United States Department of Labor

Employees’ Compensation Appeals Board

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B.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA 

PITTSBURGH CENTER-UNIVERSITY DRIVE,

Pittsburgh, PA, Employer

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Docket No. 20-0761

Issued: January 29, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 20, 2020 appellant, through counsel, filed a timely appeal from a 

December 21, 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 

November 20, 2018, to the filing of this appeal, pursuant to Federal Employees’ Compensation 

Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of 

this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
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

On February 8, 2017 appellant, then a 56-year-old medical technician, filed a traumatic 

injury claim (Form CA-1) alleging that on February 3, 2017 she injured her right knee while in the 

performance of duty. She explained that, when she stepped down from a stool she was sitting on,

her knee popped and then began to swell a few minutes later. On the reverse side of the claim 

form the employing establishment indicated that appellant was injured in the performance of duty.

February 16, 2017 progress notes by Dr. Joseph Dougherty, an osteopathic physician

Board-certified in family medicine, indicated that appellant presented with right knee pain and 

swelling that started when she stepped down from a stool at work and heard her knee pop. 

Appellant’s physical examination revealed right knee joint line tenderness. Dr. Dougherty 

diagnosed a right knee effusion. In a March 2, 2017 report, he diagnosed a right knee effusion and 

meniscus tear. An April 5, 2017 work status note from Dr. Dougherty related a diagnosis of right 

knee effusion. 

A March 15, 2017 duty status report (Form CA-17) containing an illegible signature

indicated that appellant injured her right knee when she rolled from a chair while standing up. 

Clinical findings included a right knee effusion and meniscus tear and light-duty restrictions were 

provided. On March 17, 2017 appellant accepted a light-duty assignment.

3

An April 6, 2017 medical report by Dr. Brianna Bayer, Board-certified in family medicine, 

indicated that appellant wore a right knee brace due to a work injury. Appellant had related that 

on April 1, 2017 she was getting into her car when she “overcompensated” and felt a pop in her 

left knee. Physical examination of appellant’s right knee revealed normal results.

April 26, 2017 progress notes by Dr. Brian Mosier, Board-certified in orthopedic surgery, 

indicated that appellant presented with right knee pain following a February 3, 2017 work injury.

Appellant’s physical examination of the right knee revealed effusion, tenderness in the medial joint

line and patella, and positive patellofemoral grind. Dr. Mosier indicated that a magnetic resonance 

imaging (MRI) scan of appellant’s right knee revealed a meniscus tear and edema, areas of highgrade chondrosis, an effusion, and degeneration. He opined that appellant’s pain was likely 

contributed to her underlying osteoarthritis of the medial and patellofemoral compartment.

Appellant followed up with Dr. Mosier on June 30, 2017, at which time he conducted a physical 

examination, reviewed radiology studies, and diagnosed a right knee medial meniscal tear and 

osteoarthritis. Dr. Mosier repeated that appellant’s pain was likely contributed to by her 

underlying osteoarthritis of the medial and patellofemoral compartment. Appellant continued to 

follow up with Dr. Mosier, who continued to diagnose a right medial meniscus tear.

 

3 OWCP received medical evidence regarding an alleged consequential injury to appellant’s left knee.
3

A June 22, 2017 report of work status (Form CA-3) from the employing establishment

indicated that appellant returned to full-time regular-duty work on April 6, 2017. 

In an August 17, 2017 development letter, OWCP informed appellant that additional 

evidence was required to establish her claim. It advised her of the type of factual and medical 

evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP 

afforded appellant 30 days to submit the requested evidence.

August 17, 2017 progress notes by Dr. Brian Moore, a Board-certified orthopedic surgeon, 

indicated that appellant presented with right knee pain. A right knee examination revealed trace 

effusion, joint-line tenderness, limited range of motion, a right knee x-ray revealed joint space 

narrowing of the medial compartment, and Dr. Moore additionally reviewed the results of 

appellant’s previous right knee MRI scan. Dr. Moore diagnosed right knee medial meniscal tear 

and degenerative disc disease and opined that appellant’s achiness and pain may be due to her 

arthritis, and her meniscus tear may be exacerbating her symptoms. He referred appellant for 

physical therapy.

By decision dated September 29, 2017, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that her diagnosed conditions were 

causally related to her accepted February 3, 2017 employment incident.

On October 16, 2017 appellant requested a review of the written record by a representative

of OWCP’s Branch of Hearings and Review. 

Appellant continued to follow up with Dr. Moore, who continued to diagnose a right 

medial meniscus tear and underlying arthritis in his medical reports and a right medial meniscus 

tear in his work status notes. 

In a March 21, 2018 letter, Dr. Dougherty indicated that on February 3, 2017 appellant felt 

her knee buckle and pop when she got up off a stool, which could directly lead to a medial meniscus 

tear. He additionally stated that her current right knee symptoms were directly related to her

employment injury. 

By decision dated November 20, 2018, an OWCP hearing representative affirmed the 

September 29, 2017 OWCP decision. 

On November 21, 2019 appellant, through then-counsel, requested reconsideration. In an 

attached letter, then-counsel indicated that there was an enclosed affidavit. No affidavit was 

received. 

By decision dated December 21, 2019, OWCP denied appellant’s request for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
4

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.4

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.5

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

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 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.8

ANALYSIS

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

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

Appellant filed a timely request for reconsideration on November 21, 2019. The Board 

finds, however, that she did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP. 

Accordingly, the Board finds that appellant is not entitled to a review of the merits based on either 

the first or second requirement under 20 C.F.R. § 10.606(b)(3).9

 

4 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); see L.D., Docket No. 18-1468 (issued 

February 11, 2019); W.C., 59 ECAB 372 (2008).

5 20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); see also L.G., Docket No. 09-

1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

6

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). Id. at Chapter 2.1602.4b.

7

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see C.L., Docket No. 20-0385 (issued August 5, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

9 Supra note 4.
5

Appellant also failed to submit relevant and pertinent new evidence in support of her 

November 21, 2019 request for reconsideration. The underlying issue is whether the medical 

evidence of record is sufficient to establish a causal relationship between the accepted employment 

incident and a diagnosed medical condition. This is a medical question that requires rationalized 

medical opinion evidence to resolve the issue.10 However, appellant did not submit any additional 

evidence with her request for reconsideration. Because she did not provide any relevant and 

pertinent new evidence, she is not entitled to a review of the merits based on the third requirement 

under 20 C.F.R. § 10.606(b)(3).11

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

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

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

 

10 See J.H., Docket No. 18-0932 (issued March 24, 2020); E.T., Docket No. 14-1087 (issued September 5, 2014).

11 20 C.F.R. § 10.606(b)(3)(iii).
6

ORDER

IT IS HEREBY ORDERED THAT the December 21, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board