United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.N., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Camp Hill, PA, Employer

__________________________________________

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Docket No. 19-0690

Issued: August 16, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 11, 2019 appellant, through counsel, filed a timely appeal from a January 8, 

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 January 26, 2018, 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 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 3, 2017 appellant, then a 48-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she underwent left knee arthroscopy for microfracture of 

a bone fragment, meniscus tear, and arthritis due to factors of her federal employment. She 

indicated that she first became aware of her conditions on August 8, 2016 and first realized that 

they were caused or aggravated by her federal employment on December 29, 2016. In a 

supplemental statement dated January 31, 2017 appellant noted that she previously sustained left 

knee and rib injuries and a torn muscle on the right side when she fell while delivering mail on 

January 2, 2014.3 She alleged that subsequently in July 2016 her knee pain became unbearable. 

Appellant sought medical treatment in August 2016 from Dr. Timothy S. Ackerman, an 

attending Board-certified orthopedic surgeon, who found that a magnetic resonance imaging 

(MRI) scan of the left knee showed arthritis and advised that arthroscopic surgery would provide 

some relief. Dr. Ackerman also advised that a full or partial knee replacement would eventually 

be required. Appellant underwent arthroscopic surgery on September 16, 2016. During a followup evaluation on September 26, 2016, Dr. Ackerman informed her that he had removed arthritis 

and microfracture of a bone fragment and cleaned up a meniscus tear. Appellant was released to 

return to work without restrictions on December 19, 2016. She related that on December 29, 2016

Dr. Ackerman advised her that her bone fragment could have been caused by the January 2, 2014 

fall and damaged her knee. Appellant indicated that she sustained a similar nonwork-related injury 

in December 2002 and had a meniscus tear repaired. At that time, a physician informed her that 

she had arthritis in her knee, which he cleaned out during surgery.

On the reverse side of appellant’s claim form K.H., an employing establishment supervisor, 

indicated that, while appellant claimed that her pain was unbearable by late July 2016, she had not 

worked since June 4, 2016. In addition, appellant’s new supervisors were unaware of when she 

told anyone about her claimed conditions.

In a development letter dated February 15, 2017, OWCP notified appellant of the factual 

and medical deficiencies of her claim. It provided a questionnaire for her completion regarding 

the factual elements of her claim. OWCP also requested that appellant provide a narrative medical 

report from her physician, which contained a detailed description of findings and diagnoses, 

explaining how her work activities caused, contributed to, or aggravated her medical condition. In 

a development letter of even date, it requested that the employing establishment respond to 

appellant’s allegations and provide information regarding her work stoppage, work activities, and 

job description. OWCP afforded both parties 30 days to respond.

 

3 Appellant had filed a prior traumatic injury claim (Form CA-1) for a left knee injury, which was assigned OWCP 

File No. xxxxxx425. The record indicates that OWCP accepted the claim for left knee contusion.
3

In a statement dated March 12, 2017, appellant responded to OWCP’s development 

questionnaire. She claimed that, as previously stated, her left knee discomfort started long before 

her last day of work on June 4, 2016. Appellant further claimed that she actually stopped work on

June 7, 2016 and not on June 4, 2016 due to severe migraines that were later determined to be 

caused by her neck and back issues. She maintained that she did not become aware of her meniscus 

tear until her follow-up visit with Dr. Ackerman on September 26, 2016. Appellant provided her 

employment history at the employing establishment and listed her activities outside her federal 

employment. She also submitted medical evidence and an official description of her city letter 

carrier position.

In letters dated March 15 and April 21, 2017, K.F., a human resource management 

specialist, responded to OWCP’s development letter. She noted appellant’s annual and sick leave 

balance and number of hours worked from January 14, 2012 through 2016 and contended that they 

did not reflect excessive amounts of work. K.F. further noted that her claim for her January 2, 

2014 employment-related injury under OWCP File No. xxxxxx425 had been accepted for left knee 

contusion. She asserted that appellant had not submitted medical evidence to establish her instant 

claim or immediately report her claimed injury. K.F. further asserted that appellant’s new 

supervisor was unaware of the reason for her work stoppage on June 4, 2016 when her surgery 

was not performed until September 9, 2016. She questioned how appellant maintained that she 

first became aware of her claimed work-related left knee condition on August 8, 2016 when she 

had related that she started having knee pain in January 2014 that increased in March/April 2016. 

K.F. noted that she did not stop work until June 2016 and did not seek medical treatment until 

August 2016.

In an undated letter dated D.W., appellant’s supervisor, maintained that appellant had not 

sustained a work-related injury. Appellant had not mentioned having a work-related injury when 

she requested to return to work with restrictions following her left knee surgery. D.W. noted that 

when she informed appellant that no work was available within her craft, appellant requested to 

be placed in another craft with restrictions. She replied that, since her injury was not work related, 

she could not put her into another craft without a grievance being filed. D.W. noted that appellant 

related to her that she would speak to a union representative, but instead she filed a Form CA-2.

By decision dated May 1, 2017, OWCP denied appellant’s occupational disease claim 

finding that the evidence of record was insufficient to establish the factual aspect of her claim.

On June 2, 2017 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on November 14, 2017.

OWCP thereafter received additional medical evidence.

By decision dated January 26, 2018, an OWCP hearing representative affirmed the May 1, 

2017 decision, as modified. She found that appellant had established the factual aspect of her 

claim based on her hearing testimony and evidence of record. However, the claim remained denied

as appellant had not provided a rationalized medical opinion explaining how her new or preexisting 

left knee conditions were caused or aggravated by the accepted employment factors.
4

On October 11, 2018 appellant, through counsel, requested reconsideration and submitted 

medical evidence from Dr. Scott King, a Board-certified orthopedic surgeon. In a report dated 

August 17, 2018, Dr. King reviewed the physical requirements and environmental factors of 

appellant’s city letter carrier position. He advised that appellant was not capable of performing 

the full duties of her position without restrictions, limitations, or accommodations.

In an employing establishment physician or practitioner certification for light-duty request

form also dated August 17, 2018, Dr. King excused appellant from work for the period from 

August 6 through October 29, 2018 because she had undergone revision of a total left knee 

arthroscopy on August 6, 2018. He provided a surgical follow-up report on August 29, 2018.

Appellant also submitted an additional report dated August 30, 2018 from Dr. Ackerman. 

Dr. Ackerman noted that appellant related a history that she was involved in a motor vehicle 

accident while delivering mail on June 15, 2017. He discussed physical examination findings and 

diagnosed a partial rotator cuff tear, acute strain, incomplete, adhesive capsulitis, and scapular 

dyskinesis of the right shoulder. Dr. Ackerman recommended arthroscopic surgery.

OWCP subsequently received additional reports from Dr. King. In an August 17, 2018 

report, Dr. King discussed physical examination findings and reviewed diagnostic test results. He 

provided an assessment of two weeks’ status post total left knee replacement. Dr. King indicated 

that appellant would be released to return to work the following week.

Dr. King, in a state workers’ compensation form dated August 17, 2018, noted that 

appellant’s condition of revision of total left knee arthroscopy and her incapacity approximately 

commenced on June 20, 2018. He also noted that the probable duration of her condition was 10 

days. Dr. King advised that appellant was incapacitated for the period from August 6 through 

October 19, 2018.

OWCP, by decision dated January 8, 2019, denied appellant’s request for reconsideration 

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

support of reconsideration was irrelevant or immaterial.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. It may review an award for or against payment 

of compensation at any time based on its own motion or on application.4

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence 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 If OWCP determines 

 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-

1569 (issued December 9, 2008).
5

that at least one of these requirements is met, it reopens and reviews the case on its merits.6 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.7

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’s October 11, 2018 timely request for reconsideration did not show that OWCP 

erroneously applied or interpreted a specific point of law, and did not advance a new and relevant 

legal argument not previously considered.8 Consequently, she is not entitled to further review of

the merits of her claim based on the first or second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3).9

Appellant also failed to submit relevant and pertinent new evidence not previously 

considered by OWCP under 20 C.F.R. § 10.606(b)(3). The Board notes that the underlying issue

in this case is whether she had established a left knee condition that required surgery and resulted 

in her disability due to the accepted factors of her federal employment as a city letter carrier. That 

is a medical issue which, on reconsideration, must be addressed by relevant medical evidence not 

previously considered.10

On reconsideration appellant submitted new reports from Dr. King and Dr. Ackerman. 

However, neither physician provided a relevant medical opinion as to causation. Although 

evidence submitted on reconsideration need not carry appellant’s burden entirely to suffice for 

reconsideration, the new evidence must at least be relevant and pertinent to the issue upon which 

the claim was denied.11 While this evidence is new, it does not address the underlying medical 

issue of causal relationship. Therefore, appellant also failed to satisfy the third requirement under 

20 C.F.R. § 10.606(b)(3).

 

6

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

7

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

8 Supra note 5 at § 10.606(b)(3)(i) and (ii); see also M.S., Docket No. 19-0291 (issued June 21, 2019).

9

Id.

10 See G.T., Docket No. 18-1506 (issued April 24, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

11 R.R., Docket No. 18-1562 (issued February 22, 2019); A.A., Docket No. 18-0031 (issued April 5, 2018); K.B.,

Docket No. 18-1392 (issued January 15, 2019).
6

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.12

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). 

ORDER

IT IS HEREBY ORDERED THAT the January 8, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 16, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

12 See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017); 

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not 

meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits).