United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Meyersdale, PA, Employer

__________________________________________

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Docket No. 18-0449

Issued: October 23, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 29, 2017 appellant, through counsel, filed a timely appeal from a 

November 2, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).

2

 Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction to review the November 2, 2017 nonmerit 

decision.

 

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 record also includes a September 26, 2017 merit decision, which affirmed a schedule award for two percent 

permanent impairment of the left lower extremity. As counsel did not challenge OWCP’s September 26, 2017 merit 

decision, the Board will not exercise jurisdiction over that particular decision.

3

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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On October 17, 2011 appellant, then a 40-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, he injured his left knee and foot when walking up 

steps while in the performance of duty. On November 8, 2011 he underwent left knee arthroscopic 

medial meniscal debridement. By decision dated November 21, 2011, OWCP accepted appellant’s

traumatic injury claim for left knee medial meniscus tear. It also authorized his recent left knee 

arthroscopic procedure.

On December 9, 2015 appellant filed a claim for a schedule award (Form CA-7).

In support of his claim, appellant provided a November 30, 2015 impairment evaluation 

from Dr. Gerald E. Dworkin, a physical medicine and rehabilitation specialist. Dr. Dworkin

indicated that appellant reached maximal medical improvement. He noted appellant’s history of 

injury and treatment and utilized the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides).4 Dr. Dworkin referenced Table 16-3, 

Knee Regional Grid, A.M.A., Guides 509-11, and found 12 percent left lower extremity permanent 

impairment based on a diagnosis of meniscal injury.

In a May 16, 2016 report, OWCP’s district medical adviser (DMA) found one percent left 

lower extremity permanent impairment under Table 16-3 based on a diagnosis of “partial 

meniscectomy.”

5

OWCP subsequently declared a conflict in medical opinion, and referred appellant to an 

impartial medical examiner (IME) to resolve the conflict.

In an August 9, 2016 report, Dr. Michael D. Wolk, a Board-certified physiatrist and IME, 

noted appellant’s history of injury and treatment and determined that he had two percent left lower 

extremity permanent impairment under Table 16-3 based on a diagnosis of “partial medial 

meniscal injury status post meniscectomy.”

6

On December 8, 2016 a second DMA reviewed the relevant evidence, including the IME’s 

August 9, 2016 impairment rating, and concurred with the finding of two percent left lower 

extremity permanent impairment under Table 16-3, A.M.A., Guides, page 509.

 

4 A.M.A., Guides(6th ed. 2009).

5

Id. at 509.

6

Id.
3

By decision dated January 18, 2017, OWCP granted a schedule award for two percent 

permanent impairment of the left lower extremity, which amounted to 5.76 weeks of compensation

beginning August 9, 2016.

On January 24, 2017 appellant, through counsel, requested a telephonic hearing, which was 

held on July 13, 2017. 

In an August 31, 2017 report, Dr. Dworkin reiterated his impairment evaluation rating of 

12 percent permanent impairment of the left lower extremity.

By decision dated September 26, 2017, the hearing representative affirmed the January 18, 

2017 decision, finding that the additional August 31, 2017 report from Dr. Dworkin was 

insufficient to overcome the special weight accorded to IME Dr. Wolk. 

On October 26, 2017 appellant, through counsel, requested reconsideration and attached 

copies of Dr. Dworkin’s reports dated November 30, 2015 and August 31, 2017.

By decision dated November 2, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of his claim.

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.7

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.8

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

OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.10 If the request is timely, but fails to meet at least one of the 

 

7

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

8

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

No. 08-1569 (issued December 9, 2008).

9

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. Id. at Chapter 2.1602.4b.

10 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
4

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.11

ANALYSIS

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

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

The October 26, 2017 request for reconsideration neither alleged nor demonstrated that 

OWCP erroneously applied or interpreted a specific point of law. Additionally, it did not advance 

any relevant legal arguments not previously considered by OWCP. The Board thus finds that 

appellant is not entitled to a review of the merits based on the first and second requirements under 

section 10.606(b)(3).12

Counsel also failed to submit any “relevant and pertinent new evidence” with the

October 26, 2017 request for reconsideration. Attached to his request for reconsideration were 

identical copies of the November 30, 2015 and the August 31, 2017 reports which were previously 

considered by OWCP. Providing additional evidence that either repeats or duplicates information 

already in the record does not constitute a basis for reopening a claim.13 As these reports were 

previously considered and reviewed by OWCP in the prior decision, appellant is not entitled to a 

review of the merits based on the third requirement under section 10.606(b)(3).14 

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.15

CONCLUSION

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

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

 

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

12 Id. at § 10.606(b)(3)(i) and (ii).

13 James W. Scott, 55 ECAB 606, 608 n.4 (2004).

14 20 C.F.R. § 10.606(b)(3)(iii).

15 A.F.,Docket No. 18-1154 (issued January 17, 2019);see A.R., Docket No. 16-1416 (issued April10, 2017); A.M.,

Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); 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 20 C.F.R. § 10.606(b), OWCP will deny the application for reconsideration 

without reopening the case for a review on the merits).
5

ORDER

IT IS HEREBY ORDERED THAT the November 2, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 23, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board