United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lakewood, NJ, Employer 

__________________________________________ 

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Docket No. 16-1866 

Issued: January 17, 2017 

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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 20, 2016 appellant, through counsel, filed a timely appeal from a July 6, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision, dated July 8, 2014, 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 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 

under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

The case has previously been before the Board.3

 The facts of the case as presented in the 

prior order are incorporated herein by reference. The relevant facts are as follows. 

On June 11, 2013 appellant, then a 36-year-old letter carrier, filed a recurrence claim 

(Form CA-2a) concerning a prior injury. On September 5, 2013, however, OWCP determined 

that appellant was in fact alleging that he sustained a new injury on May 14, 2013. By decision 

dated October 21, 2013, it denied appellant’s claim, finding that the evidence of record failed to 

establish that a May 14, 2013 injury occurred as alleged. 

Appellant requested a hearing which was held on April 22, 2014. By decision dated 

July 8, 2014, the hearing representative affirmed OWCP’s October 21, 2013 decision. 

By letter dated April 8, 2015, counsel notified OWCP that he had submitted a request for 

reconsideration on appellant’s behalf on October 8, 2014. By decision dated July 21, 2015, 

OWCP denied appellant’s April 8, 2015 reconsideration request, finding that it was timely filed 

but insufficient to warrant further merit review. 

Appellant appealed to the Board. On January 28, 2016 the Board set aside the July 21, 

2015 decision and remanded the case to OWCP. The Board found that the case record was 

incomplete as it was missing the April 22, 2014 hearing transcript as well as the October 8, 2014 

request for reconsideration that counsel contended he had previously submitted. It was unclear 

whether additional evidence was also missing from the record. The Board, therefore, directed 

OWCP to properly assemble the case record and, after reviewing all evidence associated with the 

claim, issue an appropriate decision. 

The current case record reflects that on August 31, 2015 OWCP received an October 8, 

2014 letter from counsel requesting reconsideration. With the October 8, 2014 letter were two 

medical reports from Dr. Samuel Epstein, an osteopath, dated August 15 and 

September 30, 2015. Both reports are in the case record, and were received by OWCP on 

August 31, 2015. 

By decision dated July 6, 2016, OWCP found that the evidence of record did not support 

that it received a request for reconsideration dated October 8, 2014. Rather, it noted that the 

earliest request for reconsideration of the July 8, 2014 decision received in the file was the 

request of April 8, 2015. In addition, OWCP held that it did not receive any documents during 

the period July 9, 2014 through April 7, 2015, and the only medical evidence received after the 

July 8, 2014 merit decision were the reports of Dr. Epstein received on August 31, 2015, “more 

than one month after the nonmerit decision of [July 21, 2015] was issued.” As a result, it found 

 3 Order Remanding Case, Docket No. 15-1921 (issued January 28, 2016). 
3

that the evidence of record failed to support that it erred in refusing to consider the merits of the 

July 21, 2015 decision. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

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 evidence not previously considered by OWCP.”5 

20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.6

ANALYSIS 

In the present case, the issue is whether OWCP properly denied appellant’s request for 

reconsideration. OWCP acknowledged that counsel had submitted a reconsideration request as 

of April 8, 2015, which is timely with respect to the July 8, 2014 merit decision. 

The record contains new medical evidence from Dr. Epstein submitted on 

August 31, 2015. The Board finds that OWCP failed to review this evidence. The case was 

remanded by the Board to properly assemble the case record and issue an appropriate decision. 

The evidence now before OWCP showed a timely request for reconsideration and additional 

medical evidence submitted after the July 8, 2014 merit decision. OWCP was obligated to 

consider all evidence properly submitted by the claimant and received by OWCP before the final 

decision was issued.7 

OWCP was required to review the medical evidence from Dr. Epstein in its July 6, 2016 

decision and determine whether appellant was entitled to a merit review. The Board finds that it 

failed to do so. The case will, therefore, be remanded to OWCP for a proper decision with 

respect to the timely reconsideration request, pursuant to 20 C.F.R. § 10.606(b)(3). 

CONCLUSION 

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

 4

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application”). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

7 See J.C., Docket No. 15-1666 (issued October 29, 2015); William A. Couch, 41 ECAB 548 (1990). 
4

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 6, 2016 is set aside and the case is remanded for further 

action consistent with this decision of the Board. 

Issued: January 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board