United States Department of Labor

Employees’ Compensation Appeals Board

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G.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cayey, PR, Employer

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Docket No. 19-0815

Issued: January 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 4, 2019 appellant filed a timely appeal from a January 30, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated October 13, 2017, to 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 the case.3

 

1 Appellant also appealed a purported decision dated February 12, 2019. The February 12, 2019 correspondence 

from OWCP, however, is informational in nature and does not constitute a final decision with appeal rights. 20 C.F.R. 

§ 501.2(c). 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the January 30, 2019 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 his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY

This case has previously been before the Board.4 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 August 30, 2011 appellant, then a 28-year-old transitional employee (TE) carrier, filed 

a traumatic injury claim (Form CA-1) alleging that he injured his back on August 25, 2011 while

in the performance of duty. He indicated that he was attacked by a dog, and that he stumbled and 

fell over a car. Appellant stopped work on August 26, 2011 and returned to work on 

August 30, 2011. OWCP accepted the claim for lumbar back sprain.

Appellant filed claims for compensation (Form CA-7) for wage loss from October 3, 2011 

through January 6, 2012. 

By decision dated July 18, 2016, OWCP denied appellant’s claim for wage-loss 

compensation for disability for the period October 3, 2011 through January 6, 2012. It found that 

because his attendance was irregular even before the August 25, 2011 employment injury, it could 

not authorize payment of compensation as appellant failed to show that the removal was a result 

of disability after the employment injury. OWCP further found that the medical evidence of record

around the time of the alleged September 25, 2011 recurrence failed to provide a rationalized 

explanation as to how the work stoppage was caused by a spontaneous change or worsening in the 

accepted lumbar strain without an intervening injury. It also noted that there was a gap in medical 

evidence from 2011 through 2013 and that most of the medical evidence received was from 2015 

and 2016.5

On June 21, 2017 appellant requested reconsideration of OWCP’s July 18, 2016 decision 

denying compensation for the period October 3, 2011 through January 6, 2012. By decision dated 

October 13, 2017, OWCP denied modification of its July 18, 2016 decision. It found that the 

medical evidence submitted was insufficient to establish that the accepted employment injury 

caused, contributed to, or aggravated the diagnosed conditions to the point of total disability for 

the claimed period of October 3, 2011 through January 6, 2012. OWCP additionally found that 

the evidence supported that appellant was terminated for cause due to attendance issues that 

 

4 Docket No. 17-1860 (issued January 11, 2018). 

5 By separate decision also dated July 18, 2016, OWCP denied appellant’s claim for recurrence of disability due to 

a change in the nature and extent of his light-duty job requirements or withdrawal of a light-duty assignment made 

specifically to accommodate appellant’s work-related injury without misconduct. It found that appellant was removed 

from the job he held because his attendance was not irregular and for other causes, not because of his employment 

injury. On June 29, 2017 appellant requested reconsideration of OWCP’s July 18, 2016 decision denying his 

recurrence claim.5 By decision dated August 1, 2017, OWCP denied appellant’s request for reconsideration. 

Appellant appealed to the Board. By decision dated January 11, 2018, the Board affirmed OWCP’s August 1, 2017 

nonmerit decision. Id. 
3

occurred prior to the employment incident and was not due to disability as a result of the accepted 

employment incident. 

On May 30, 2018 appellant requested reconsideration of the October 13, 2017 decision. 

Evidence received in support of his request included requests for authorization, physical therapy 

notes, notes regarding the scheduling of medical treatment or evaluation, and diagnostic testing. 

An August 7, 2017 magnetic resonance imaging (MRI) scan of the lumbosacral spine, reported 

small central disc protrusion at L5-S1 and loss of the normal lumbar lordosis, an August 14, 2017 

MRI scan of the cervical spine noted abnormal findings, and a March 25, 2016 electromyogram 

and nerve conduction velocity (EMG/NCV) study, indicated abnormal findings with evidence of 

right sided acute to chronic C5-6 polyradiculopathy. 

In a September 1, 2017 report, Dr. Ivette Ostolaza, a family practitioner, noted the history 

of the August 25, 2011 employment incident, appellant’s medical course, and presented 

examination findings. A diagnosis of lumbar disc derangement, lumbar disc herniations and 

lumbar radiculopathy was provided. 

In medical reports dated February 19, March 7, April 2, May 3, July 9, and December 6, 

2018 and January 17, 2019, Dr. Mark A. Seldes, a Board-certified family practitioner, were 

received. He noted the August 25, 2011 employment incident, appellant’s medical history, and 

his examination findings and diagnosed lumbar radiculopathy with bilateral lower extremity 

radicular symptoms in an L5-S1 distribution, cervical radiculopathy with bilateral C5-C6 radicular 

distribution, and bilateral carpal tunnel syndrome. Dr. Seldes also presented treatment plans. 

In his February 19, 2018 report, Dr. Seldes opined that appellant was disabled from work 

on January 11, 2012 due to the injuries he had from the pit bull attack as well as the injury of 

falling into his vehicle during the attack. In his April 2 and May 3, 2018 reports, he opined that 

appellant was disabled on January 11, 2012 due to the injuries he suffered while at work. In his 

July 9, 2018 report, Dr. Seldes requested that the diagnoses of cervical radiculopathy, which 

occurred on the date of injury, and carpal tunnel syndrome be accepted. He explained that the 

carpal tunnel syndrome developed over the course of appellant’s employment as a city letter carrier 

and his symptoms had worsened by the time of his employment incident.

By decision dated January 30, 2019, OWCP denied appellant’s request for reconsideration 

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

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 own motion or on application.6

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

 

6 5 U.S.C. § 8128(a); see also A.B., Docket No. 18-0596 (issued August 5, 2019); D.L., Docket No. 09-1549 (issued 

February 23, 2010); W.C., 59 ECAB 372 (2008).
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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.7

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.8 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.9 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.10

ANALYSIS

The Board finds that this case is not in posture for decision. 

The last merit decision in this case was OWCP’s October 13, 2017 decision, which found 

that the medical evidence of record did not establish that the accepted employment injury caused 

disability during the claimed period of October 3, 2011 through January 6, 2012, and that appellant 

was terminated for cause due to attendance issues that occurred prior to the accepted employment 

incident. 

Following the October 13, 2017 decision appellant requested reconsideration on May 30, 

2018 and submitted additional medical evidence.

By decision dated January 30, 2019, 245 days after the reconsideration request, OWCP 

found that the evidence submitted with the May 30, 2018 request for reconsideration was irrelevant 

or immaterial to the underlying disability issue. OWCP’s procedures provide a timeliness goal for 

issuing reconsideration decisions within 90 days from the receipt of the request.11 As OWCP’s 

January 30, 2019 decision was issued more than 90 days after it received appellant’s request for 

reconsideration, the question becomes whether the delay has impacted appellant’s ability to file a 

timely request for reconsideration of the merits of his case under 5 U.S.C. § 8128(a).12 Had OWCP 

issued the reconsideration decision within its 90-day timeliness goal, appellant would have had an 

additional 46 days to seek review under the criteria set forth for a timely request for reconsideration

with OWCP. Here, the delay has impacted appellant’s ability to bring a timely request for 

reconsideration of OWCP’s October 13, 2017 merit decision. Any further requests for 

reconsideration would be untimely as they would be filed more than one year following the 

October 13, 2017 merit decision. The standard of review for an untimely request for 

 

7 20 C.F.R. § 10.606(b)(3); see A.B., id., L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 

08-1569 (issued December 9, 2008).

8 20 C.F.R. § 10.607(a).

9

Id. at § 10.608(a); see D.L., Docket No. 18-0449 (issued October 23, 2019); see also M.S., 59 ECAB 231 (2007).

10 Id. at § 10.608(b); see D.L., id.; E.R., Docket No. 09-1655 (issued March 18, 2010).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(c) (October 2011).

12 E.I., Docket No. 18-0634 (issued January 23, 2019) (the Board ordered a merit review where OWCP delayed its 

reconsideration decision more than 90 days from the receipt of the request). 
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reconsideration requires appellant to demonstrate clear evidence of error. The Board has 

repeatedly held that clear evidence of error is intended to represent a difficult standard.13

Therefore, the Board finds that this case is not in posture for decision. To preserve 

appellant’s right to file a timely request for reconsideration this case will be remanded to OWCP 

for a merit review of the evidence of record followed by an appropriate decision. 

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further action 

consistent with this decision. 

Issued: January 16, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 P.L., Docket No. 18-0813 (issued November 20, 2018); W.R., Docket No. 09-2336 (issued June 22, 2010).