United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.U., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 19-1089

Issued: November 5, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

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 April 17, 2019 appellant, through counsel, filed a timely appeal from a December 17, 

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 May 15, 2018, to the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R.

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.2 

 

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 The Board notes that following the December 17, 2018 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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.

3

 The facts and circumstances of the case 

as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The 

relevant facts are as follows.

OWCP accepted that on March 26, 1985 appellant, then a 39-year-old mail handler, 

sustained strains of the neck (cervical) and left shoulder, and a left ulnar nerve injury, when lifting 

sacks of mail while in the performance of duty. It assigned this claim OWCP File No. xxxxxx154. 

In a January 13, 1998 decision, OWCP adjusted appellant’s compensation to reflect her actual 

earnings as a modified distribution clerk working 20 hours a week.

OWCP also accepted that on May 21, 2008 appellant sustained an aggravation of right 

lateral epicondylitis while pushing a steel bar. It assigned this claim OWCP File No. xxxxxx741.

When this case was last before the Board, by order dated April 26, 2017, the case was 

remanded to OWCP to combine File No. xxxxxx154 and File No. xxxxxx741.4 Following the 

Board’s April 26, 2017 remand order OWCP combined the two claim files on August 10, 2017.

By decision dated August 24, 2017, OWCP noted that it had combined File No. xxxxxx741 

with File Nos. xxxxxx860,5 xxxxxx530,6and xxxxxx154, with the latter serving as the master file. 

It reviewed the medical evidence in all files and terminated appellant’s medical benefits for 

cervical sprain, left shoulder sprain, and right lateral epicondylitis, effective August 24, 2017. 

Medical benefits for left ulnar neuropathy continued. The August 27, 2017 decision was affirmed 

by an OWCP hearing representative on May 15, 2018.

 

3 Docket No. 06-1087 (issued May 1, 2007) (affirmed OWCP’s denial of a January 18, 2005 recurrence of 

disability); Docket No. 07-1422 (issued October 3, 2007) (order remanding case for consolidation of OWCP File Nos. 

xxxxxx530, xxxxxx154, and xxxxxx860); Docket No. 08-2147 (issued September 16, 2009) (under File No. 

xxxxxx154, case remanded for further development of occupational disease claim for aggravation of ulnar nerve 

damage, carpal tunnel syndrome (CTS), and complex regional pain syndrome (CRPS)); Docket No. 10-2280 (issued 

August 16, 2011) (case again remanded for further development of occupational disease claim); Docket No. 13-2130 

(issued May 1, 2014) (order remanding case because OWCP did not comply with Board’s October 3, 2007 remand 

order); Docket No. 15-0609 (issued April 26, 2017) (order remanding case to combine File No. xxxxxx154 and File 

No. xxxxxx741).

4

Id.

5 OWCP File No. xxxxxx860 concerns a March 14, 2002 occupational injury claim which OWCP accepted for right 

lateral epicondylitis.

6 OWCP File No. xxxxxx530 concerns a January 17, 2005 occupational injury claim which OWCP accepted for 

complications of medical care.
3

OWCP received occupational therapy reports from 2008 and 2012. 

On November 29, 2018 appellant, through counsel, requested reconsideration. He also 

asserted that OWCP had not issued a de novo decision relative to its November 5, 2014 denial of 

a schedule award claim. 

By decision dated December 17, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of the claim.

LEGAL PRECEDENT

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

matter of right.7 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.8 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.9

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (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.10 When a timely application for reconsideration does not meet at least one 

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

reopening the case for a review on the merits.11

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).

With her timely request for 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. Rather, counsel merely asserted that OWCP had failed to rule 

upon appellant’s January 28, 2015 request for reconsideration of the November 5, 2014 schedule 

award decision.

12

 Section 501.2(c) of the Board’s Rules of Procedure, provides that the Board has 

 

7 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.607.

9

Id. at § 10.607(a). 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

10 20 C.F.R. § 10.606(b)(3); see J.B., Docket No. 18-1531 (issued April 11, 2019). 

11 20 C.F.R. § 10.608.

12 The Board notes that on January 28, 2015 appellant filed an application of review of September 17 and 

November 5, 2014 OWCP merit decisions. OWCP has not, however, issued a decision regarding the request for 

reconsideration of the November 5, 2014 decision.
4

jurisdiction to consider and decide appeals from the final decision of OWCP in any case arising 

under FECA.

13

 The Board concludes that OWCP has not issued any other decision within the 

Board’s jurisdiction following OWCP’s November 5, 2014 decision. In her reconsideration 

request, appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, nor did she advance a new and relevant legal argument not previously considered regarding 

OWCP’s May 15, 2018 decision. Accordingly, she is not entitled to a review of the merits of her 

claim based on the first and second above-noted requirements under section 10.606(b)(3).

Additionally, appellant has not submitted relevant and pertinent new evidence not

previously considered by OWCP. The underlying issue in this case is whether she has submitted 

sufficient evidence to modify a May 15, 2018 OWCP decision which found that residual of the 

accepted conditions of cervical sprain, left shoulder sprain, and right lateral epicondylitis had 

ceased. Because the underlying issue in this case is medical in nature, it must be addressed by

relevant medical evidence, and the only medical evidence submitted by appellant subsequent to 

the May 15, 2018 decision, consisted of occupational therapy notes. As she has not submitted 

relevant and pertinent new evidence on appeal, appellant is not entitled to a review of the merits 

of her claim based on the third requirement under section 10.606(b)(3).

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). 

 

13 20 C.F.R. § 501.2(c).
5

ORDER

IT IS HEREBY ORDERED THAT the December 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 5, 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