 

resulted from his preexisting degenerative knee condition and not due to his repetitive work duties 

of prolonged walking, standing, bending, and stooping as a mail carrier technician. It further found 

that the opinion of Dr. Khulusi lacked medical rationale explaining how appellant’s work as a Mail 

Carrier Technician caused or aggravated his claimed conditions.

On August 15, 2016 appellant again requested reconsideration and submitted a 

February 26, 2014 report from Dr. Frederic Nicola, a Board-certified orthopedic surgeon serving 

as an OWCP second opinion examiner in File No. xxxxxx383. He also submitted a January 27, 

 

2 The claim was assigned OWCP File No. xxxxxx417.
3

2016 duty status report (Form CA-17) from Dr. Khulusi who diagnosed left knee degenerative 

joint disease and provided work restrictions. In a July 25, 2016 report, Dr. Khulusi referred to

Dr. Nicola’s February 26, 2014 second opinion report and noted that he had diagnosed 

tricompartmental osteoarthritis of the left knee with medial meniscus tear sustained on 

June 17, 2011. She then reiterated her diagnoses and opined that appellant’s left knee conditions

were causally related to the left medial meniscus tear he sustained at work on June 17, 2011.

By decision dated November 8, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of his claim because he failed to advance a relevant legal argument 

or submit any relevant and pertinent new evidence.

LEGAL PRECEDENT

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

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 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.5 

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.6 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.7

ANALYSIS

Appellant’s August 15, 2016 request for reconsideration neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board 

finds that he did not advance a relevant legal argument not previously considered by OWCP. 

Consequently, appellant is not entitled to further review of the merits of his claim based on the 

first and second above-noted requirements under section 10.606(b)(3).

 

3 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).

4 20 C.F.R. § 10.607.

5

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.

6 20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).
4

The Board also finds that appellant failed to submit relevant and pertinent new evidence 

not previously considered by OWCP. Along with his reconsideration request, he submitted a

February 26, 2014 report from Dr. Nicola, his OWCP second opinion examiner in File No. 

xxxxxx383. Dr. Nicola’s second opinion evaluation was obtained by OWCP to develop

appellant’s traumatic injury claim for a slip and fall onto a stairway on June 17, 2011. The Board 

finds that submission of this evidence did not require reopening appellant’s case for merit review 

because it failed to address the issue of causal relationship between appellant’s left knee condition 

and factors of his federal employment, which was the issue before OWCP in this occupational 

disease claim. Thus, the Board finds that this report does not constitute relevant and pertinent new 

evidence and is, therefore, insufficient to require OWCP to reopen the claim for consideration of 

the merits.

Appellant further submitted a July 25, 2016 report from Dr. Khulusi who referred to

Dr. Nicola’s February 26, 2014 second opinion evaluation and opined that appellant’s left knee 

conditions were causally related to the left medial meniscus tear he sustained at work on 

June 17, 2011. The Board finds that submission of this evidence did not require reopening 

appellant’s case for merit review because it failed to address the underlying issue of causal 

relationship between appellant’s left knee conditions and factors of his federal employment, which 

was the issue before OWCP. Thus, the Board finds that this report does not constitute relevant 

and pertinent new evidence and is, therefore, insufficient to require OWCP to reopen the claim for 

consideration of the merits.

Also in support of his reconsideration request, appellant submitted a January 27, 2016 duty 

status report (Form CA-17) from Dr. Khulusi who diagnosed left knee degenerative joint disease 

and provided work restrictions. The Board finds that submission of this report is insufficient to 

require reopening the case for merit review because it does not contain medical rationale relating 

the left knee condition to factors of appellant’s federal employment, which was the underlying 

issue before OWCP.8 Therefore, this report does not constitute relevant and pertinent new 

evidence and is, therefore, insufficient to require OWCP to reopen appellant’s claim for 

consideration of the merits in accordance with the third above-noted requirement under section 

10.606(b)(3).9

The Board finds that OWCP properly determined that appellant was not entitled to further 

review of the merits of his claim pursuant to any of the three requirements under section 

10.606(b)(3) and, therefore, properly denied his request for reconsideration.

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).

 

8 See 5 U.S.C. § 8101(2). See also Paul Foster, 56 ECAB 208, 212 n.12 (2004).

9 See V.H., Docket No. 15-1262 (issued March 18, 2016).
5

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 26, 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