United States Department of Labor

Employees’ Compensation Appeals Board

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S.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer

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Docket No. 19-0479

Issued: August 8, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 27, 2018 appellant filed a timely appeal from a July 26, 2018 nonmerit

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

elapsed from OWCP’s last merit decision, dated April 16, 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 to review the merits of this case.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).

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On February 20, 2018 appellant, then a 66-year-old casual mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that on December 16, 2017 she injured her left hip when 

pushing loaded all-purpose containers (APCs), some with bad wheels, into dumpers while in the 

performance of duty. She noted that Supervisor D.S., an operations support specialist, saw her 

leave the work area in tears because of the pain. On December 18, 2017 appellant resigned from 

the employing establishment.

OWCP received a March 2, 2018 letter from the employing establishment challenging the 

claim. No other information was received.

In a development letter dated March 6, 2018, OWCP informed appellant that the evidence 

of record was insufficient to establish her claim. It noted that the evidence did not establish that 

the December 16, 2017 incident occurred as alleged. OWCP advised appellant of the factual and 

medical evidence necessary to establish her claim and provided a questionnaire for completion. It 

also requested that she clarify whether she was claiming an occupational disease or a traumatic 

injury. OWCP afforded appellant 30 days to provide the necessary factual information and 

medical evidence.

OWCP received a March 19, 2018 statement from the employing establishment along with 

a March 2, 2018 statement from D.S., who had walked appellant to the time clock on the date of 

the incident. D.S. indicated that appellant had complained that she was sore due to her age and 

the physical aspects of her job, but that she had not mentioned that she was injured. He also noted 

that appellant indicated that she might resign as the job was too much for her.

In support of her claim, appellant submitted a December 17, 2017 emergency department 

note from Dr. Justin L. Benoit, a Board-certified emergency medical specialist. Dr. Benoit 

reported that appellant had been performing a new job pushing large heavy crates and that certain 

movements worsened her pain, but that she had no significant trauma. He provided an impression 

of left hip pain. 

Appellant also submitted a December 17, 2017 left hip x-ray which showed mild arthrosis 

of the pubic symphysis and bilateral S1 joints, but no acute osseous abnormality.

By decision dated April 16, 2018, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish that the December 16, 2017 incident occurred as 

alleged. It explained that she had not responded to its March 6, 2018 questionnaire regarding how 

the alleged injury occurred. OWCP also noted that appellant had not submitted sufficient medical 

evidence to establish a diagnosed condition causally related to the alleged incident. It concluded, 

therefore, that the requirements had not been met to establish an injury as defined by FECA.

In a January 9, 2018 report, Dr. Clyde E. Henderson, a Board-certified orthopedic surgeon, 

noted that appellant reported injuring her left groin/hip region while pushing carts of mail and 

packages while working as a seasonal worker for the employing establishment. He indicated that 

this happened after she worked for 17 days and that she had resigned after the pain became worse. 

Dr. Henderson noted left hip examination findings, reviewed x-ray findings, and provided an 
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assessment of left hip strain. In a March 15, 2018 report, he again diagnosed a left hip strain. 

Dr. Henderson indicated that he had discussed with appellant the etiology of her pain and how it 

related to her employment activity. He ordered a lift hip magnetic resonance imaging (MRI) scan,

noting that he would have expected a soft-tissue injury to have resolved by now.

An April 4, 2018 MRI scan of the left hip revealed gluteus medius/minimus tendinosis 

without evidence of a focal tear and mild diffuse degenerative chondral thinning of the left hip.

In an April 17, 2018 report, Dr. Nicholas Mirkopoulos, a Board-certified orthopedic 

surgeon, noted that appellant, a patient of Dr. Henderson, had a work-related injury in 

December 2017 and retired. He reported the results of the x-rays and the MRI scan and noted 

examination findings. Dr. Mirkopoulos opined that the gluteus medius injury was directly related 

to the December 2017 employment-related injury.

OWCP also received February 23 and March 8, 2018 physical therapy notes and other 

medical evidence pertaining to a left elbow condition.

On April 30, 2018 appellant requested reconsideration. In an April 26, 2018 statement, she 

discussed the medical evidence submitted and her symptoms.

By decision dated July 26, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a). It determined that the evidence submitted 

was irrelevant to the issue of whether she established a factual basis for her claim.

LEGAL PRECEDENT

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

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 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.5

A timely application 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 

 

3 This section provides in pertinent part: the 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).

4 20 C.F.R. § 10.607.

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Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.

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). Chapter 2.1602.4b.
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considered by OWCP.6 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, it will deny the request for reconsideration without reopening the 

case for a review on the merits.7

In support of a request for reconsideration, a claimant is not required to submit all evidence 

which may be necessary to discharge his or her burden of proof.8 He or she needs only to submit 

relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an OWCP 

decision denying a 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.10

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).11

The underlying issue in this case was whether appellant had established the factual 

component of fact of injury. OWCP denied her claim finding that she had not submitted a 

statement describing how the alleged injury occurred on December 16, 2017. It also found that 

the medical evidence was insufficient to establish a diagnosed condition casually related to the 

alleged incident.

On reconsideration, appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, nor did she advance a relevant legal argument not previously considered 

by OWCP. Consequently, she is not entitled to a review of the merits of her claim based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).12

Along with her reconsideration request, appellant submitted physical therapy notes, an 

April 4, 2018 MRI scan of the left hip, and medical reports from Dr. Henderson and

Dr. Mirkopoulos. Dr. Henderson, in his January 9, 2018 report, provided a history of injury of 

appellant injuring her left groin/hip region while pushing carts of mail and packages after working 

17 days for the employing establishment. He also provided an assessment of left hip strain. The 

Board finds that Dr. Henderson’s report is new and relevant to the underlying issue of fact of injury

because he includes a detailed account of the factual basis of the alleged injury and therefore the 

 

6 20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8 P.L., Docket No. 18-1145 (issued January 4, 2019); Helen E. Tschantz, 39 ECAB 1382 (1988).

9 See S.A., Docket No. 18-1638 (issued April 5, 2019); S.S., Docket No. 18-0647 (issued October 15, 2018).

10 P.L., supra note 8; Annette Louise, 54 ECAB 783 (2003).

11 See A.G., Docket No. 18-1720 (issued May 7, 2019); C.F., Docket No. 18-0583 (issued October 16, 2018).

12 T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008).
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refusal of OWCP to reopen appellant’s case for further consideration of the merits of her claim 

constituted an abuse of discretion.13 

Thus, the Board will set aside OWCP’s July 26, 2018 decision and remand the case for 

merit review of appellant’s claim. After such further development as is deemed necessary, OWCP 

shall issue an appropriate merit decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 26, 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: August 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 See A.G., supra note 11; L.N., Docket No. 12-1326 (issued November 21, 2012); see also Federal (FECA) 

Procedure Manual, supra note 5 at Chapter 2.810.6 (September 2010) (to obtain merit review, a claimant need not 

submit all evidence that may be necessary to discharge his burden of proof); Helen E. Tschantz, 39 ECAB 1382 (1988); 

V.B., Docket No. 12-1057 (issued October 23, 2012).