United States Department of Labor

Employees’ Compensation Appeals Board

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M.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Millbrae, CA, Employer

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Docket No. 19-1298

Issued: March 18, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On May 23, 2019 appellant filed a timely appeal from a May 7, 2019 nonmerit decision of 

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

Board decision dated November 5, 2018, which became final after 30 days of issuance and is not 

subject to further review.1 As there was no merit decision issued by OWCP within 180 days of 

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.

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 20 C.F.R. § 501.6(d); see M.E., Docket No. 18-0215 (issued November 5, 2018). 

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows.

On October 20, 2017 appellant, then a 54-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his left knee on November 11, 2014 while in the 

performance of duty “at a tree root in front of a house ... while delivering mail in the rain and 

dark.” The employing establishment controverted the claim alleging that appellant’s supervisor 

was not aware of the incident. It also controverted continuation of pay, as the injury was not 

reported on a Form CA-1 within 30 days following the injury. 

In a development letter dated October 26, 2017, OWCP advised appellant of the factual 

and medical deficiencies of his claim. It informed him of the evidence necessary to establish his 

claim and provided a questionnaire for his completion regarding the circumstances of the injury. 

OWCP afforded appellant 30 days to respond.

The employing establishment submitted a statement confirming that appellant had 

delivered mail on November 11, 2014. 

In a March 13, 2015 report, Dr. Alberto Bolanos, a Board-certified orthopedic surgeon, 

described February 17, 2015 left knee magnetic resonance imaging (MRI) scan findings. His 

diagnoses included left knee medial meniscal tear and chondromalacia of the trochlea. Dr. Bolanos

performed left knee meniscus arthroscopic repair and chondroplasty on April 13, 2015. In a 

follow-up report dated June 11, 2015, he indicated that appellant was still having some pain in his 

left knee, but less than previously.

The record also contains disability notes signed by Dr. Bolanos indicating that appellant 

was seen on December 16, 2014, and February 13 and June 11, 2015.

By decision dated December 5, 2017, OWCP determined that appellant was not entitled to 

continuation of pay (COP) for the period November 12 to December 26, 2014 as his injury was 

not reported on a form approved by OWCP within 30 days following the alleged injury.

By decision dated December 5, 2017, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that the November 11, 2014 

employment incident occurred as alleged. 

On December 19, 2017 appellant requested reconsideration. In an accompanying 

statement, he maintained that he had immediately reported his injury to his supervisor who asked 

him to continue working and finish delivering the mail. Appellant indicted that he had no choice,

but to continue to work, and had not gone to the doctor that day because he had to pick up his 

children at school. He indicated that he started having severe pain, but his supervisor rejected his 

 

3 M.E., supra note 1.
3

requests for days off. Appellant alleged that his supervisor had not documented his injury when 

he reported it.

By decision dated January 3, 2018, OWCP denied appellant’s request for reconsideration 

without conducting a merit review. 

Appellant filed an appeal with the Board on January 19, 2018. By decision dated 

November 5, 2018, the Board affirmed the January 3, 2018 and December 5, 2017 decisions 

regarding denial of reconsideration and performance of duty. The Board affirmed as modified the 

December 5, 2017 decision regarding the COP. The Board found that appellant had not met his 

burden of proof to establish a traumatic injury in the performance of duty on November 11, 2014,

and that he was therefore not eligible for COP. The Board further found that OWCP properly 

denied appellant’s request for reconsideration of the merits of his claim. 

On April 5, 2019 appellant requested reconsideration with OWCP. He submitted 

additional evidence, including evidence previously of record. Newly submitted evidence consisted 

of an undated report in which Dr. Bolanos indicated that appellant underwent left knee surgery on 

April 13, 2015. Appellant also submitted a March 12, 2019 letter from him to an employing 

establishment supervisor asking for confirmation that he reported the November 2014 injury. In a 

statement dated March 15, 2019 he explained that while delivering mail on November 11, 2014, 

he injured his left knee on a tree that was newly cut and a branch half cut, close to a walkway in 

front of a house. Appellant noted that he had reported the incident to his supervisor, but was 

ordered to continue working. He further noted that he had not sought medical care until it became 

severe, and this led to his April 13, 2015 surgery.

By decision dated May 7, 2019, OWCP denied appellant’s request for reconsideration, 

finding that the evidence submitted was insufficient to warrant merit review. 

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 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.6

A timely request 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 

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.607.

6

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. Chapter 2.1602.4b
4

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.7 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.8

ANALYSIS

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

the merits of his claim. 

With his April 5, 2019 reconsideration request, appellant submitted a statement in which 

he documented the events of November 11, 2014, claiming that he injured his left knee on a newly 

cut tree branch while delivering mail that day. He further explained that he had reported the injury

to his supervisor.

The Board finds that appellant’s March 15, 2019 response to the development 

questionnaire is new and relevant evidence on the issue of whether the November 11, 2014 incident 

had occurred as alleged, as it provides further detail as to the circumstances of the incident.

9

 As 

such, the Board finds that OWCP improperly denied a merit review in its decision of May 7, 2019. 

Appellant’s statement is relevant and pertinent new evidence not previously considered by 

OWCP.10 

The Board accordingly finds that appellant met the third above-noted requirement of 

20 C.F.R. § 10.606(b)(3) in his April 5, 2019 reconsideration request. Consequently, the Board 

finds that OWCP improperly denied merit review pursuant to 20 C.F.R. § 10.608.11 The case shall 

therefore be remanded to OWCP for further consideration of the merits of appellant’s claim to be 

followed by an appropriate merit decision. 

CONCLUSION

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

the merits of his claim.

 

7 20 C.F.R. § 10.606(b)(3); see G.L., Docket No. 19-0620 (issued September 3, 2019).

8

Id. at § 10.608.

9 See N.D., Docket No. 18-0753 (issued January 17, 2020).

10 R.M., Docket No. 19-0543 (issued December 23, 2019).

11 Id.
5

ORDER

IT IS HEREBY ORDERED THAT the May 7, 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: March 18, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board