United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.P., Appellant

and

U.S. POSTAL SERVICE, HAVERTOWN POST 

OFFICE, Havertown, PA, Employer

__________________________________________

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Docket No. 19-0799

Issued: August 15, 2019

Appearances: Case Submitted on the Record

Aaron B. Aumiller, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 25, 2019 appellant, through counsel, filed a timely appeal from an August 28, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more 

than 180 days has elapsed from the last merit decision, dated May 30, 2017, to the filing of this 

 

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

“Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from August 28, 2018, the date of OWCP’s last decision was 

February 24, 2019. As this fell on a Sunday, appellant had until the following business day, Monday, February 25, 

2019 to file the appeal. Since using March 1, 2019, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is February 25, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

appeal, pursuant to the Federal Employees’ Compensation Act3(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 denied appellant’s request for reconsideration of the 

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On November 9, 1993 appellant, then a 47-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 5, 1993 he injured his right knee while in the 

performance of duty. OWCP accepted the claim for right knee sprain, a dislocation and sprain of 

the anterior cruciate ligament (ACL), a tear of the ACL, patellofemoral arthritis, a lateral meniscus 

tear, and synovitis. 

By decision dated July 16, 2001, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right lower extremity.

By decision dated April 8, 2002, an OWCP hearing representative vacated the July 16, 

2001 decision finding that appellant was entitled to a schedule award for an additional 17 percent 

permanent impairment of the right lower extremity.

On remand, by decision dated May 1, 2002, OWCP granted appellant a schedule award for 

an additional 17 percent permanent impairment of the right lower extremity.5 Appellant appealed 

to the Board. By decision dated July 21, 2003, the Board affirmed the May 1, 2002 decision as 

modified to reflect that he had a total right lower extremity impairment of 27 percent.6

By decision dated October 6, 2003, OWCP granted appellant a schedule award for an 

additional 8 percent permanent impairment of the right lower extremity, for a total right lower 

extremity impairment of 27 percent.

On March 22, 2012 appellant underwent bilateral total knee replacements.

 

3 5 U.S.C. § 8101 et seq.

4 Docket No. 03-0817 (issued July 22, 2003).

5 By decision dated May 22, 2002, OWCP reduced appellant’s compensation to zero based on its determination 

that his actual earnings as a modified letter carrier, effective May 8, 2002, fairly and reasonably represented his wageearning capacity.

6 See supra note 4. 
3

In a report dated January 10, 2014, Dr. Arthur Becan, an orthopedic surgeon, noted that 

appellant had a history of employment injuries in 1993 and 1998. Referencing the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides), he found 25 percent permanent impairment of each lower extremity due to his bilateral 

total knee arthroplasties.

On August 12, 2014 appellant filed a claim for an increased schedule award.

By decision dated May 15, 2015, OWCP denied appellant’s request for an increased

schedule award. It found that the medical evidence failed to establish more than the previously 

awarded 27 percent permanent impairment of the right lower extremity. OWCP advised that it 

had not accepted the claim for a left knee condition.

On May 21, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative.

By decision dated March 4, 2016, OWCP’s hearing representative affirmed the May 15, 

2015 decision. He noted that appellant had a separate claim for a left knee condition from a 1998 

employment injury, assigned OWCP File No. xxxxxx327, and had pursued a schedule award claim 

under that file number. OWCP’s hearing representative found that he was attempting to adjudicate 

a left knee impairment under two separate file numbers. He determined that appellant had no more 

than the previously awarded 27 percent right lower extremity impairment.

In a report dated March 3, 2017, Dr. Becan indicated that appellant had injured his right 

knee on November 4, 1993 and in 1998. He related that, as a result of “altered body mechanics, 

[he] developed a derivative injury to his left knee which necessitated a left total knee arthroplasty 

on March 22, 2012.” Dr. Becan attributed appellant’s left knee condition to his right knee injuries.

On March 3, 2017 appellant, through counsel, requested reconsideration. He asserted that

Dr. Becan, in his March 3, 2017 supplemental report, attributed his left knee condition related to 

his right knee injury and that he was thus entitled to a schedule award for the left knee under the 

current claim. 

By decision dated May 30, 2017, OWCP denied modification of its March 4, 2016 

decision. It found that Dr. Becan’s March 3, 2017 report was of diminished probative value as he 

failed to describe how altered body mechanics resulted in a consequential left knee injury that 

required a left total knee arthroplasty.

On May 30, 2018 appellant, through counsel, requested reconsideration. He contended 

that OWCP used the wrong standard in evaluating the evidence. Counsel further contended that

Dr. Becan had explained in his March 3, 2017 report how appellant sustained a consequential left 

knee condition from the accepted right knee injury.

By decision dated August 28, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim under 5 U.S.C. § 8128(a).
4

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 payment of compensation at any time on his own motion or on application.7

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 

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.8

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

of OWCP decision for which review is sought.9 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.10 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.11

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).

By decision dated May 30, 2017, OWCP found that appellant had not met his burden of 

proof to establish a consequential left knee condition entitling him to a schedule award as a result 

of his November 5, 1993 employment injury. On May 30, 2018 appellant requested 

reconsideration. The underlying issue on reconsideration is the medical question of causal 

relationship. Thus, the Board must determine whether appellant presented sufficient evidence or 

argument regarding causal relationship to warrant a merit review pursuant to 5 U.S.C. § 8128(a).12

The Board finds that appellant has not alleged or demonstrated that OWCP erroneously 

applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant 

legal argument not previously considered. On reconsideration appellant, through counsel, 

generally asserted that OWCP used an improper standard in evaluating the evidence. He further 

 

7 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

9

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.

10 Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).

11 Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

12 S.W., Docket No. 18-1261 (issued February 22, 2019).
5

alleged that Dr. Becan’s report was sufficient to meet his burden of proof to establish a 

consequential left knee condition entitling him to a schedule award. However, appellant failed to 

raise any specific error by OWCP in its evaluation of the medical evidence or provide any support 

for his allegations. Thus, the Board finds that he has not advanced a relevant legal argument not 

previously considered by OWCP.13 Consequently, 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).14

The Board further finds that appellant has not provided any relevant and pertinent new 

evidence not previously considered. As he did not provide relevant and pertinent new evidence, 

appellant is not entitled to a merit review based on the third requirement under section 

10.606(b)(3).15

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.16

On appeal counsel asserts his previous claims that the medical evidence established that 

appellant sustained a consequential left knee condition and was, thus, entitled to a schedule award 

for his left knee arthroplasty. As discussed, however, the evidence appellant submitted on 

reconsideration has not met the requirements to reopen his case for a review of the merits of the 

claim.17

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).

 

13 P.W., Docket No. 17-1911 (issued June 6, 2018).

14 C.B., Docket No. 18-1108 (issued January 22, 2019).

15 R.L., Docket No. 18-0175 (issued September 5, 2018).

16 See L.A., Docket No. 18-1226 (issued December 28, 2018) (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).

17 See J.V., Docket No. 18-1534 (issued February 25, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 15, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board