United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SAN DIEGO HEALTHCARE SYSTEM, 

San Diego, CA, Employer

__________________________________________

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Docket No. 19-1943

Issued: June 1, 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

JANICE B. ASKIN, Judge

JURISDICTION

On September 23, 2019 appellant filed a timely appeal from a May 17, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated March 14, 2019, 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.

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

On October 4, 2018 appellant, then a 50-year-old health technician, filed a traumatic injury 

claim (Form CA-1) alleging that on September 17, 2018 he reaggravated a left knee condition

when a patient he was helping stand up fell to the ground while in the performance of duty. He

did not stop work.

In an October 15, 2018 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

In an October 29, 2018 letter, Dr. Michael Cecilio, a Board-certified family practitioner, 

noted that appellant had been experiencing left knee pain after supporting a patient that collapsed 

when unable to stand on his own on September 17, 2018. In an accompanying after-visit summary,

Dr. Cecilio diagnosed left knee joint pain and referred appellant to an orthopedics department.

An October 31, 2018 after-visit summary indicated that appellant saw Dr. Joseph Carney, 

a Board-certified orthopedic surgeon, for left knee joint pain.

By decision dated November 26, 2018, OWCP denied appellant’s claim finding that the 

medical evidence of record was insufficient to establish a valid medical diagnosis causally related 

to the accepted September 17, 2018 employment incident.

On December 18, 2018 appellant requested reconsideration.

April 28 and November 20, 2018 magnetic resonance imaging (MRI) scans of appellant’s 

left knee were submitted to the record and demonstrated mild versus complex medical meniscus 

tearing.

In a December 6, 2018 report, Dr. Carney noted that appellant’s left knee pain had not 

improved since his last visit. He reviewed left knee MRI scans and diagnosed symptomatic left 

knee complex meniscal tear with potential insufficiency injury to the overlying medial femoral 

condyle. Dr. Carney opined that when comparing the November MRI scan findings to April MRI 

scan findings, the acute worsening of appellant’s symptoms may have been due to the employment 

incident in September.

By decision dated March 14, 2019, OWCP modified its November 26, 2018 decision 

finding that the medical evidence of record provided a valid medical diagnosis, but was insufficient 

to establish that the diagnosed condition was causally related to the accepted September 17, 2018 

employment incident.

On April 22, 2019 appellant requested reconsideration.

In a March 21, 2019 letter, Dr. Carney indicated that appellant had a preexisting 

degenerative meniscus tear and left knee osteoarthritis that was aggravated by the employment 

incident. He opined that after reviewing MRI scans of appellant’s left knee, it was likely on a 
3

more probable than not basis, that the employment incident was responsible for appellant’s 

worsening left knee conditions.

By decision dated May 17, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that he had not submitted anything

in support of his request for reconsideration. 

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.2

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.3

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

OWCP’s decision for which review is sought.4 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.5 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.6

ANALYSIS

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

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

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

or interpreted a specific point of law, nor did he advance a new and relevant legal argument not 

previously considered. Accordingly, he is not entitled to a review of the merits of his claim based 

on the first and second above-noted 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 a March 21, 2019 letter authored by Dr. Carney. The letter 

 

2 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); W.C., 59 ECAB 372 (2008).

3 20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 19-1169 (issued February 7, 2020); C.N., Docket No. 08-1569 

(issued December 9, 2008).

4

Id. at § 10.607(a); see Y.H., Docket No. 18-1618 (issued January 21, 2020).

5

Id. at § 10.608(a); see S.B., Docket No. 19-1320 (issued January 17, 2020); M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); see N.C., Docket No. 19-1378 (issued February 13, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
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indicated that appellant had a preexisting degenerative meniscus tear and left knee osteoarthritis 

that was aggravated by the employment incident.

FECA provides that OWCP shall determine and make findings of fact in making an award 

for or against payment of compensation after considering the claim presented by the employee and 

after completing such investigation as OWCP considers necessary with respect to the claim.7 Since 

the Board’s jurisdiction of a case is limited to reviewing that evidence which is before OWCP at 

the time of its final decision,8it is necessary that OWCP review all evidence submitted by a 

claimant and received by OWCP prior to issuance of its final decision. As the Board’s decisions 

are final as to the subject matter appealed,9it is crucial that all evidence relevant to that subject 

matter which was properly submitted to OWCP prior to the time of issuance of its final decision 

be addressed by OWCP.10

The Board finds that OWCP improperly failed to consider all the relevant evidence 

submitted by appellant in denying his request for reconsideration of the merits of his claim 

pursuant to 5 U.S.C. § 8128(a).11 Therefore, the case is remanded to OWCP for consideration of 

the evidence he submitted in connection with his reconsideration request, to be followed by the 

issuance of an appropriate decision regarding his reconsideration request.

CONCLUSION

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

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

 

7 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126; see J.J., Docket No. 19-0448 (issued December 30, 2019); see Hubert 

Jones, Jr., 57 ECAB 467 (2006).

8 R.P., Docket No. 19-0301 (issued August 21, 2019); K.L., Docket No. 16-1341 (issued December 20, 2016); E.Z., 

Docket No. 14-0274 (issued March 16, 2015); Linda Johnson, 45 ECAB 439 (1994).

9

Id.

10 I.L, Docket No. 17-0684 (issued July 18, 2017); see E.P., Docket No. 14-0278 (issued February 26, 2014); see 

also William A. Couch, 41 ECAB 548, 553 (1990).

11 Id.
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ORDER

IT IS HEREBY ORDERED THAT the May 17, 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: June 1, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board