United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, OR, Employer

__________________________________________

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Docket No. 18-1720

Issued: May 7, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 September 13, 2018 appellant, through counsel, filed a timely appeal from a June 27, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed since the last merit decision, dated July 20, 2017, 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. 

 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On May 23, 2015 appellant, then a 37-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that, while in the performance of duty, he developed a left hand and 

elbow injury due to repetitive duties which required pinching and grabbing mail. His supervisor 

noted on the claim form that he had stopped work on May 30, 2015.

In support of his claim, appellant submitted reports from Dr. Paul K. Won, Board-certified 

in family medicine.

By decision dated July 23, 2015, OWCP denied appellant’s claim, finding that he had not 

met his burden of proof to establish that the occupational exposure occurred as alleged.

On August 3, 2015 appellant requested reconsideration of OWCP’s decision. In support 

of his claim, he submitted a narrative statement describing his occupational duties, as well as 

diagnostic reports, and medical reports dated July 14 to September 15, 2015 from Dr. Won.

By decision dated October 1, 2015, OWCP affirmed the July 23, 2015 decision, as 

modified. It found that, although appellant had provided sufficient evidence to establish the 

alleged factors of his federal employment, the medical evidence of record was insufficient to 

establish that his diagnosed condition was causally related to the accepted employment factors. 

On November 19, 2015 appellant appealed to the Board. By decision dated April 11, 2016, 

the Board affirmed OWCP’s October 1, 2015 decision, finding that appellant had not met his 

burden of proof to establish that his left lateral epicondylitis was causally related to the accepted 

factors of his federal employment. 

On April 10, 2017 appellant, through counsel, requested reconsideration and noted 

submission of a March 28, 2017 report not previously considered from Dr. Neil Allen, Boardcertified in internal medicine and neurology. 

In a March 28, 2017 medical report, Dr. Allen reported that appellant’s medical records 

were reviewed in order to establish whether causal relationship existed between his left elbow 

condition and work-related trauma sustained prior to and on April 1, 2015. He described 

appellant’s repetitive employment duties as a letter carrier, reviewed diagnostic testing, and

diagnosed left lateral epicondylitis. Dr. Allen discussed tennis elbow research, explaining that the 

 

3 Docket No. 16-0232 (issued April 11, 2016).
3

extensor carpi radialis brevis muscle helps to stabilize the wrist when the elbow was straight, but 

becomes weakened from overuse, resulting in microscopic tears in the tendon where it attaches to 

the lateral epicondyle. He further reported that extensor carpi radialis brevis muscle was also at 

increased risk for damage because of its position, noting that as the elbow bends and straightens, 

the muscle rubs against bony bumps which can cause gradual wear and tear over time. Dr. Allen 

reported that it was well documented in literature that repetitive activity, specifically elbow 

extension, was the most common cause of lateral epicondylitis. He explained that as a rural letter 

carrier, appellant performed repetitive reaching (end range elbow extension) for seven to nine 

hours per day in order to complete the casing, sorting, and delivery of mail required by his position. 

Dr. Allen noted that this repetitive activity precipitated a symptomatic lateral epicondylitis, as 

documented on a September 3, 2015 magnetic resonance imaging (MRI) scan, which was 

supported by the accepted medical facts described in the literature. 

By decision dated July 20, 2017, OWCP reviewed the merits of appellant’s claim, but 

denied modification of its prior decision, finding that the new evidence submitted was of 

insufficient probative value to modify the April 11, 2016 decision. It found Dr. Allen’s report was 

of no probative value because it was not based on examination. OWCP further found that the 

evidence was insufficient to modify the prior decision because Dr. Allen was not the physician of 

record and had not based his opinion on examination. 

By letter dated March 21, 2018, appellant, through counsel, requested reconsideration of 

the July 20, 2017 decision. Counsel argued that the decision was not based on any legal or 

statutory authority. He asserted that the claims examiner incorrectly found that Dr. Allen’s report 

was of no probative value because he did not examine appellant. Counsel noted that OWCP district 

medical adviser’s (DMA) routinely provided opinions without examination. 

By decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration 

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

evidence sufficient to warrant a merit review. It found that counsel failed to establish that OWCP 

erroneously applied or interpreted a point of law. OWCP noted that counsel failed to cite specific 

OWCP regulations in regard to physical examinations to establish that the July 20, 2017 decision 

was improper. 

LEGAL PRECEDENT

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

it will review an award for or against compensation, either under its own authority or on application 

by a claimant.4 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.5

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 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). Chapter 2.1602.4b.
4

To require OWCP to reopen a timely application for merit review under section 8128(a) of 

FECA,6 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.7 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant’s application for review must be 

received within one year of the date of that decision.8 When a claimant fails to meet one of the 

above standards, OWCP will deny the application for reconsideration without reopening the case 

for review on the merits.9

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).

10

The underlying issue in this case was whether appellant’s left lateral epicondylitis was 

causally related to factors of his federal employment. In its July 20, 2017 decision, OWCP denied 

modification of the prior decision, finding that Dr. Allen’s report was of no probative value 

because it was not based on actual examination and because he was not the physician of record. 

On reconsideration, counsel argued that there was no legal or statutory authority to support 

OWCP’s finding that Dr. Allen’s report was of no probative value because he did not examine 

appellant. He asserted that OWCP’s procedures routinely allowed OWCP’s district medical 

advisers to offer opinions without physical examination. 

The Board finds that counsel’s argument on reconsideration is new and relevant to the 

underlying issue of causal relationship and therefore the refusal of OWCP to reopen appellant’s 

case for further consideration of the merits of his claim constituted an abuse of discretion.11

Thus, the Board will set aside OWCP’s June 27, 2018 decision and remand the case for 

merit review of appellant’s claim. After such further development as is deemed necessary, OWCP 

shall issue an appropriate merit decision.

 

6 Supra note 4.

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b).

10 C.F., Docket No. 18-0583 (issued October 16, 2018).

11 L.N., Docket No. 12-1326 (issued November 21, 2012); see also Federal (FECA) Procedure Manual, supra note 

5 at Chapter 2.810.6 (September 2010) (to obtain merit review, a claimant need not submit all evidence that may be 

necessary to discharge his burden of proof); Helen E. Tschantz, 39 ECAB 1382 (1988); V.B., Docket No. 12-1057 

(issued October 23, 2012).
5

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’

Compensation Programs is set aside. The case is remanded for further proceedings consistent with 

this opinion.

Issued: May 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