United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

New York, NY, Employer

__________________________________________

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Docket No. 17-1231

Issued: January 17, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 15, 2017 appellant, through counsel, filed a timely appeal from a December 21, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from the last merit decision, dated February 12, 2015, 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 the claim.

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).

 

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

On appeal counsel contends that OWCP failed to consider all of appellant’s conditions in 

terminating his wage-loss compensation and schedule award benefits for refusing an offer of 

suitable work in accordance with 5 U.S.C. § 8106(c)(2). He contends that appellant had a 

serious subsequently-arising cardiac condition requiring surgery and that OWCP did not properly 

consider this argument in denying appellant’s request for reconsideration on December 21, 2016.

FACTUAL HISTORY

On May 20, 2002 appellant, then a 49-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1), alleging that he sustained a right knee injury when pulling a postal 

conveyor out of his truck. He heard a pop in his right knee which developed swelling and pain. 

On July 8, 2002 OWCP accepted appellant’s claim for medial collateral ligament rupture of the 

right knee. Dr. Louis C. Rose, a Board-certified orthopedic surgeon, performed an arthroscopy 

of appellant’s right knee on September 26, 2002 and diagnosed partial tear of the medial 

meniscus, partial tear of the lateral meniscus, hypertrophic synovium, and chondral defect of the 

medial femoral condyle. On April 15, 2003 OWCP entered appellant on the periodic rolls.

Dr. Rose released appellant to return to part-time sedentary work on November 18, 2003.

Appellant returned to limited duty four hours a day on March 22, 2004.

Appellant filed a recurrence of disability (Form CA-2a) on April 27, 2005 and stopped 

work on May 2, 2005 due to his May 15, 2002 work injury. On April 30, 2005 Dr. Rose 

performed an authorized right total knee replacement. On June 15, 2005 OWCP accepted 

appellant’s claim for recurrence of total disability beginning April 30, 2005. Appellant returned 

to part-time work on December 14, 2005. He claimed recurrence of disability on March 14, 

2006 alleging he stopped work on March 9, 2006 due to his May 15, 2002 employment injury. 

Appellant indicated that he required additional right knee surgery. On March 9, 2006 Dr. Rose 

performed an arthroscopy with synovectomy and lysis of adhesion to all compartments on 

appellant’s right knee. On March 28, 2006 OWCP accepted appellant’s claimed recurrence of 

disability commencing March 9, 2006. Appellant returned to work on January 8, 2007 for four 

hours a day with restrictions. 

By decision dated February 14, 2008, OWCP found that appellant’s part-time limitedduty position represented his wage-earning capacity. On March 12, 2008 appellant requested an 

oral hearing from OWCP’s Branch of Hearings and Review. He testified at the oral hearing 

before an OWCP hearing representative on June 23, 2008. By decision dated August 5, 2008, 

OWCP’s hearing representative found that OWCP had properly determined appellant’s wageearning capacity based on his actual earnings.

Appellant filed a claim for recurrence of disability commencing November 17, 2010. He 

reported that light-duty work was no longer available on that date due to the National 

Reassessment Process. By decision dated August 5, 2011, OWCP denied appellant’s claim for 

compensation beginning December 17, 2010. Counsel requested reconsideration on 

July 26, 2012. On October 17, 2012 OWCP accepted appellant’s claim for a recurrence of total 

disability commencing December 17, 2010. In a separate decision dated October 17, 2012, it

accepted appellant’s claim for the additional conditions of tear of the lateral meniscus of the right 

knee and post-traumatic arthritis of the right knee. OWCP entered appellant on the periodic rolls 

on February 22, 2013.
3

In a letter dated March 8, 2013, OWCP referred appellant for a second opinion evaluation 

with Dr. Hormozan Aprin, a Board-certified orthopedic surgeon. In a report dated March 27, 

2013, Dr. Aprin reviewed appellant’s medical history including his diagnoses of diabetes, 

myocardial infarction on June 23, 2010 with five coronary artery stents, cervical spine fusion in 

1992, left shoulder rotator cuff repair in 2000 and right knee arthroscopy in 1975. He found that 

appellant’s coronary condition did not prevent him from gainful employment and provided a 

completed work capacity evaluation (OWCP-5) with restrictions on walking, standing, bending, 

stooping, pushing, pulling, lifting and climbing for two hours intermittently each. Dr. Aprin 

found that appellant could not operate a motor vehicle at work, squat, or kneel. He provided a 

lifting, pushing, and pulling restriction of 10 to 20 pounds.

On May 30, 2013 the employing establishment offered appellant a limited-duty position 

as a customer care agent. Dr. Aprin reviewed this position on August 5, 2013 and opined that 

appellant could perform this sedentary position.

Dr. Rose completed a report on August 27, 2013 and indicated that appellant was totally 

disabled from work.

The employing establishment offered appellant a modified mail processing clerk position 

on September 23, 2013, working four hours a day with restrictions on walking and standing no 

more than two hours a day intermittently, pushing, pulling, and lifting 10 to 20 pounds 

intermittently for two hours a day, climbing intermittently for two hours a day, and bending and 

stooping for two hours a day intermittently. Appellant was not required to operate a motor 

vehicle at work, squat, or kneel.

In a letter dated October 9, 2013, OWCP informed appellant that the employing 

establishment had provided him with a suitable work position and afforded him 30 days to accept 

the position or to provide a reasonable acceptable reason for refusing the offer. Appellant did 

not respond.3

By decision dated December 9, 2013, OWCP terminated appellant’s wage-loss 

compensation and entitlement to schedule award benefits, effective December 15, 2013 due to 

his refusal of suitable work in accordance with 5 U.S.C. § 8106(c)(2). 

On November 18, 2014 counsel requested reconsideration of the December 9, 2013 

decision. He contended that appellant was not capable of performing the designated suitable 

position due to a nonwork-related serious heart condition requiring surgery. Counsel asserted

that appellant was not capable of performing the duties of the offered position “at all times 

relevant herein.” In support of this request, he submitted medical records. Appellant was 

hospitalized on August 4, 2013 for his cardiac condition. On August 5, 2013 he underwent a 

cardiac catheterization. Dr. Ricardo Bello, a Board-certified thoracic cardiovascular surgeon, 

performed surgery on August 12, 2013 diagnosing coronary artery disease, severe mitral 

regurgitation, hypertension, hypercholesterolemia, diabetes with peripheral neuropathy, 

nephrolithiasis, and osteoarthritis. He performed a triple coronary bypass and mitral valve 

repair. Appellant was discharged from the hospital on August 19, 2013. On September 11, 2013

 

3 On November 20, 2013 OWCP suspended appellant’s wage-loss compensation effective November 17, 2013 as 

he failed to complete the requested October 2, 2013 Form CA-1032.
4

Dr. Bello indicated that appellant could perform no heavy lifting for six weeks following his 

August 12, 2013 surgery.

By decision dated February 12, 2015, OWCP denied modification of its prior decisions 

finding that appellant had not established that the offered position was not suitable based on his 

cardiac condition and the resulting hospitalization.

Counsel requested reconsideration of the February 12, 2015 decision on February 10, 

2016 and contended that the medical evidence of record established that appellant was unable to 

perform the duties of the offered position due to a serious nonwork-related heart condition 

requiring surgery and was hospitalized from August 4 through 19, 2013 due to this condition. 

He again requested reconsideration on September 23, 2016 and alleged that OWCP had failed to 

issue a decision on the February 10, 2016 request for reconsideration within 90 days in keeping 

with its procedures.

By decision dated December 21, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of his claim. It found that appellant’s request for reconsideration 

neither raised substantive legal questions, nor included new and relevant evidence and was 

insufficient to warrant a review of the February 12, 2015 merit decision. OWCP also indicated

that it was not required to conduct a merit review of appellant’s claim, despite the delay in 

issuing a reconsideration decision, as the 180-day period for filing an appeal with the Board 

expired before appellant filed his request for reconsideration with OWCP. 

LEGAL PRECEDENT

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.4 

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain 

review of the merits of the claim by submitting in writing an application for reconsideration 

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.5 

Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is 

timely, but does meet at least one of these three requirements, OWCP will deny the application 

for review without reopening the case for a review on the merits.6 Section 10.607(a) of OWCP’s 

regulations provides that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.7

 

4 5 U.S.C. §§ 8101-8193, 8128(a).

5 20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608.

7

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 2.1602.4 

(February 2016).
5

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).

OWCP terminated appellant’s wage-loss compensation and entitlement to schedule 

award benefits effective December 15, 2013 due to his refusal of suitable work in accordance 

with 5 U.S.C. § 8106(c)(2). On February 10, 2016 appellant, through counsel, requested 

reconsideration of the February 12, 2015 merit decision denying modification of the termination 

and again contended that the medical evidence in the record established that appellant was 

unable to perform the duties of suitable work position due to a serious heart condition requiring 

surgery and was hospitalized from August 4, through 19, 2013. He also alleged that OWCP had 

failed to issue a decision on the February 10, 2016 request for reconsideration within 90 days in 

keeping with its procedures. OWCP denied this request in a decision dated December 21, 2016 

without reviewing the merits of the case.

As noted above, the Board does not have jurisdiction over the merits of the February 12, 

2015 decision. The issue presented on appeal is whether appellant met any of the requirements 

of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for further review of the merits 

of his claim. The Board finds that in his February 10, 2016 request for reconsideration appellant 

did not show that OWCP erroneously applied or interpreted a specific point of law, he did not 

advance a relevant legal argument not previously considered by OWCP and he did not submit 

relevant and pertinent new evidence not previously considered by OWCP. Thus, he is not 

entitled to a review of the merits of his claim based on the requirements under section 

10.606(b)(3). 

Counsel failed to submit relevant and pertinent new evidence with his reconsideration 

request. He relied on a legal argument that OWCP failed to consider all of appellant’s diagnosed 

medical conditions when it found that the offered position was suitable work. The Board finds 

that appellant failed to show that OWCP erroneously applied or interpreted a specific point of 

law. Moreover, appellant did not advance a relevant legal argument not previously considered 

by OWCP.8 OWCP previously addressed appellant’s cardiac hospitalization and surgery in the 

February 12, 2015 merit decision and found that this did not establish that the offered position 

was not suitable work. As such this legal argument cannot be considered new. Therefore, 

pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

Counsel further argued that OWCP failed to issue a timely decision regarding the request 

for reconsideration, and that this prejudiced appellant’s appeal rights. The Board notes that 

OWCP has a timeliness goal for issuing reconsideration decisions of within 90 days from receipt 

of the request.9 OWCP’s procedures provide that when a reconsideration decision is delayed 

beyond 90 days and the delay jeopardizes the claimant’s right to review the merits of the case by 

the Board, OWCP should conduct a merit review. However, the procedures note that there is no 

obligation to conduct a merit review on insufficient evidence if the maximum 180-day time limit 

for requesting review by the Board will have expired within the 90-day period following 

 

8 T.L., Docket No. 16-1408 (issued June 26, 2017).

9 V.D., Docket No. 16-1484 (issued January 6, 2017); M.D., Docket No. 13-1344 (issued November 7, 2013).
6

OWCP’s receipt of the claimant’s reconsideration request.10 The last merit decision in this case 

was the February 12, 2015 denial of modification. Appellant had 180 days after this decision, or 

until August 11, 2015, to appeal that decision to the Board. OWCP received the reconsideration 

request on February 10, 2016. Accordingly, it received appellant’s reconsideration request after 

the 180-day period for the appeal expired, and therefore OWCP’s delay in issuing the decision 

on the request for reconsideration did not impact appellant’s appeal rights.11

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

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 December 21, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 17, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

10 Supra note 7 at Chapter 2.1602.7(a) (October 2011).

11 V.D., supra note 9; B.D., Docket No. 15-0400 (issued May 12, 2016).