United States Department of Labor

Employees’ Compensation Appeals Board

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K.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Nyssa, OR, Employer

__________________________________________

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Docket No. 19-0608

Issued: September 4, 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 January 25, 2019 appellant, through counsel, filed a timely appeal from a November 14, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated February 2, 2018, which became final after 30 

days of issuance and is not subject to further review.2 As there was no merit decision issued by 

OWCP within 180 days of the filing of this appeal, pursuant to the Federal Employees’

 

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 20 C.F.R. § 501.6(d); see J.R., Docket No. 19-0364 (issued July 3, 2019); A.F., Docket No. 18-0645 (issued 

October 26, 2018).
2

Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to 

review the merits of this case.4

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.5 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On March 26, 2014 appellant, then a 53-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, she hyperextended her left knee when she 

tripped over tubs of mail while in the performance of duty. She stopped work that day. OWCP 

accepted the claim for left knee sprain. Appellant received wage-loss compensation on the 

supplemental rolls for temporary total disability commencing May 3, 2014.

6

On March 11, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated July 8, 2016, OWCP denied appellant’s claim for a schedule award as 

the evidence of record was insufficient to establish permanent impairment of a scheduled member 

due to the accepted employment injury. 

On July 21, 2016 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. By decision dated May 5, 2017, an OWCP hearing representative 

affirmed the July 8, 2016 decision denying appellant’s claim for a schedule award. He found that 

appellant had no residual permanent impairment due to the accepted left knee sprain. 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that, following the November 14, 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.

5 Docket No. 17-1650 (issued February 2, 2018). 

6 On January 21, 2015 OWCP issued a notice of proposed termination of wage-loss compensation and medical 

benefits, finding that a December 30, 2014 report from OWCP’s second opinion physician, Dr. Paul C. Collins, a 

Board-certified orthopedist, established that appellant no longer had disability or residuals causally related to the 

accepted employment injury. By decision dated March 10, 2015, it terminated all compensation benefits, effective 

March 9, 2015, as the weight of the medical evidence established that appellant had no continuing disability or 

residuals of her accepted employment injury. On March 16, 2015 appellant, through counsel, requested a telephonic 

hearing before an OWCP hearing representative. By decision dated December 28, 2015, an OWCP hearing 

representative affirmed the March 10, 2015 termination decision finding that the weight of the medical opinion 

evidence rested with OWCP’s second opinion physician, Dr. Collins. 
3

Appellant, through counsel, appealed to the Board on July 25, 2017. By decision dated 

February 2, 2018, the Board affirmed the May 5, 2017 merit decision, finding that appellant had 

failed to provide medical evidence sufficient to establish permanent impairment of her left knee 

causally related to the accepted employment injury. 

OWCP received a May 8, 2018 x-ray report from Dr. Brian McMahan, a Board-certified 

diagnostic radiologist, who interpreted findings from appellant’s left knee x-ray as showing 

tricompartmental osteoarthritis of the left knee, advanced in the medial compartment. 

On July 2, 2018 appellant filed a claim for a schedule award (Form CA-7).

By letter dated July 13, 2018, OWCP advised appellant that her case was not in posture for 

decision. It noted that while appellant could request a schedule award or increased schedule award 

at any time based on evidence of a new exposure or medical evidence showing progression of an 

employment-related condition resulting in permanent impairment, radiology reports were 

insufficient to show progression of an employment-related condition resulting in permanent 

impairment or increased impairment. 

In an August 6, 2018 report, Dr. Fulton S. Chen, Board-certified in pain medicine and 

physical medicine and rehabilitation, related appellant’s history of employment injury, diagnosed 

left knee sprain, left knee meniscus tear and chondromalacia, and left knee osteoarthritis. He 

detailed the medical and factual evidence of record and provided physical examination findings. 

Using the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides)

7 Dr. Chen determined that appellant had 7 percent 

permanent impairment due to her left knee strain, 2 percent impairment for a meniscal injury, and 

28 percent permanent impairment for primary left knee osteoarthritis. 

On October 3, 2018 appellant, through counsel, requested reconsideration, noting 

submission of Dr. Chen’s August 6, 2018 report. 

By decision dated November 14, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of her claim. It found that Dr. Chen’s report failed to provide any 

discussion or rationale explaining how appellant’s permanent impairment rating was based on the 

resolved employment injury, in which it was previously determined that there were no residuals 

or continuing disability, and not on the preexisting left knee osteoarthritis and obesity. 

LEGAL PRECEDENT

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

matter of right.8 OWCP has discretionary authority in this regard and has imposed certain 

 

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

8 This section pertains in pertinent part: the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
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limitations in exercising its authority.9 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.10

Upon receipt of a timely application, OWCP exercises its discretion in accordance with the 

guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which 

provides that a claimant may obtain review of the merits of his or her written application for 

reconsideration, including all supporting documents, sets forth arguments and contain evidence 

which 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.11

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP 

without review of the merits of the claim.12

ANALYSIS

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

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

The underlying issue on appeal was whether appellant had met her burden of proof to 

establish permanent impairment of her left lower extremity due to her accepted left knee condition. 

With her reconsideration request, appellant did not attempt to show that OWCP erroneously 

applied or interpreted a specific point of law, or advance a relevant legal argument not previously 

considered by OWCP. Consequently, she was 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).

With respect to the remaining above-noted requirement under section 10.606(b)(3), 

appellant submitted new medical evidence from Dr. Chen, which addressed the relevant issue of 

permanent impairment. 

OWCP procedures and Board precedent provide that termination of a claim for all benefits 

due to a finding of no residuals of the accepted condition does not bar a subsequent schedule award. 

Rather, the claims examiner should consider the schedule award matter separately from the 

 

9 20 C.F.R. § 10.607.

10 J.R., Docket No. 19-0364 (issued July 3, 2019); C.C., Docket No. 18-0316 (issued March 14, 2019); 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. Id. at Chapter 2.1602.4(b).

11 Id. at 10.606(b)(3).

12 Id. at 10.608(b).
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termination of benefits issue.

13

 If a claimant applies for a schedule award after termination of 

compensation benefits and submits sufficient medical evidence reflecting a permanent impairment 

as a result of the work-related injury exposure, the claims examiner should further develop the 

claim.14

The Board finds that the opinion expressed in Dr. Chen’s narrative, constitutes relevant 

and pertinent new evidence not previously considered by OWCP relative to the schedule award 

claim. Dr. Chen’s opinion directly addressed the basis upon which OWCP denied appellant’s 

claim as it addressed the issue of permanent impairment due to the accepted employment injury.

15

 

In support of a request for reconsideration, a claimant is not required to submit all evidence which 

may be necessary to discharge his or her burden of proof.16 She needs only to submit relevant, 

pertinent evidence not previously considered by OWCP.17 Appellant’s request for reconsideration 

met one of the standards for obtaining a merit review of her case. Accordingly, she is entitled to 

a merit review.

The Board will, therefore, set aside OWCP’s November 14, 2018 decision and remand the 

case for an appropriate merit decision on appellant’s claim. After such further development of the 

evidence as might be necessary, OWCP shall issue an appropriate decision

CONCLUSION

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

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

 

13 L.T., Docket No. 18-1405 (issued April 8, 2019); R.H., Docket No. 17-1017 (issued December 4, 2018).

14 Id.

15 T.G., Docket No. 18-1064 (issued April 26, 2019); M.C., Docket No. 17-1983 (issued August 17, 2018).

16 T.G., id.; J.F., Docket No. 17-1508 (issued March 28, 2018).

17 See also T.G., id.; L.S., Docket No. 18-0811 (issued November 13, 2018); Mark H. Dever, 53 ECAB 710 (2002).
6

ORDER

IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board.

Issued: September 4, 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