United States Department of Labor

Employees’ Compensation Appeals Board

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R.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Clarita, CA, Employer

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Docket No. 18-1263

Issued: February 7, 2019

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 June 8, 2018 appellant filed a timely appeal from a January 12, 2018 nonmerit decision 

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

OWCP’s last merit decision, dated August 23, 2017, 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 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

On June 1, 2017 appellant, then a 52-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed medical conditions of his feet and left ankle due to 

 

1 5 U.S.C. § 8101 et seq.
2

standing and walking while carrying a mail satchel weighing between 15 to 45 pounds for eight 

hours a day while in the performance of duty.2

By development letter dated June 8, 2017, OWCP requested that appellant provide factual 

and medical evidence in support of his occupational disease claim. It afforded him 30 days to 

submit the requested information.

On April 24, 2017 Dr. Seong M. Yoo, a podiatrist, completed a report and noted that he 

first examined appellant in January 2013 due to foot and ankle pain. He provided the results of 

magnetic resonance imaging (MRI) scans of appellant’s ankles dated August 23, 2016. On the 

right, the scan demonstrated metatarsophalangeal (MTP) degenerative changes with joint effusion, 

bursitis, chronic pressure lesion to the fifth MTP joint, and tarsometatarsal joint degenerative 

changes without acute fracture or dislocation. On the left, the scan demonstrated first MTP 

degenerative changes with joint effusion, bursitis, chronic pressure lesion on the fifth MTP joint, 

and tarsometatarsal joint degenerative changes without acute fracture or dislocation. Dr. Yoo 

opined that appellant’s conditions were directly related to his work, noting that appellant was 

required to walk all day as a function of his job duties. He concluded, “It is my opinion that 

regardless of when the initial time of complaint for his foot and ankles started, his job duties for

the [employing establishment] has slowly contributed to the progressive nature of his conditions 

over the past few years.”

By decision dated August 23, 2017, OWCP denied appellant’s occupational disease claim.

It found that he had not submitted medical evidence containing a diagnosis in connection with the 

accepted employment factors.

On October 25, 2017 appellant requested reconsideration of the merits of his claim. He 

provided a report dated September 23, 2017 from Dr. Yoo which included the results from the 

August 23, 2016 MRI scans of appellant’s bilateral ankles. Dr. Yoo also opined that appellant’s 

conditions of arthritis to the foot and ankle, degenerative tear of the plantar plate, and bursitis of 

the left forefoot were directly related to his work. He again determined that appellant’s job duties 

had contributed to the progressive nature of his conditions.

By decision dated January 12, 2018, OWCP denied appellant’s request for reconsideration

of the merits of his claim.

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.3 

Section 8128(a) of FECA4 vests OWCP with discretionary authority to determine whether to 

review an award for or against compensation. OWCP may review an award for or against payment 

 

2 Appellant has filed eight additional claims with OWCP which are not before the Board at this time.

3 20 C.F.R. § 10.607(a).

4 5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application.
3

of compensation at any time on its own motion or on application by a claimant.

5

 To require OWCP 

to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or 

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.6 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.

7

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.8 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.10

ANALYSIS

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

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

Appellant’s request for reconsideration did not show that OWCP erroneously applied or 

interpreted a specific point of law, or advance a new and relevant legal argument not previously 

considered by OWCP. Consequently, he was not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). Appellant did, 

however, submit relevant and pertinent new evidence not previously considered.11

In support of his request for reconsideration, appellant submitted a new medical report from

Dr. Yoo. In his report dated September 23, 2017, although substantially similar to his April 24, 

2017 report previously of record, Dr. Yoo added the diagnosed conditions of arthritis of the foot 

and ankle, degenerative tear of the plantar plate, and bursitis of the left forefoot. He further opined 

that these conditions were directly related to appellant’s employment duties. Prior to the 

submission of the September 23, 2017 report, appellant had not provided medical evidence 

including a definite diagnosis. Dr. Yoo’s new report directly addressed the basis upon which 

 

5

Id.; L.S., Docket No. 18-0811 (issued November 13, 2018).

6 20 C.F.R. § 10.606(b)(3); see also L.S., id.

7

Id. at § 10.608(b).

8

J.F., Docket No. 17-1508 (issued March 28, 2018).

9 See supra note 3. See also L.S., supra note 5; Mark H. Dever, 53 ECAB 710 (2002).

10 L.S., supra note 5; Annette Louise, 54 ECAB 783 (2003).

11 K.S., Docket No. 18-1022 (issued October 24, 2018).
4

OWCP denied appellant’s claim as it provided a diagnosed condition and discussed its relationship 

to appellant’s employment.12

The Board thus finds that OWCP improperly refused to reopen appellant’s case for further 

review of the merits, as the evidence he submitted, in support of his reconsideration request, is 

relevant and pertinent new evidence not previously considered.13 Reopening a claim for merit 

review does not require a claimant to submit all evidence that may be necessary to discharge his

or her burden of proof.14 If OWCP should determine that the new evidence submitted lacks 

probative value, it may deny modification of the prior decision, but only after the case has been 

reviewed on the merits.15

As appellant has submitted relevant and pertinent new evidence not previously considered 

by OWCP, he is entitled to a review of the merits of his claim under section 10.606(b)(3) of 

OWCP’s regulations.16 The case will be remanded to OWCP to conduct an appropriate merit 

review of the claim. Following this and such other development as deemed necessary, it shall 

issue an appropriate merit decision on the claim.

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

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

 

12 Id.; M.C., Docket No. 17-1983 (issued August 17, 2018).

13 Supra note 6; M.C., id.

14 M.C., supra note 12.

15 Id.

16 Id.
5

ORDER

IT IS HEREBY ORDERED THAT the January 12, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: February 7, 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