United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, San Diego, CA, Employer

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Docket No. 19-0607

Issued: September 6, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 23, 2019 appellant filed a timely appeal from a September 12, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a Board decision dated February 2, 2018,1 which became final 30 days after issuance, 

and is not subject to further review.2 As OWCP did not issue another merit decision within 180 

days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3(FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.4 

 

1 Docket No. 17-1044 (issued February 2, 2018).

2 20 C.F.R. § 501.6(d); see G.G., Docket No. 18-1074 (issued January 7, 2019).

3 5 U.S.C. § 8101 et seq.

4 The Board notes that, following the September 12, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.5 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 December 14, 2012 appellant, then a 61-year-old medical supply technician, filed a 

traumatic injury claim (Form CA-1) alleging that on December 13, 2012 she injured her left 

shoulder, arm, knee, and leg while in the performance of duty.6 On February 22, 2013 her claim 

was accepted for multiple contusions, left upper arm contusion, and left lower leg contusion under 

OWCP File No. xxxxxx710. Although it initially declined to accept a left shoulder tear as 

employment related, on March 2, 2015 OWCP expanded appellant’s claim to include left shoulder 

rotator cuff tear and superior labral tear as accepted conditions.7 On June 15, 2015 appellant 

underwent OWCP-approved left shoulder arthroscopic surgery. Following surgery, she received 

wage-loss compensation on the supplemental rolls through August 7, 2015. Appellant resumed 

work on August 10, 2015.

In December 2015, appellant requested that OWCP expand her claim to include left knee 

meniscus tear as an accepted condition. Effective December 11, 2015, OWCP resumed payment 

of wage-loss compensation as the employing establishment was no longer able to accommodate 

appellant’s work restrictions. It placed her on the periodic compensation rolls beginning 

January 10, 2016.

By decision dated April 25, 2016, OWCP denied expansion of appellant’s claim to include 

left knee meniscal tear. In a November 14, 2016 decision, an OWCP hearing representative 

affirmed the April 25, 2016 decision. Appellant then appealed to the Board. By decision dated 

February 2, 2018, the Board affirmed the hearing representative’s November 14, 2016 decision, 

finding that appellant had not met her burden of proof to establish a left knee meniscal tear causally 

related to the accepted December 13, 2012 employment injury.8

Subsequent to its November 14, 2016 decision, OWCP referred appellant, along with a 

statement of accepted facts (SOAF) and the medical record, to Dr. William P. Curran, Jr., a Boardcertified orthopedic surgeon, for a second-opinion examination to determine the nature and extent 

 

5 Supra note 1.

6 Appellant was positioned between two racks of inventory when a coworker pushed one of the racks to access 

another aisle. Consequently, she was squeezed between two racks of inventory in the aisle where she was located.

7 Under File No. xxxxxx800, appellant has an accepted traumatic injury claim for right forearm/elbow contusion, 

face/scalp/neck contusion, left leg abrasion, and right shoulder rotator cuff strain, which arose on October 8, 2013. 

OWCP administratively combined File Nos. xxxxxx800 and xxxxxx710, and designated the latter claim as the master 

file.

8 Supra note 1.
3

of her December 13, 2012 employment injuries. In a December 14, 2016 report, Dr. Curran 

described the December 13, 2012 employment injury and reviewed the medical record. He related 

appellant’s current complaints of intermittent daily left shoulder pain, mid and low back pain and 

intermittent stiffness, and constant left knee pain. Upon examination of appellant’s left knee,

Dr. Curran observed tenderness to palpation in the medial and lateral joint lines and negative 

McMuray’s test. He indicated that appellant continued to have residuals related to her accepted 

December 13, 2012 employment injuries. Dr. Curran also reported that appellant had “subjective 

and objective findings compatible with a torn lateral meniscus, left knee.”

OWCP received a March 15, 2017 progress report by Dr. Michael Moon, Board-certified 

in physical medicine and rehabilitation and pain management, who indicated that he evaluated 

appellant for complaints of pain in her neck, low back, left knee, and left shoulder. Dr. Moon

noted that appellant was waiting authorization for left knee surgery. Upon examination of 

appellant’s left knee, he observed medial and lateral joint line tenderness to palpation and limited 

left knee extension at 10 degrees.

On March 20, 2017 appellant returned to full-time modified duty as a supply clerk.

OWCP also received progress reports from Dr. Jon P. Kelly, a Board-certified orthopedic

surgeon, which covered the period November 16, 2016 to January 10, 2018. Dr. Kelly related 

appellant’s complaints of worsening left knee, low back, and bilateral shoulder pain. Upon 

examination of appellant’s left knee, he observed tenderness along the lateral joint line and 

patellofemoral tenderness. Dr. Kelly noted that appellant walked with a mildly antalgic gait. He

diagnosed left knee lateral meniscal tear and indicated that it was “aggravated by impact by metal 

cart on date of injury.” Dr. Kelly indicated that appellant could return to modified-duty work.

Additionally, OWCP received a May 22, 2018 letter from Dr. Curran, Jr., who described 

the December 13, 2012 employment injury and noted that appellant’s claim was not accepted for 

a left knee condition. Dr. Curran, Jr. related appellant’s current complaints of constant pain in her 

cervical, thoracic, and lumbar spine and intermittent, daily left knee pain with constant stiffness, 

swelling, and instability. Upon examination of appellant’s left knee, he noted that appellant had 

an antalgic gait and was unable to squat. Dr. Curran, Jr. diagnosed postoperative left shoulder 

surgery, multiple contusions to her left upper and lower extremities, and complaints referable to 

the cervical, thoracic, and lumbar spine. He reported that he was unable to provide an opinion 

regarding the causal relationship of appellant’s diagnosed conditions. Dr. Curran, Jr. completed a 

duty status report (Form CA-17), which indicated that appellant could return to work with 

restrictions.

On June 15, 2018 appellant requested reconsideration. She argued that the Board reached 

an erroneous conclusion based on factually incorrect information. Appellant explained that the 

Board’s February 2, 2018 decision incorrectly noted that Dr. David C. Majors, a Board-certified 

physiatrist, did not mention any left knee condition in his February 16, 2016 report. She included 

the first page of Dr. Majors’ February 16, 2016 report, which related appellant’s complaints of left 

knee pain. Appellant argued that the Board’s negligence and disregard of the facts denied her right 

to a fair and objective decision.

OWCP also received several laboratory test results dated July 6, 2017 and 

January 24, 2018.
4

By decision dated September 12, 2018, OWCP denied further merit review of appellant’s 

claim under 5 U.S.C. § 8128(a) finding that appellant’s reconsideration request neither raised 

substantive legal questions nor included new and relevance evidence sufficient to warrant further 

merit review.

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9the 

claimant must provide evidence or an argument that: (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.10 

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

of OWCP’s decision for which review is sought.11 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.12 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.13

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.14 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.15 When reviewing an 

OWCP decision denying 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.16

ANALYSIS

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

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

Following its November 14, 2016 decision, OWCP received additional medical reports, 

including a December 14, 2016 second-opinion report by Dr. Curran, Jr. He discussed the status 

of appellant’s accepted left shoulder, left upper arm, and left leg injuries and also reported that she 

 

9 5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application.

10 20 CFR § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

11 20 C.F.R. § 10.607(a).

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

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

14 J.F., Docket No. 17-1508 (issued March 28, 2018).

15 Id.; see also Mark H. Dever, 53 ECAB 710 (2002).

16 Supra note 13; Annette Louise, 54 ECAB 783 (2003).
5

had “subjective and objective findings” compatible with a left knee lateral meniscus tear. 

Similarly, in reports dated November 16, 2016 to January 10, 2018, Dr. Kelly noted left knee 

examination findings of tenderness along the lateral joint line and patellofemoral tenderness. He 

diagnosed left knee lateral meniscal tear and indicated that it had been “aggravated by impact by 

metal cart on date of injury.” 

The Board finds that the reports of Dr. Curran Jr. and Dr. Kelly constitute relevant and 

pertinent new evidence not previously considered by OWCP. Moreover, both physicians provided 

opinions supportive of a causal relationship, which is the relevant underlying issue on 

reconsideration.17 By decision dated September 12, 2018, OWCP referenced Dr. Kelly’s 

previously submitted February 16, 2016 report, but did not specifically address either Dr. Curran’s

or Dr. Kelly’s medical reports. As the current record includes relevant and pertinent evidence not 

previously considered by OWCP in its November 14, 2016 decision, appellant has met the third 

above-noted requirement of 20 C.F.R. § 10.606(b)(3). Consequently, the Board finds that OWCP 

improperly denied merit review pursuant to 20 C.F.R. § 10.608.18

The case will be remanded for OWCP to properly conduct a merit review of the claim. 

Following this and such other additional development as deemed necessary, OWCP shall issue an 

appropriate merit decision.

CONCLUSION

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

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

 

17 See K.J., Docket No. 19-0146 (issued July 10, 2019); see also E.R., Docket No. 17-1055 (issued 

August 17, 2017).

18 W.D., Docket No. 18-1530 (issued February 14, 2019); K.M., Docket No. 15-1290 (issued September 23, 2015).
6

ORDER

IT IS HEREBY ORDERED THAT the September 12, 2018 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: September 6, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board