United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Monica, CA, Employer 

__________________________________________ 

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Docket No. 16-0572 

Issued: June 16, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 February 2, 2016 appellant filed a timely appeal from a January 15, 2016 nonmerit 

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

has elapsed since the last merit decision dated December 9, 2014 to the date of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

 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 merit review of his claim under 5 U.S.C. 

§ 8128(a). 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 53-year-old mail handler, filed an occupational disease claim (Form CA-2) 

on August 12, 2014, alleging that he sustained a bilateral knee condition causally related to 

employment factors. 

On October 2, 2014 OWCP advised appellant that it required factual and medical 

evidence in support of his claim for compensation benefits. It instructed him to submit a 

comprehensive report from a treating physician describing his symptoms and the medical reasons 

for his condition, with an opinion as to whether his claimed condition was causally related to his 

federal employment. OWCP afforded appellant 30 days to submit this evidence. 

In an October 28, 2014 report, Dr. I. Grant Orlin, a specialist in occupational medicine, 

advised that appellant had complaints of bilateral knee pain. He related that appellant believed 

that his knee injuries had inhibited his ability to perform basic domestic chores and engage in 

prolonged standing or walking. Appellant also experienced intermittent difficulty sleeping 

through the night due to throbbing in his knees. He underwent magnetic resonance imaging 

(MRI) scans of both knees on July 7, 2014. Dr. Orlin reported that the results of the left knee 

MRI scan showed degenerative tears of the posterior horn of the bilateral medial meniscus; full 

thickness articular cartilage loss; medial joint compatible with degenerative disease opposing 

articular surface; an oblique tear of the posterior horn of the lateral meniscus; degenerative tear 

of the anterior horn of the lateral meniscus; full thickness articular cartilage loss in the medial 

aspect and lateral joint; five millimeter full-thickness articular cartilage defect in mid-patella; and 

moderate joint effusion. The MRI scan of the right knee demonstrated comparable pathology: 

oblique tears of the posterior horn of medial meniscus and tears of the lateral meniscus, and fullthickness articular cartilage loss. Dr. Orlin concluded that the MRI scan of both knees 

demonstrated bilateral tri-compartmental degenerative joint disease, bilateral medial meniscus 

tears, and bilateral knee lateral meniscus tears. He noted that appellant had worked 30 years as a 

full-duty letter carrier with a park and loop route. Dr. Orlin advised that he had to repetitively 

jump in and out of his mail truck, go to different houses along the block, climb steps, walk on 

uneven ground, pivot, deliver mail, and case mail between two-sided cubicles. He noted that in 

addition, he had to lift up to 70 pounds of parcels and carry a satchel over his shoulder weighing 

as much as 35 pounds. Dr. Orlin also noted that for about 15 years appellant had a steep route 

which increased the stress on his knees because he had to walk up an incline. 

Dr. Orlin opined that appellant’s work activities over so many years, with significant 

weight-bearing, resulted in cumulative trauma and a progressive increase in degenerative 

changes and the development of significant osteoarthritis of both knees. He noted that this 

deterioration would not have occurred through the aging process alone. Dr. Orlin reasoned that 

appellant’s MRI scan findings of medial meniscus tears and bilateral lateral meniscus tears 

reflected conditions caused by appellant’s repetitive pivoting and torsioning during casing and 

deliver of mail. 

Dr. Orlin reported that appellant denied any other history of injuries and denied any 

history of hobbies, recreational, or sport activities other than jogging. He opined that there was 

more than a reasonable medical probability that appellant’s employment factors contributed to 

his condition as a result of cumulative trauma and that, as a result, his condition should be 
3

considered industrially related. Dr. Orlin advised that appellant’s treating physician had 

recommended that he consider knee replacement surgery. 

In order to determine whether appellant’s bilateral knee condition was causally related to 

factors of his federal employment, OWCP scheduled a second opinion examination with 

Dr. Richard Rogachefsky, Board-certified in orthopedic surgery. By letter dated November 6, 

2014, OWCP informed appellant that his examination with Dr. Rogachefsky would be held on 

December 3, 2014 at 2:15 p.m. The letter was mailed to appellant’s last known address, the 

address appellant provided to OWCP in his Form CA-2 claim for compensation, and to which all 

correspondence had been mailed. Appellant did not appear for the second opinion examination. 

By decision dated December 9, 2014, OWCP denied appellant’s claim finding that 

appellant failed to submit medical evidence establishing a bilateral knee condition causally 

related factors of his employment duties as a mail handler. 

Thereafter, OWCP received a December 11, 2014 form report from Dr. Orlin noting that 

appellant continued to have pain in both knees, with occasional swelling. He diagnosed 

cumulative trauma with bilateral degenerative joint disease, bilateral knee medical meniscus 

tears, and bilateral lateral meniscus tears. Dr. Orlin noted that appellant could return to modified 

duty on December 11, 2014, with the same restrictions previously provided. 

On January 21, 2015 appellant requested reconsideration. 

By decision dated June 30, 2015, OWCP denied appellant’s application for review as it 

neither raised substantive legal questions nor included pertinent and relevant new evidence 

sufficient to require OWCP to review its prior decision. 

On October 14, 2015 appellant requested reconsideration. 

In a November 18, 2015 report, Dr. Tony Liu, an osteopath and appellant’s treating 

physician, noting that appellant failed to attend the second opinion physician appointment with 

Dr. Rogachefsky because he never received the notice. Dr. Liu advised that OWCP’s records did 

not reflect a change of address or receipt that the letter was returned due to an incorrect address. 

The physician’s report claimed that appellant was willing to attend a second opinion physician if 

another appointment was made. 

By decision dated January 15, 2016, OWCP denied appellant’s application for review as 

it neither raised substantive legal questions nor included pertinent and relevant new evidence 

sufficient to require OWCP to review its prior decision. 

LEGAL PRECEDENT 

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

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.2

 Section 10.608(a) of OWCP’s regulations provide that a timely 

                                                             2

 5 U.S.C. § 8128(a). 
4

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).3 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

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

evidence not previously considered by OWCP.4 Section 10.608(b) provides that when a request 

for reconsideration is timely but fails to meet at least one of these three requirements, OWCP 

will deny the application for reconsideration without reopening the case for a review on the 

merits.5

ANALYSIS 

In the present case, appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law; nor has he advanced a relevant legal argument not previously 

considered by OWCP; or presented new evidence that is relevant and pertinent to the issue on 

appeal. 

The Board has held that the submission of evidence which does not address the particular 

issue involved in the case does not constitute a basis for reopening the claim.6

 Dr. Liu’s 

November 18, 2015 report merely asserts that appellant failed to attend a second opinion 

physician appointment with Dr. Rogachefsky because he never received notice of the 

appointment.7 The issue in this case is medical; i.e., whether he submitted probative, 

rationalized medical evidence sufficient to establish that his claimed bilateral knee condition was 

causally related to employment factors. OWCP explained that appellant had not met his burden 

of proof to establish his claim, because the medical evidence he submitted did not provide a 

rationalized opinion on the cause of the diagnosed conditions. Appellant’s benefits were not 

suspended because he did not attend the second opinion evaluation.8 

Appellant’s reconsideration request failed to show that OWCP erroneously applied or 

interpreted a point of law nor did it advance a relevant legal argument not previously considered 

by OWCP, nor did it constitute pertinent new and relevant evidence. 

                                                             3

 20 C.F.R. § 10.608(a). 

4 Id. at § 10.606(b)(3). 

5 Id. at § 10.608(b). 

6 See David J. McDonald, 50 ECAB 185 (1998). 

7

 Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a notice mailed to an 

individual in the ordinary course of business was received by that individual. See George F. Gidicsin, 36 ECAB 

175 (1984) (when OWCP sends a letter of notice to a claimant, it must be presumed, absent any other evidence, that 

the claimant received the notice). This presumption arises when it appears from the record that the notice was 

properly addressed and duly mailed. See Michelle Lagana, 52 ECAB 187 (2000). The appearance of a properly 

addressed copy in the case record, together with the mailing custom or practice of OWCP itself, will raise the 

presumption that the original was received by the addressee. See Larry L. Hill, 42 ECAB 596 (1991). 

8 See R.S., Docket No. 15-476 (issued February 19, 2016). 
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CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the January 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 16, 2016 

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