United States Department of Labor

Employees’ Compensation Appeals Board

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J.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Scarborough, ME, Employer

__________________________________________

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Docket No. 19-1844

Issued: August 14, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 3, 2019 appellant filed a timely appeal from April 23 and August 7, 2019 

nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days has elapsed from OWCP’s last merit decision, dated July 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 over the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly denied appellant’s March 19, 2019 request 

for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a); and (2) whether it

properly denied appellant’s July 23, 2019 request for reconsideration, finding that it was untimely 

filed and failed to demonstrate clear evidence of error.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 25, 2017 appellant, then a 46-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that factors of his federal employment, including repetitive 

movements of culling, ripping, and stripping on a preparation area designed for right-handed 

individuals, resulted in discomfort in his left thumb and corresponding tendons in his left arm. He 

noted that he first became aware of his conditions on August 25, 2017 and their relationship to 

factors of his federal employment on September 22, 2017. On the reverse side of the claim form 

the employing establishment reported that appellant was last exposed to the working conditions 

alleged to have caused his conditions on September 25, 2017.

In a state workers’ compensation claim form dated October 18, 2017, Dr. Therese K. 

White, a Board-certified plastic surgeon, indicated that appellant required a splint for his left hand 

for comfort as needed. She advised that he could return to modified employment duties, but did 

not assign specific restrictions.

In a statement dated October 20, 2017, appellant explained his employment duties as a mail 

handler and described the left thumb condition he had developed. He noted that he was scheduled 

to have an ultrasound on his left thumb on October 27, 2017 with Dr. White, per her 

recommendation. Appellant also noted employment records and medical reports submitted with 

his statement, including the October 18, 2017 report by Dr. White. In that report, Dr. White noted 

her physical examination of appellant and the history of pain and inability to extend his thumb 

following an injury at work six weeks prior. She noted full range of motion of the hand and digits 

with the exception of the thumb, which he was unable to fully extend at the interphalangeal (IP)

joint. Dr. White was unable to elicit any nodule and no triggering was identified upon 

manipulation of the thumb. She requested authorization for treatment from OWCP.

An October 27, 2017 left hand ultrasound report from Dr. Elena L. Resnick, a diagnostic 

radiologist, was submitted. Dr. Resnick observed a ruptured extensor pollicis longus tendon with 

significant retraction resulting in a 7.2 centimeter gap. She noted that the distal tendon remained 

visible at the IP, metacarpophalangeal, and carpometacarpal joints. The noted diagnosis was a 

spontaneous rupture of the extensor tendon of the left hand. In a report dated November 7, 2017,

Dr. White noted that she reviewed the ultrasound findings and confirmed the diagnosis of 

spontaneous rupture of extensor tendons, left hand.

In an attending physician’s report (Form CA-20) dated November 9, 2017, Dr. White noted 

that appellant’s left thumb would not straighten out and lacked motion. She also noted that surgery 

was possible to treat the diagnosed tendon ruptures which were indicated on the ultrasound testing.

In a letter to OWCP dated November 17, 2017, appellant requested that he be permitted to 

submit additional paperwork in support of his claim. He indicated that he was writing as he had 

not received return correspondence from OWCP following the submission of records on 

October 27, 2017. Appellant explained that he had called and left a voicemail and had still not 

received a response. He noted that Dr. White’s office had also attempted to contact OWCP and 

they too had not had any cooperation or success. Appellant again explained his employment duties 

and noted that he would require surgery on his left thumb. He requested assistance of OWCP to 

help him resolve the matter and provide the treatment that he needed immediately.
3

By decision dated November 28, 2017, OWCP denied appellant’s occupational disease 

claim, finding that the medical evidence of record was insufficient to establish that his left thumb 

rupture was causally related to the accepted factors of his federal employment. It concluded, 

therefore, that the requirements had not been met to establish an injury or a medical condition 

causally related to the accepted factors of federal employment.

On a fax coversheet dated December 8, 2017, Dr. White’s office noted that it was sending 

six pages of documents (including the cover page) regarding appellant’s claim with OWCP. Only 

the fax coversheet is of record for that date.

On December 9, 2017 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

OWCP subsequently received a copy of the October 27, 2017 report of Dr. Resnick which 

was previously of record. It also received Dr. White’s operative note dated January 30, 2018,

which documented surgery for the diagnosed left hand tendon rupture. In a subsequent January 24, 

2018 letter to OWCP, Dr. White noted appellant’s history of injury and her course of treatment for 

his diagnosed left thumb condition. She explained that certainly tendon ruptures can be due to 

attritional wear, but appellant documented repetitive work duties for eight hours per day for five 

days per week on an automated induction system (flat sorter) which created an awkward position 

of his left hand. Therefore, Dr. White opined that the diagnosed condition was employment 

related.

In a May 7, 2018 addendum to a January 24, 2018 letter, Dr. White noted that she was 

responding with regard to the line “tendon ruptures may be due to attritional wear.” She noted 

appellant performed tasks which would exacerbate weakness in a tendon and his repetitive work 

tasks can ultimately relate to tendon ruptures. Dr. White opined that given the lack of prior trauma 

and his repetitive work duties it was more likely than not that his work-related activities either 

caused or contributed to his tendon rupture.

In a letter dated May 25, 2017, Dr. White wrote on behalf of appellant, noting his course 

of left thumb treatment, his health history, and his employment duties, which she opined caused 

the diagnosed condition. She noted three specific employment duties and described photographs 

documenting the work location and its ergonomic features, which required appellant’s wrists to be 

in an awkward position as appellant is left-hand dominate and “the prep station ledge is not 

conducive to left-handed individuals.” Dr. White opined that the repetitive motion in this awkward 

position is highly likely to have been the inciting cause of his attritional rupture.

By decision dated July 12, 2018, an OWCP hearing representative affirmed the 

November 28, 2017 decision finding that, although appellant had established a diagnosed 

condition, he had not met his burden of proof to establish causal relationship.

Appellant requested reconsideration on October 26, 2018. He indicated that a 

September 18, 2018 letter from Dr. White accompanied his reconsideration request. Appellant

provided his contact information in case OWCP needed additional information. The 

September 18, 2018 letter was not attached to the reconsideration request in the case record as 

presented to the Board.
4

OWCP, by decision dated January 18, 2019, denied appellant’s request for reconsideration

of the merits of his claim pursuant to 5 U.S.C. § 8128(a), finding that the request neither raised 

substantive legal questions, nor included relevant and pertinent new evidence. It noted that the 

September 18, 2018 report referenced in his reconsideration request was not received.

On March 19, 2019 appellant again requested reconsideration. He indicated that

Dr. White’s September 18, 2018 report had accompanied his original reconsideration request, and 

noted that he was submitting it again. Appellant explained that Dr. White’s letter provided an 

“unequivocal medical narrative that provides a rationalized medical opinion specifying the work 

activity and circumstances which resulted in the extensor tendon rupture of [his] left thumb.” He 

requested that if additional information was necessary for consideration of his claim that he be 

contacted by telephone at a number he provided.

OWCP subsequently received a duplicate copy of Dr. Resnick’s October 27, 2017 left hand 

ultrasound report.

In a letter dated April 22, 2019, appellant was notified that his reconsideration request had 

been received by OWCP and that the file had been directed to a senior claims examiner who would 

review the “petition” and new evidence or argument and issue a decision.

By decision dated April 23, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to section 8128(a) of FECA. The decision was unsigned, but

found that his request had neither raised substantive legal questions, nor included relevant and 

pertinent new evidence. It indicated that Dr. White’s September 18, 2018 report was not received 

as part of the reconsideration request despite appellant’s statement that it was being submitted as 

a part of his request.

Appellant, on July 23, 2019, again requested reconsideration. He again noted that he was 

submitting Dr. White’s September 18, 2018 letter. The medical letter was included as an 

attachment with this request. In the report, Dr. White opined that appellant’s extensor tendon 

rupture of the left thumb was due to the repetitive nature of the work he performed in his mail 

handler position. She explained that it was well documented in literature that repetitive activities 

can lead to attritional ruptures. Dr. White maintained that this was exactly the scenario for 

appellant. She reported that he had been working at a prepping station using his left arm to reach 

over a ledge and pressing his left hand, thumb, and wrist in a flexed position with repetitive activity. 

Dr. White advised that this type of repetitive activity can certainly lead to attritional ruptures. She 

indicated that there was no other activity in appellant’s normal daily routine that would create a 

similar strain. Dr. White concluded, therefore, that his injury was causally related to his work.

OWCP, by decision dated August 7, 2019, summarily denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
5

LEGAL PRECEDENT -- ISSUE 1

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

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain

limitations in exercising its authority.3 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.4

A timely request for reconsideration, including all supporting documents, must set forth

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or

interpreted a specific point of law; (ii) advances a relevant legal argument not previously

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously

considered by OWCP.5 When a timely request 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.6

OWCP’s procedures provide that each request for reconsideration must be handled by a 

senior claims examiner who was not involved in the making of the contested decision. All 

reconsideration decisions, whether affirmative or negative, must be issued by a senior claims 

examiner or higher authority.7

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly denied appellant’s March 19, 2019 request for 

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

By decision dated April 23, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to section 8128(a) of FECA, finding that it neither raised 

substantive legal questions, nor included relevant and pertinent new evidence. The decision, 

however, is unsigned by a senior claims examiner and does not indicate it had been written by a 

senior claims examiner. OWCP’s procedures provide that each request for reconsideration must 

be handled by a senior claims examiner who was not involved in the making of the contested 

 

2 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

3 20 C.F.R. § 10.607.

4

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 (February 2016).

5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(a), (b).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(b) (October 2011).
6

decision.8 The record on appeal establishes that the contested decision of April 23, 2019 was 

unsigned and does not confirm that it was issued by a senior claims examiner not involved in the 

prior decisions. Therefore, the Board finds that OWCP failed to follow its procedures when it 

issued its April 23, 2019 decision denying appellant’s request for reconsideration. For these

reasons, the case will be remanded to OWCP for reconstruction and proper assemblage of the 

record and to consider all the evidence of record. After such further development as is deemed 

necessary, OWCP shall issue an appropriate merit decision.

CONCLUSION

The Board finds that OWCP improperly denied appellant’s March 19, 2019 request for 

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

9

ORDER

IT IS HEREBY ORDERED THAT the April 23, 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: August 14, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

 

8

Id.; see Order Remanding Case, H.G., Docket No. 15-1413 (issued December 29, 2015).

9

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.