United States Department of Labor

Employees’ Compensation Appeals Board

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R.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Braintree, MA, Employer

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Docket No. 18-0945

Issued: April 3, 2019

Appearances: Case Submitted on the Record

Richard Heavey, Esq., for the appellant1

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 April 4, 2018 appellant, through counsel, filed a timely appeal from an October 25, 

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

than 180 days has elapsed from OWCP’s last merit decision, dated July 13, 2017, to the filing of

 

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

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 over the merits of this case.3

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 March 26, 2013 appellant, then a 61-year-old city carrier, filed an occupational disease 

claim (Form CA-2) for a bilateral knee condition that allegedly arose while in the performance of 

duty. After years of walking on even and uneven surfaces delivering mail, appellant allegedly 

experienced constant pain in both knees. He described his condition as right knee arthritis and left 

knee torn meniscus. Appellant first became aware of his condition and its relationship to his 

federal employment duties on February 22, 2012. 

A February 22, 2012 report noted bilateral knee x-rays revealed normally mineralized 

bones, no soft tissue abnormalities, and that the joint spaces were maintained. 

In an August 30, 2012 report, Dr. Geoffrey J. Van Flandern, a Board-certified orthopedic 

surgeon, diagnosed moderate bilateral knee osteoarthritis, medial compartment. He noted that 

appellant had been a letter carrier since 1987. In an October 26, 2012 follow-up report,

Dr. Van Flandern diagnosed bilateral medial meniscus tearing.

A magnetic resonance imaging (MRI) scan of both knees dated October 31, 2012 revealed 

a torn left medial meniscus and on the right there was no evidence of meniscus, cruciate, or 

collateral ligament tear. However, the right knee MRI scan showed a small knee effusion and mild 

patellar chondromalacia.

In follow-up treatment reports dated November 9, 2012, March 29 and July 26, 2013,

Dr. Van Flandern continued to diagnose left knee medial meniscus tear. He recommended that 

appellant perform regular duty effective March 29, 2013. In his July 26, 2013 report,

Dr. Van Flandern indicated that appellant’s left knee condition was work related. He continued to 

find appellant capable of performing full/regular-duty work. 

In a development letter dated July 9, 2013, OWCP requested that appellant submit 

additional evidence in support of his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. By separate letter of even date 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the October 25, 2017 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
3

OWCP also requested additional information from the employing establishment. It afforded both 

appellant and the employing establishment 30 days to respond.

By decision dated August 14, 2013, OWCP initially denied the claim because appellant 

had failed to establish fact of injury. It found that appellant had not responded to the development 

letter and; therefore, there was an insufficient factual basis for the claim. On September 3, 2013 

appellant requested reconsideration and submitted a statement in response to the development 

questionnaire.

By decision dated December 2, 2013, OWCP modified its prior decision and found that 

fact of injury had been established. However, appellant’s occupational disease claim remained 

denied because the medical evidence of record failed to establish causal relationship between 

appellant’s condition(s) and the accepted factors of his federal employment. On December 2, 2014 

counsel requested reconsideration.

By decision dated January 30, 2015, OWCP denied modification of its prior decision after 

reviewing the merits of appellant’s claim. 

On December 21, 2015 counsel requested reconsideration and asserted that the medical 

evidence of record was sufficient to establish causal relationship between the accepted factors of 

appellant’s federal employment and his bilateral knee conditions.

In a December 1, 2015 report, Dr. Byron V. Hartunian, a Board-certified orthopedic 

surgeon, diagnosed internal derangement of the left knee with torn medial meniscus and anterior 

cruciate ligament sprain, osteoarthritis of the left knee, internal derangement of the right knee with 

torn medial meniscus, and osteoarthritis of the right knee. He opined that appellant developed his 

knee conditions during the course of his federal employment. 

In a February 29, 2016 letter, OWCP notified appellant that it had evaluated the evidence 

submitted, but required missing medical evidence for further action to be taken on his request for 

reconsideration. It noted that Dr. Hartunian’s December 1, 2015 report referenced a report from

Dr. Van Flandern dated September 26, 2014 and a right knee MRI scan dated August 6, 2015, but 

neither document had been received. OWCP afforded appellant 15 days to submit the requested 

evidence. 

In response, appellant submitted Dr. Van Flandern’s September 26, 2014 report. 

Dr. Van Flandern opined that appellant “may be developing arthritic change that is in some fashion 

related to his extensive mail carrier work duties since 1987,” and further opined that appellant had 

“no direct mechanism or direct injury mechanism which would allow [him] to more directly and 

casually relate the ongoing knee problems to his job duties or his job responsibilities.”

An August 6, 2015 MRI scan of appellant’s right knee demonstrated blunting of the 

anterior horn and body of the medial meniscus, consistent with free-edge tear, and grade 1 medial 

collateral ligament (MCL) sprain.

By decision dated June 10, 2016, OWCP denied modification of its prior decision, finding 

that the medical evidence of record was insufficient to establish causal relationship.
4

On February 13, 2017 counsel requested reconsideration and reiterated his argument that 

the medical evidence established causal relationship.

In a December 12, 2016 report, Dr. John J. Tierney, a Board-certified orthopedic surgeon, 

opined that appellant’s duties of carrying satchels weighing 35 to 70 pounds and walking up to 

three to five miles per day is “a leading cause of the prevalence of lower extremity arthritis among 

letter carriers.”

By decision dated July 13, 2017, OWCP denied modification of its prior decision, finding 

that Dr. Tierney’s opinion was insufficiently rationalized to establish causal relationship and

merely expounded upon Dr. Hartunian’s opinion, which had previously been found to be 

insufficient to establish the claim.

On October 11, 2017 counsel requested reconsideration and submitted a brief reiterating 

his argument that the medical evidence of record was sufficient to establish causal relationship.

In a September 25, 2017 report, Dr. Tierney reiterated that, with a high degree of medical 

certainty that was corroborated by Dr. Van Flandern and Dr. Hartunian’s reports, appellant’s 

condition had a direct causal relationship to not only the injury that he sustained in 2012, but 

additional degradation due to the activities of his work.

By decision dated October 25, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of his claim.

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 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.6 

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.7 When a timely application for reconsideration does not meet at least one 

 

4 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).

5 20 C.F.R. § 10.607.

6

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.

7 20 C.F.R. § 10.606(b)(3).
5

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.8

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). 

Appellant’s October 11, 2017 request for reconsideration neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law. In support of his 

reconsideration request, appellant submitted a legal brief dated October 5, 2017 from his attorney 

who asserted that the medical evidence of record was sufficient to establish that the implicated 

employment factors were causally related to his diagnosed conditions of left knee medial meniscus 

tear and bilateral knee osteoarthritis. The Board finds that the submission of this argument did not 

require reopening appellant’s case for merit review because, in its decisions dated June 10, 2016 

and July 13, 2017, OWCP acknowledged the same argument supporting the prior two requests for 

reconsideration and found that the medical evidence was insufficient to establish causal 

relationship. The Board thus finds that appellant has not advanced 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 or second above-noted requirements under section 

10.606(b)(3).9

Appellant also failed to submit relevant and pertinent new evidence not previously 

considered by OWCP. Counsel submitted a September 25, 2017 report from Dr. Tierney who 

reiterated that with a high degree of medical certainty that was corroborated by Dr. Van Flandern’s

and Dr. Hartunian’s reports, that appellant’s condition had a direct causal relationship to not only 

the injury that he sustained in 2012, but additional degradation due to the activities of his work. 

The Board finds that submission of this report did not require reopening appellant’s case for merit 

review. As OWCP had denied appellant’s claim based on the lack of supportive medical evidence 

establishing causal relationship and because Dr. Tierney’s report repeats evidence already in the 

case record, it is cumulative and fails to constitute relevant and pertinent new evidence. Therefore, 

this evidence is insufficient to require OWCP to reopen appellant’s claim for consideration of the 

merits pursuant to the third criteria under section 10.606(b)(3).10

The Board finds that appellant has not met any of the three regulatory requirements under 

section 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit 

review.11

 

8

Id. at § 10.608(a), (b).

9

Id. at § 10.606(b)(3)(i) and (ii).

10 Id. at § 10.606(b)(3)(iii); see L.H., 59 ECAB 253, 256 (2007).

11 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).
6

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).

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 3, 2019

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