United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jenison, MI, Employer

__________________________________________

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Docket No. 19-1700

Issued: April 30, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 8, 2019 appellant filed a timely appeal from a June 6, 2019 nonmerit decision 

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

OWCP’s last merit decision, dated April 12, 2018, 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 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

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 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 September 30, 2013 appellant, then a 53-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 25, 2013 he injured his right thigh and upper leg 

when he missed a step and jammed his leg while in the performance of duty. He stopped work on 

September 28, 2013.

By decision dated December 4, 2013, OWCP denied appellant’s claim. It found that he

had established that the incident occurred as alleged, however, the medical evidence of record did 

not contain a medical diagnosis in connection with the incident. OWCP concluded that the

requirements had not been met to establish an injury as defined by FECA. 

On December 19, 2013 appellant requested reconsideration and submitted additional 

evidence.

By decision dated February 20, 2014, OWCP modified of its December 4, 2013 decision 

finding that the medical evidence provided a diagnosis of a medical condition. However, the claim 

remained denied as the medical evidence of record was insufficient to establish that the diagnosed 

condition was causally related to the accepted employment incident. 

On March 20, 2014 appellant requested reconsideration and submitted additional evidence.

In a March 10, 2014 report, Dr. Brian P. Giersch, a Board-certified physiatrist, noted 

appellant’s history of injury. He related that appellant was descending a short series of stairs while 

working, he missed one of the steps, lost his balance, and experienced a jolt to his right leg and 

back as he caught himself from falling. Dr. Giersch provided appellant’s physical examination 

findings and diagnosed “status post near fall with resultant right paralumbar, gluteal, and right 

lower extremity discomfort/sensory disturbance.”

By decision dated June 2, 2014, OWCP denied modification of the February 20, 2014 

decision. It found that the medical evidence of record was insufficient to establish that appellant’s 

diagnosed condition was causally related to the accepted employment incident.

On June 9, 2014 appellant requested reconsideration. 

Dr. Giersch continued to treat appellant and submit progress reports.

 

2 Docket No. 15-1248 (issued June14, 2016).
3

In a June 6, 2014 report, Dr. Giersch provided an opinion on causal relationship, relating 

that:

“Review of my notes would in fact, suggest that my differential diagnosis includes 

a lateral femoral cutaneous neuropathy and perhaps referred phenomenon from the 

back or hip. My ongoing diagnosis at this point is that of lateral femoral cutaneous 

neuropathy. Again, this would be the most likely etiology for his symptoms, which 

remains fairly well confined to the lateral thigh region at this time. This is related, 

by history provided by [appellant], to his near fall injury, which originally brought 

him to my medical attention.” 

By decision dated August 25, 2014, OWCP denied modification of the prior decision. It 

found that, while Dr. Giersch attempted to satisfy the issue of causal relationship by opining that 

the condition was related “to the near fall injury,” he failed to explain how he arrived at this 

conclusion. 

On December 11, 2014 counsel requested reconsideration. 

In a November 20, 2014 report, Dr. Giersch indicating that appellant had a “misstep while

working on September 25, 2013.” He advised that a magnetic resonance imaging scan of the 

lumbosacral spine revealed moderate congenital stenosis, superimposed degenerative changes, 

facet arthrosis, disc bulging, epidural lipomatosis, and possible ankylosing spondylitis. 

Dr. Giersch further advised that electromyography (EMG) scan studies were mildly abnormal with 

mild irritability in the paraspinal muscles. He diagnosed lateral femoral cutaneous neuropathy.

Dr. Giersch opined that, “In my medical opinion, the facts of injury are the direct and proximate 

cause of the diagnosis that I cited above. This is based on reasonable medical probability. There 

may be other causes for this medical problem, but one of the causes is clearly the activities of work 

described [by] the patient and described above.”

By decision dated March 5, 2015, OWCP denied modification of its prior decision. 

On May 13, 2015 appellant, through counsel, timely appealed to the Board. 

By decision dated June 14, 2016, the Board affirmed the March 5, 2015 OWCP decision, 

finding that the medical evidence of record was insufficient to establish causal relationship 

between appellant’s medical condition and the accepted September 25, 2013 employment 

incident.

3

On December 19, 2016 appellant, through counsel, requested reconsideration and 

submitted new medical evidence. 

In a December 1, 2016 report, Dr. Giersch indicated that he would like to clarify his prior 

reports. He indicated that, “It is my opinion that [appellant] did in fact sustain a work-related 

injury while at work back in 2014 when [appellant] had a misstep while walking down a short 

series of stairs. This resulted in a sudden onset of symptoms not only in the right thigh, but also 

 

3

Id.
4

the buttock, and low back area. I am unable to provide further details or specifics about precise 

mechanisms of injury. This would require significant speculation on my part.” Dr. Giersch 

explained that appellant had ongoing symptomatology. He further opined that “[p]rior to the onset 

of these symptoms, [appellant] was not experiencing any of these symptoms, and I have no reason 

to question the veracity of his statements up until this day.” 

By decision dated March 7, 2017, OWCP denied appellant’s request for reconsideration of 

the merits of his claim. It found that Dr. Giersch’s December 1, 2016 report was speculative and 

repetitive of his previous reports.

On June 13, 2017 appellant, through counsel, again requested reconsideration and 

submitted a copy of a June 6, 2014 report from Dr. Giersch, which was previously of record and 

reviewed by OWCP. 

By decision dated September 8, 2017, OWCP denied modification, finding that the medical 

evidence of record was insufficiently rationalized to establish causal relationship. 

On January 22, 2018 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence. 

In a January 3, 2018 report, Dr. Giersch noted that he had previously provided an incorrect

date of injury in his December 1, 2016 report. He explained that he reviewed his notes from the 

initial consultation on March 10, 2014 and that the “injury did in fact as indicated by the patient 

on our evaluation form occurred on September 24, 2013.”

By decision dated April 12, 2018, OWCP denied modification of the September 8, 2017 

decision. 

On August 13, 2018 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence.

In a May 18, 2018 report, Dr. Min Zhu, a Board-certified neurologist, indicated that she 

had performed nerve conduction velocity and EMG testing, which was within normal limits.

By decision dated November 9, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of his claim. It found that the report of Dr. Zhu had no bearing on 

the issue and therefore was irrelevant and immaterial.

On April 11, 2019 appellant again requested reconsideration and submitted additional 

medical evidence.

In an April 3, 2019 report, Dr. Giersch repeated appellant’s history of injury. He related 

that appellant was felt to have probable right femoral cutaneous neuropathy as well as back pain, 

with intermittent sensory symptoms in his foot of unclear significance. Dr. Giersch opined that it 

was his opinion “within a reasonable degree of medical probability, that these ongoing symptoms 

are a direct result of the injuries sustained while working on September 25, 2013 when [appellant]

sustained a near fall and misstep. He explained: “Specifically, [appellant] perhaps sustained some 

type of stretch injury to the right lateral femoral cutaneous nerve, as well as some jarring of the 
5

low back which likely aggravated some underlying degenerative changes which has resulted in 

some back discomfort.” Dr. Giersch further explained that appellant was not experiencing any of 

these symptoms prior to this work-related injury from September 25, 2013.

By decision dated June 6, 2019, OWCP denied appellant’s request for reconsideration. 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right. OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.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 A timely application for 

reconsideration, including all supporting documents, must set forth arguments and contain 

evidence that either: (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 When a timely 

application for reconsideration does not meet at least one of the above-noted requirements, OWCP 

will deny the request for reconsideration without reopening the case for a review on the merits. 7 

In support of a request for reconsideration, a claimant 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 a 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

 

4

20 C.F.R. § 10.607.

5

Id. at § 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). Id. at Chapter 2.1602.4b.

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

See S.F., Docket No. 18-0516 (issued February 21, 2020); P.L., Docket No. 18-1145 (issued January 4, 2019); 

Helen E. Tschantz, 39 ECAB 1382 (1988).

9

S.S., Docket No. 18-0647 (issued October 15, 2018).

10 P.L., supra note 8; Annette Louise, 54 ECAB 783 (2003).
6

ANALYSIS

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

the merits of his claim. 

In his request for reconsideration, appellant did not show that OWCP erroneously applied 

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

considered by OWCP. Thus, he is not entitled to a review of the merits based on the first and 

second requirements under 20 C.F.R. §10.606(b)(3).

However, with respect to the third above-noted requirement under 20 C.F.R. 

§ 10.606(b)(3), appellant submitted pertinent new and relevant medical evidence in support of his 

request for reconsideration in the form of an April 3, 2019 report from Dr. Giersch. In addition to 

his consistent conclusions that appellant’s ongoing symptoms were causally related to the accepted 

September 25, 2013 employment incident, he added the following explanation: “Specifically, he 

perhaps sustained some type of stretch injury to the right lateral femoral cutaneous nerve, as well 

as some jarring of the low back which likely aggravated some underlying degenerative changes 

which has resulted in some back discomfort.”

The Board has held that, in support of a request for reconsideration, a claimant is not 

required to submit all evidence which may be necessary to discharge his or her burden of proof. 

He or she need only submit relevant and pertinent evidence not previously considered by OWCP.11 

The Board finds that Dr. Giersch’s April 3, 2019 report constitutes pertinent new and relevant 

evidence, which directly addresses the issue of causal relationship.12 Appellant’s request for 

reconsideration therefore met the third standard for obtaining merit review of his case under 20 

C.F.R. § 10.606(b)(3). Accordingly, he is entitled to a merit review.

The Board will set aside OWCP’s June 6, 2019 decision denying appellant’s request for 

reconsideration and will remand the case for a merit review. After any necessary further 

development, OWCP shall issue an appropriate decision.

CONCLUSION

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

the merits of his claim. 

 

11 See Helen E. Tschantz, 39 ECAB 1382 (1988); see also C.L., Docket No. 19-1440 (issued March 19, 2020) n.14; 

S.H., Docket No. 17-1101 (issued August 3, 2017).

12 See H.D., Docket No. 18-0865 (issued February10, 2020); S.H., id.
7

ORDER

IT IS HEREBY ORDERED THAT the June 6, 2019 decision of the Office of Workers’

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

with this decision of the Board.

Issued: April 30, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board