United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer

__________________________________________

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Docket No. 18-0164

Issued: May 23, 2018

Appearances: Case Submitted on the Record

Victor A. Walker, Esq., for the appellant1

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 October 30, 2017 appellant, through counsel, filed a timely appeal from an August 18, 

2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from OWCP’s last merit decision, dated July 1, 2016, to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction to review the merits of this case.3 

 

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 5 U.S.C. § 8101 et seq.

3 20 C.F.R. § 501.3(e). 
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

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

FACTUAL HISTORY

On July 9, 2015 appellant, then a 50-year-old retired manual clerk and automation operator, 

filed an occupational disease claim alleging that she developed bilateral carpal tunnel syndrome 

(CTS) as a result of her repetitive employment duties. She reported that she first became aware of 

her condition on July 25, 2013 and of its relationship to her federal employment on April 15, 2015. 

Appellant first received medical care for her condition on April 16, 2015. On the reverse side of 

the claim form, the employing establishment reported that she retired on disability as of March 26, 

2001 and first notified her supervisor of the claim on August 11, 2015. 

In a June 16, 2015 narrative statement, appellant reported her date of injury as April 14, 

2015, the date that her physician diagnosed her with bilateral CTS. She noted that her condition 

developed over years of working for the employing establishment and was aggravated over time. 

Appellant reported that she first began having problems with her hands on July 25, 2013, but was 

not conclusively diagnosed with bilateral CTS until April 15, 2015. Her physician informed her 

that her bilateral CTS was related to her repetitive work activities at the employing establishment. 

Appellant described her repetitive employment duties as a letter sorter machine operator which 

involved pushing and pulling heavy containers weighing approximately 600 pounds, using her 

hands to remove trays from letter cages, dropping mail on the ledge, pulling mail down from 

reaching overhead, and pulling trays down. She also described her employment duties as a clerk 

which involved casing mail, moving containers, grasping handfuls of mail and magazines, 

bundling mail, filling trays, pushing and pulling cages, throwing bundles of magazines in zip code 

bins weighing 15 to 25 pounds, and picking up and throwing sacks weighing in excess of 120 

pounds. Appellant reported that she worked for the employing establishment for about 13 years 

and the repetitive use of her hands, wrists, arms, and fingers caused her condition to develop over 

time. She submitted an official position description for a distribution clerk in support of her claim. 

A March 26, 2001 notification of personnel action indicated that appellant’s last day in 

active pay status was March 15, 1999, signifying disability retirement with the Office of Personnel 

Management (OPM). 

In an April 16, 2015 diagnostic report, Dr. Walter E. Afield, a Board-certified neurologist, 

reported that a nerve conduction velocity (NCV) study of the upper extremities revealed abnormal 

findings of delayed peak latency readings involving both the median sensory nerves. He reported 

that findings were suggestive of bilateral carpal tunnel syndrome. 

By development letter dated August 17, 2015, OWCP advised appellant that the evidence 

submitted was insufficient to establish her claim. It informed her of the type of medical and factual 

evidence needed and also advised her that the evidence was insufficient to establish that she timely 

filed her claim. OWCP provided a development questionnaire for her completion and requested 

that she submit such evidence within 30 days. In another letter dated August 17, 2015, it requested 
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the employing establishment provide information pertaining to appellant’s occupational disease 

claim and employment duties. Neither appellant nor the employing establishment responded. 

By decision dated September 24, 2015, OWCP denied appellant’s claim finding that it was 

untimely filed. It advised her that the date of last exposure was March 15, 1999, the date she 

retired from the employing establishment and was last exposed to the work factors alleged to have 

caused her condition. OWCP further reported that the case was reviewed to see if the employing 

establishment was given notice within 30 days of the injury or within 30 days of the last date of 

exposure on March 15, 1999. However, no confirmation was provided by the employing 

establishment. 

On April 12, 2016 appellant requested reconsideration of OWCP’s decision. In an 

accompanying narrative statement, she reported that she stopped working for the employing 

establishment on March 15, 1999. Appellant noted that she notified OWCP and the employing 

establishment of her injury as soon as Dr. Scott diagnosed her with carpal tunnel syndrome around 

June 25, 2015. 

By decision dated July 1, 2016, OWCP denied modification of its September 24, 2015 

decision, finding that appellant’s occupational disease claim was untimely filed. It noted that she 

stopped work on March 15, 1999 and retired on March 26, 2001. Therefore, appellant had until 

March 15, 2002 or March 26, 2004 to timely file an occupational disease claim.

On June 23, 2017 appellant, through counsel, requested reconsideration of OWCP’s July 1, 

2016 decision. Counsel argued that OWCP erroneously interpreted a point of law. He noted that 

OWCP did not dispute that appellant filed an occupational disease claim on July 9, 2015, nor did 

it dispute that she first because aware of her injury on July 25, 2013 and of its relationship to her 

federal employment on April 15, 2015. Appellant argued that OWCP erroneously interpreted the 

law by finding that the three-year time limitation began on March 15, 1999, the date she was last 

exposed to the injurious working conditions. Counsel reported that appellant was not aware of her 

injury at that time, and was also not aware of her injury when she retired on March 26, 2001. 

Appellant reported that she first became aware of her injury on July 25, 2013 and of its relationship 

to her employment on April 15, 2015, both of which were within the three-year time limitation to 

file her claim. Counsel argued that OWCP should have relied on case law which provides that in 

cases involving an occupational illness, the time limitation does not begin to run until the claimant 

is aware, or reasonably should have been aware of the causal relationship between her employment 

and the compensable disability. 

By decision dated August 18, 2017, OWCP denied appellant’s request for reconsideration,

finding that she neither raised substantive legal questions, nor included relevant and pertinent new

evidence sufficient to warrant a merit review. It noted that counsel’s arguments were duplicative 

and substantially similar to evidence or documentation already of file.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under FECA section 8128(a), 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 
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argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations provide 

that 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.5

The issue of whether a claim was timely filed is a preliminary jurisdictional issue that 

precedes any determination on the merits of the claim.6 In cases of injury on or after September 7, 

1974, section 8122(a) of FECA provides that an original claim for compensation for disability or 

death must be filed within three years after the injury or death.7 Section 8122(b) provides that, in 

latent disability cases, the time limitation does not begin to run until the claimant is aware, or by 

the exercise of reasonable diligence should have been aware, of the causal relationship between 

the employment and the compensable disability.8 The Board has held that, if an employee 

continues to be exposed to injurious working conditions after such awareness, the time limitation 

begins to run on the last date of this exposure.9 Even if a claim is not filed within the three-year 

period of limitation, it would still be regarded as timely under section 8122(a)(1) if the immediate 

superior had actual knowledge of his or her alleged employment-related injury within 30 days or 

written notice of the injury was provided within 30 days pursuant to section 8119.10 The 

knowledge must be such as to put the immediate superior reasonably on notice of an on-the-job 

injury or death.11 

ANALYSIS

The Board finds that this case is not in posture for decision.12

In its August 18, 2017 denial of appellant’s reconsideration request, OWCP noted that 

counsel’s arguments were cumulative and substantially similar to allegations previously 

considered. Thus, it denied merit review of appellant’s claim finding that she failed to submit any

 

4 D.K., 59 ECAB 141 (2007).

5 K.H., 59 ECAB 495 (2008). 

6 C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 (2004); Mitchell Murray, 53 ECAB 601 (2002). 

7 W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB 515 (2001). 

8 5 U.S.C. § 8122(b).

9 See Linda J. Reeves, 48 ECAB 373 (1997).

10 5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

11 Willis E. Bailey, 49 ECAB 511 (1998); B.H., Docket No. 15-0970 (issued August 17, 2015).

12 J.W., Docket No. 13-1666 (issued August 18, 2014).
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relevant and pertinent new evidence addressing whether her occupational disease claim was timely 

filed.

13

 

The underlying issue in this case is whether the claim was timely filed. 

Counsel’s June 23, 2017 request for reconsideration argued that appellant’s claim was 

timely filed as she was not aware of her condition until July 25, 2013 and of its relationship to her 

federal employment on April 15, 2015, citing Board case law in support of his assertion that 

OWCP did not apply the correct standard when denying appellant’s claim. OWCP denied the 

claim because appellant was last exposed to her employment exposure alleged to have caused 

injury on March 15, 1999, and failed to submit sufficient evidence that her supervisor had actual 

knowledge of her injury within 30 days of the date of injury or within 30 days of her retirement on 

March 26, 2001. It did not consider, however, when appellant was aware or should have been

aware, of the causal relationship between the employment and the compensable disability. 

Therefore, the Board finds that counsel’s argument raised on reconsideration was a relevant legal 

argument which was not previously considered. As such, OWCP’s refusal to reopen appellant’s 

case for further consideration of the merits of her claim constituted an abuse of discretion.14

For these reasons, the Board will set aside OWCP’s August 18, 2017 decision and remand 

the case for merit review. After such further development as necessary, OWCP shall issue an 

appropriate decision.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

13 M.H., Docket No. 13-2051 (issued February 21, 2014).

14 L.N., Docket No. 12-1326 (issued November 21, 2012).
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ORDER

IT IS HEREBY ORDERED THAT the August 18, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further proceedings 

consistent with this opinion.

Issued: May 23, 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