United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.M., Appellant

and

U.S. POSTAL SERVICE, DEDHAM POST 

OFFICE, Dedham, MA, Employer

__________________________________________

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Docket No. 21-0901

Issued: February 15, 2022

Appearances: Case Submitted on the Record

Kelley M. Greski, for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On May 25, 2021 appellant, through counsel, filed a timely appeal from a March 8, 

2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards assigned the appeal Docket No. 21-0901.

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.

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 Docket No. 17-1157 (issued May 22, 2018).
2

On April 23, 2012 appellant, then a 49-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he sustained permanent acceleration of bilateral hip osteoarthritis 

due to factors of his federal employment.

3

On September 28, 2012 OWCP obtained a second opinion regarding the appropriate 

percentage of permanent impairment from Dr. Stanley Hom, a Board-certified orthopedic surgeon, 

who diagnosed a temporary aggravation of underlying bilateral hip arthritis that had not resulted 

in permanent impairment.

On November 7, 2012 OWCP accepted that appellant sustained temporary aggravation of 

preexisting osteoarthritis of both hips.

On February 21, 2013 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. In support of his claim, appellant submitted a December 31, 2012 report by Dr. Byron V. 

Hartunian, a Board-certified orthopedic surgeon, who examined appellant on January 5, 2012, and

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

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

4

to calculate a 63 percent permanent impairment of the 

left lower extremity and 26 percent permanent impairment of the right lower extremity.

OWCP found a conflict in the medical opinion evidence between Dr. Hartunian and

Dr. Hom regarding whether appellant sustained a temporary or permanent work -related 

aggravation of preexisting bilateral hip osteoarthritis. It referred appellant to Dr. Alan Solomon, 

a Board-certified orthopedic surgeon, for an impartial medical examination. In a September 25, 

2013 report, Dr. Solomon calculated a 25 percent permanent impairment of the left lower 

extremity for total hip arthroplasty with a good result and a 7 percent permanent impairment of the 

right lower extremity for osteoarthritis.

On January 28, 2015 OWCP expanded the accepted conditions to include acceleration of 

left hip osteoarthritis.

Following additional development and referral of the record to an OWCP district medical 

adviser (DMA), on January 27, 2016 OWCP granted appellant a schedule award for 23 percent 

permanent impairment of his left lower extremity. The award ran for 66.24 weeks, from 

September 4, 2013 through December 11, 2014.

On February 2, 2016 appellant, through counsel requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. In a February 9, 2016 letter, counsel

requested that OWCP issue subpoenas to compel the attendance of Dr. Hom, Dr. Solomon, and 

OWCP’s DMA.

By decision dated February 12, 2016, OWCP denied appellant’s claim for a right lower 

extremity schedule award, noting Dr. Solomon’s finding of temporary work-related aggravation 

of preexisting right hip osteoarthritis.

3 Appellant underwent total left hip arthroplasty on June 30, 2010.

4 A.M.A., Guides(6th ed. 2009).
3

Appellant, through counsel requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review from its February 12, 2016 decision. Counsel again requested the 

issuance of subpoenas.

In a letter dated September 23, 2016, OWCP advised appellant and counsel that the request 

for subpoenas was denied as they had failed to prove that a subpoena was the best or only method 

to obtain additional information from Dr. Hom or Dr. Solomon. It indicated that supplemental 

written reports could be obtained from the physicians if additional information was deemed 

necessary.

OWCP received a September 24, 2016 report by Dr. Justin W. Kung, a Board-certified 

radiologist, who opined that September 13, 2016 right hip x-rays demonstrated severe 

degenerative change in the right femoroacetabular compartment, with a 1.0 millimeter joint 

measurement, subchondral sclerosis, cystic changes, and osteophyte formation.

During the hearing, held on October 27, 2016 counsel argued that OWCP should expand 

its acceptance of the claim to include permanent aggravation of right hip arthritis, and that

Dr. Solomon’s opinion was insufficiently rationalized to be accorded the special weight of the 

medical evidence.

By decision dated April 12, 2017, OWCP’s hearing representative affirmed its 

February 12, 2016 decision and denied appellant’s request for the issuance of subpoenas.

Appellant, through counsel, appealed to the Board.

By decision dated May 22, 2018,5the Board affirmed OWCP’s April 12, 2017 decision 

with respect to the denial of appellant’s claim for permanent aggravation of right hip osteoarthritis 

and his request for subpoenas. The Board set aside the April 12, 2017 decision, in part, with 

respect to his claim for a schedule award for the right lower extremity, and remanded the case for 

further development to be followed by a de novo decision.

By decision dated November 9, 2018, OWCP denied appellant’s claim for a schedule 

award for permanent impairment of the right lower extremity.

On November 16, 2018 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, held March 20, 2019.

By decision dated May 1, 2019, an OWCP hearing representative affirmed the 

November 9, 2018 decision.

By decision dated January 9, 2020, OWCP granted appellant a schedule award for an 8 

percent permanent impairment of the left lower extremity in addition to the 23 percent previously 

awarded, for a total 31 percent permanent impairment. The period of the award ran for 23.04 

weeks, from October 7, 2019 through March 16, 2020.

5

Supra note 2.
4

On March 12, 2020 appellant, through counsel, requested reconsideration of the May 1, 

2019 and January 9, 2020 OWCP decisions. Counsel submitted a detailed series of arguments as 

to the insufficiency of the opinions of OWCP referral physicians. He also submitted a March 2, 

2019 x-ray report by Dr. Kung, as well as a duplicate copy of the September 24, 2016 x-ray report 

by Dr. Kung.

By decision dated March 8, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of his claim. It found counsel’s arguments repetitive of his prior statements and

Dr. Kung’s report duplicative, and thus insufficient to warrant a review of the merits of the claim.

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

On March 12, 2020 appellant, through counsel, filed a request for reconsideration of 

OWCP’s May 1, 2019 and January 9, 2020 merit decisions. However, it was not until March 8, 

2021, 361 days after he filed his request for reconsideration, that OWCP issued a decision finding 

that the evidence submitted in support of his March 12, 2020 request for reconsideration was 

insufficient to warrant a merit review.

OWCP’s procedures provide a timeliness goal for issuing reconsideration decisions within 

90 days from the receipt of the request.6 As OWCP’s March 8, 2021 nonmerit decision was issued 

more than 90 days after it received appellant’s request for reconsideration on March 12, 2020, the 

question becomes whether the delay has impacted appellant’s ability to file a timely request for 

reconsideration of the merits of his case under 5 U.S.C. § 8128(a).7 The 180-day period to appeal 

the May 1, 2019 merit decision to the Board expired on October 28, 2019, prior to appellant’s 

request for reconsideration on March 12, 2020.8 However, had OWCP issued the reconsideration 

decision within its 90-day timeliness goal, appellant would have had additional time to request 

reconsideration of the merits of the claim from either the May 1, 2019 or January 9, 2020 decisions 

under the criteria set forth for a timely request for reconsideration with OWCP, or to appeal the 

January 9, 2020 merit decision to the Board.

Therefore, the Board finds that this case is not in posture for decision. 9 To preserve 

appellant’s right to file a timely appeal to the Board or request reconsideration with OWCP, the 

case will be remanded to OWCP for a merit review of the evidence of record followed by an 

appropriate decision. Following such further development as OWCP deems necessary, it shall 

issue an appropriate merit decision. 

6 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.2(c) (September 2020).

7

S.P., Docket No. 20-0211 (Order Remanding Case, issued December 2, 2020); K.B., Docket No. 20-0037 (issued 

June 23, 2020); see G.D., Docket No. 19-0815 (issued January 16, 2020); E.I., Docket No. 18-0634 (issued 

January 23, 2019) (the Board ordered a merit review where OWCP delayed its reconsideration decision more than 90 

days from the receipt of the request).

8 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority is 

limited to appeals which are filed within 180 da ys from the date of issuance of OWCP’s decision. 20 C.F.R. 

§§ 501.3(e).

9

S.P., supra note 7; K.B., supra note 7; see G.D., supra note 7.
5

IT IS HEREBY ORDERED THAT the March 8, 2021 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this order of the Board.

Issued: February 15, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board