United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B, Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Sacramento, CA, Employer 

__________________________________________ 

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Docket No. 17-0934 

Issued: September 1, 2017 

Appearances: Case Submitted on the Record

George A. Hunlock, 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 March 27, 2017 appellant, through counsel, filed a timely application for review from 

a September 28, 2016 decision of the Office of Workers’ Compensation Programs (OWCP). 

Because more than 180 days elapsed from July 9, 2015, the date of the most recent merit 

decision, 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 

appellant’s claim. 

 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. 
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 April 23, 2011 appellant, then a 63-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained a left knee injury as a result of 

pushing a suitcase into a tunnel and twisting her knee. OWCP accepted her claim for left knee 

tendinitis on July 20, 2011. 

On March 25, 2013 OWCP directed appellant to a second opinion examination with 

Dr. Daniel S. Farnum, a Board-certified orthopedic surgeon, in order to determine whether she 

continued to have physical limitations resulting from her work-related disability. 

On March 31, 2013 appellant voluntarily retired from her position as a transportation 

security officer. 

In a report dated April 19, 2013, Dr. Farnum examined appellant and reviewed her 

medical records. He diagnosed degenerative arthritis of the left knee with lateral and medial 

meniscal tears. Dr. Farnum noted that appellant continued to have residuals of her injury and 

recommended work restrictions of intermittent standing and walking for no more than two hours 

per day; intermittent sitting for no more than six hours per day; operating machinery for no more 

than two hours per day; and no bending/stooping, twisting, pushing/pulling, or lifting. In a 

follow-up report dated July 23, 2013, he explained that the objective basis for her work 

restrictions were the extensive degenerative process of her left knee. 

On August 16, 2013 OWCP accepted the additional conditions of left patellar tendinitis; 

permanent aggravations of tears of the medial and lateral meniscus of the left knee; and 

permanent aggravation of arthropathy of the left knee. Appellant received compensation benefits 

on the supplemental rolls as of May 17, 2013 and on the periodic rolls as of August 25, 2013. 

In a functional capacity evaluation (FCE) dated September 9, 2013, a physical therapist 

recommended work restrictions of standing occasionally no more than 30 minutes continuously; 

walking occasionally no more than 10 minutes continuously; climbing less than 1 percent of the 

time; bending occasionally no more than 30 repetitions continuously; pushing no more than 24 

pounds; pulling no more than 29 pounds; light lifting of no more than 15 pounds; frequent 

sitting, power grasping, and reaching; and no squatting or kneeling. In a letter dated October 29, 

2013, Dr. Chia Chen, Board-certified in family medicine, noted that she concurred with the 

September 9, 2013 FCE. 

From August 16, 2013 through September 8, 2014, appellant participated in a vocational 

rehabilitation program. In a closure memorandum, a rehabilitation specialist noted that her 

targeted positions included information clerk and receptionist. 

On December 9, 2014 OWCP proposed to reduce appellant’s compensation for wage loss 

due to her ability to work as a receptionist. It noted that she had not secured employment as a 
3

receptionist after placement for employment had ended under the vocational rehabilitation 

program, and referred to Dr. Chen’s October 29, 2013 letter in which she concurred with the 

work restrictions outlined in the FCE. OWCP stated that the position of receptionist met 

appellant’s physical requirements as outlined in the FCE because it fell into the sedentary work 

category. Appellant was afforded 30 days to submit additional medical evidence. 

In a report dated December 4, 2014, Dr. Chen recommended that appellant intermittently 

stand, walk, sit, grasp/engage in fine manipulation, or operate machinery for no more than two 

hours per day; continuously reach above the shoulder for no more than two hours per day; and no 

kneeling, bending/stooping, twisting, pushing/pulling, or lifting. 

By decision dated January 13, 2015, OWCP finalized its reduction of appellant’s 

compensation due to her ability to earn wages as a receptionist. Department of Labor, 

Dictionary of Occupational Titles #237.367-038. It found that the weight of medical evidence, 

including her medical restrictions, rested with Dr. Farnum’s report of April 19, 2013. This 

decision also found that the rehabilitation counselor had documented that the position remained 

vocationally suitable in relation to appellant’s age, education, and experience, and that 

receptionist positions were reasonably available in her commuting area with weekly wages of 

$360.00. OWCP advised that the decision did not affect her medical benefits. 

On February 6, 2015 appellant, through counsel, requested a review of the written record 

by an OWCP hearing representative. The request included arguments that her condition was not 

preexisting; that OWCP erroneously assigned the weight of the medical evidence to Dr. Farnum; 

that appellant was forced to retire, rather than voluntarily retiring; and that appellant was not 

reasonably able to obtain work. 

By decision dated July 9, 2015, OWCP’s hearing representative affirmed the January 13, 

2015 decision to reduce appellant’s benefits. It found that appellant had not established that the 

loss of wage-earning capacity (LWEC) determination should be modified as Dr. Chen’s 

December 4, 2014 statement of work restrictions did not suffice to explain why she was 

incapable of working as a receptionist. The hearing representative further noted that she had not 

provided any evidence that scarcity of jobs in her area meant that she had no employment 

prospects. He also noted that appellant’s argument that her retirement was not voluntary had no 

bearing on the issue of her wage-earning capacity. The hearing representative concluded that no 

evidence had been received which supported the arguments that OWCP’s January 13, 2015 

LWEC determination was erroneous with respect to medical suitability, vocational suitability, or 

geographic availability. 

On July 6, 2016 appellant requested reconsideration of OWCP’s July 9, 2015 decision. 

With her request, she attached a letter, arguing that the original decision failed to correctly 

evaluate the medical evidence, that the decision was erroneous because it failed to adequately 

and accurately assess the job market in appellant’s geographic area, that the LWEC decision 

should be modified because there had been a material change in the nature and extent of 

appellant’s injury-related condition, and that OWCP had failed to provide sufficient medical 

treatment or evaluation. 
4

By decision dated September 28, 2016, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of her case. It found that she had only submitted a 

letter containing various arguments on reconsideration, and that those arguments were repetitious 

of arguments previously considered by OWCP. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under 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 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s 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.4

ANALYSIS 

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

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

OWCP issued a January 13, 2015 decision reducing appellant’s compensation due to her 

ability to work as a receptionist. By decision dated July 9, 2015, OWCP’s hearing representative 

affirmed the January 13, 2015 decision and found that appellant had not established that the 

January 13, 2015 LWEC determination should be modified. On July 6, 2016 appellant requested 

reconsideration of OWCP’s July 9, 2015 decision. 

The issue is whether the argument and evidence appellant submitted in support of her 

request for reconsideration is sufficient to warrant further merit review pursuant to 20 C.F.R. 

§ 10.606(b)(3). The Board finds that she did not show that OWCP erroneously applied or 

interpreted a specific point of law and did not submit relevant and pertinent new evidence. 

Therefore, the Board finds that OWCP properly determined that appellant was not entitled to 

further review of the merits.5

With her request, appellant attached a letter, arguing that the original decision failed to 

correctly evaluate the medical evidence, that the decision was erroneous because it failed to 

 3

 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 

4 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

5 B.P. Docket No. 12-0104 (issued December 13, 2012). The Board affirmed the denial of reconsideration 

pursuant to 5 U.S.C. § 8128(a) as appellant did not submit any new evidence or legal argument to support her 

allegation that her LWEC determination should be modified. In P.G., Docket No. 13-0475 (issued May 17, 2013) 

however the Board found that appellant’s request for reconsideration, which provided a new legal argument, 

constituted a request for modification of OWCP’s LWEC determination. Appellant’s request for modification of the 

LWEC was not properly evaluated as a request for reconsideration under 5 U.S.C. § 8128(a) as appellant had 

presented a new legal argument for modification of October 20, 1994 LWEC determination. 
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adequately and accurately assess the job market in appellant’s geographic area, that the LWEC 

decision should be modified because there had been a material change in the nature and extent of 

appellant’s injury-related condition, and that OWCP had failed to provide sufficient medical 

treatment or evaluation. 

The Board finds that the arguments contained in appellant’s reconsideration request had 

already been considered by OWCP in its decision of July 9, 2015. OWCP had previously 

considered the medical evidence in the July 9, 2015 and prior decisions. It had responded to 

appellant’s argument regarding a scarcity of jobs in her area in its July 9, 2015 decision. As 

these arguments were previously considered and rejected by OWCP, they are cumulative and 

duplicative in nature and therefore are insufficient to warrant a merit review.6 

Appellant also provided no medical evidence of a material change in the nature and 

extent of her injury-related condition. Furthermore, no evidence was provided in support of her 

arguments that OWCP had failed to provide sufficient medical treatment or evaluation. While 

appellant’s wage-loss compensation benefits were reduced to reflect her wage-earning capacity, 

her entitlement to medical benefits was not terminated and medical care remained available. 

Appellant did not submit any pertinent new and relevant evidence not previously 

reviewed by OWCP. The sole document submitted on reconsideration consisted of legal 

arguments previously considered by OWCP. 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

Appellant may request modification of the wage-earning capacity determination 

supported by new evidence or argument, at any time before OWCP. 

CONCLUSION 

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

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

 6 Id. B.P., Docket No. 12-0104 (issued December 13, 2012). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 28, 2016 is affirmed. 

Issued: September 1, 2017 

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