United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Washington Township, NJ, Employer

__________________________________________

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Docket No. 18-0493

Issued: September 23, 2019

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 9, 2018 appellant, through counsel, filed a timely appeal from a September 20, 

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

than 180 days have elapsed from OWCP’s last merit decision, dated June 23, 2016, 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 over 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

On March 20, 2015 appellant, then a 54-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he slipped and fell while crossing a lawn and sustained an 

injury to his right knee while in the performance of duty.3 On March 18, 2016 OWCP accepted 

the claim for sprain of anterior cruciate ligament of the right knee, initial encounter.

OWCP subsequently received claims for compensation (Form CA-7) for wage-loss 

commencing May 7, 2015. 

In a development letter dated May 6, 2016, OWCP advised appellant that additional 

evidence was needed with regard to his claims for compensation. It advised him of the type of 

evidence needed to and afforded him 30 days to submit the requested evidence. 

In a May 31, 2016 report, Dr. Steven B. Shamash, a Board-certified orthopedic surgeon, 

noted that he initially treated appellant on March 24, 2015. He explained that, at that time, the

history of the presenting illness was stated incorrectly. Dr. Shamash indicated that, while appellant 

sustained an injury to the right knee, there was an actual fall, when appellant slipped on wet grass, 

twisting the knee. He explained that, as stated in his original note, appellant was able to stand up.

Dr. Shamash advised that if the information presented to him at that time was factually correct, 

“based on the mechanism of injury, where there was a slip, twisting injury to the knee and 

subsequent fall, the physical examination in addition to [appellant’s] seeking treatment initially at 

the emergency room, his knee injury and subsequent treatment are causally related to [the] reported 

accident of March 20, 2015.” 

In a June 23, 2016 decision, OWCP denied appellant’s claims for compensation for the 

period May 20 to July 28, 2015. 

On July 5, 2016 appellant, through counsel, requested reconsideration. Counsel argued 

that OWCP should also accept the case for a torn meniscus and retroactively authorize the right 

knee surgery to repair the tear, which was performed by Dr. Vincent K. McInerney, a Boardcertified orthopedic surgeon, on September 30, 2015. He included an x-ray dated November 24, 

2015 and an office note from September 1, 2015, the surgical report from September 30, 2015 and

Dr. McInerney’s treatment notes from November 24, 2015 and January 5, 2016. Counsel argued 

that Dr. Shamash indicated that appellant had a torn meniscus from the incident and it was 

confirmed by Dr. McInerney. 

 

3 OWCP received the first page of an authorization for examination and/or treatment form (Form CA-16) 

authorizing appellant’s medical treatment for his right knee.
3

By decision dated October 3, 2016, OWCP denied appellant’s request for reconsideration 

of the merits of his claim, finding that the evidence submitted was insufficient to warrant a merit 

review.

On June 19, 2017 appellant, through counsel, requested reconsideration. Counsel argued 

that OWCP issued a decision on June 23, 2016 denying payment for the period May 7 to 

July 24, 2015. He argued that the Branch of Hearings and Review directed OWCP to accept the 

case for a knee sprain, which OWCP accepted for a sprain of the ACL on March 18, 2016. Counsel 

explained that subsequent evidence documented a torn meniscus. He argued that the June 23, 2016 

decision referred to Dr. Shamash’s note of May 31, 2016 and indicated that it clarified the history 

of the injury as well as causal relationship. Counsel also referred to the April 28, 2015 magnetic 

resonance imaging scan and argued that it clarified that there was a tear of the medial meniscus as 

well as a nondisplaced subchondral impaction injury to the medial femoral condyle. He also 

argued that he had specifically requested on July 5, 2016 that OWCP approve the case for a torn 

meniscus and retroactively authorize the right knee surgery performed by Dr. McInerney on 

September 30, 2015. Counsel reiterated that both Dr. Shamash and Dr. McInerney confirmed a 

torn meniscus. He also reiterated that OWCP in its June 23, 2016 decision relied upon the fact 

that Dr. Shamash provided a May 6, 2015 report which indicated that appellant was released to 

sedentary duty. Counsel explained that there was no sedentary duty for a letter carrier, particularly 

when his claim was denied. He noted that the claim was not approved until March 18, 2016. 

By decision dated September 20, 2017, OWCP denied appellant’s request for 

reconsideration, finding that the evidence submitted was insufficient to warrant review of its prior 

decision. 

LEGAL PRECEDENT

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

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his or her own motion or on application.4

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (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.5

 

4 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

5 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).
4

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 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.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).

In the June 19, 2017 request for reconsideration, counsel argued that the medical evidence 

supported the expansion of appellant’s claim for a torn meniscus. He noted that he had made 

requests for OWCP to approve the case for a torn meniscus and retroactively authorize the right 

knee surgery performed by Dr. McInerney on September 30, 2015. Counsel reiterated that both

Dr. Shamash and Dr. McInerney confirmed a torn meniscus. 

The Board finds that appellant’s request for reconsideration did not allege that OWCP 

erroneously applied or interpreted a specific point of law. The Board further finds that the request 

for reconsideration did not advance a relevant legal argument not previously considered by OWCP. 

The underlying issue in this case is whether appellant has established total disability from work 

from May 20 to July 28, 2015 causally related to his accepted right knee sprain. As counsel’s 

arguments on reconsideration pertain to expansion of the claim, they are irrelevant to the 

underlying issue and are, therefore, insufficient to warrant further merit review. The Board thus 

finds that appellant is not entitled to a review of the merits based on the first and second 

requirements under section 10.606(b)(3).9

Appellant did not submit additional evidence with his June 19, 2017 request for 

reconsideration. Therefore, appellant is not entitled to a review of the merits based on the third 

requirement under section 10.606(b)(3).10 

 

6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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.

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

Id. at § 10.606(b)(3) (i) and (ii).

10 Id. at § 10.606(b)(3) (iii).
5

As appellant has not met 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).11

ORDER

IT IS HEREBY ORDERED THAT the September 20, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 23, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

11 The Board notes that record contains a Form CA-16 signed by an employing establishment official. When the 

employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the 

claim. C.W., Docket No. 17-1293 (issued February 12, 2018); Tracy P. Spillane, 54 ECAB 608 (2003). The period 

for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated 

earlier by OWCP. See 20 C.F.R. § 10.300(c).