United States Department of Labor

Employees’ Compensation Appeals Board

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T.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mansfield, OH, Employer

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Docket No. 21-1151

Issued: January 18, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 22, 2021 appellant filed a timely appeal from a June 25, 2021 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed 

from the last merit decision, dated April 8, 2020, to the filing of this appeal, pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks 

jurisdiction over the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the June 25, 2021 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

On February 1, 2017 appellant, then a 43-year-old city carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on January 26, 2019 she fractured her left ankle and left 

tibia when she slipped and fell backwards while in the performance of duty. OWCP accepted the 

claim for an unspecified closed fracture of the shaft of the left fibula. On January 31, 2017 

appellant underwent an OWCP-authorized open reduction and internal fixation of the fibula. 

OWCP paid her wage-loss compensation in the supplemental rolls from March 13 through 

July 21, 2017. 

On May 11, 2017 a nurse practitioner indicated that appellant could return to her regular 

duties without restriction.

On August 8, 2017 appellant filed a claim for compensation (Form CA-7) due to disability 

from work for the period July 22 through August 4, 2017. On August 23, 2017 she filed a CA-7 

form requesting compensation for employment-related disability from August 5 through 18, 2017. 

Appellant continued to submit CA-7 forms requesting wage-loss compensation due to disability. 

In a report dated August 30, 2017, Dr. Hillary Tudor, a podiatrist, evaluated appellant for 

left ankle pain and discussed her history of injury, including a January 31, 2017 open reduction 

and internal fixation of the ankle. On examination she found full strength and motion without pain 

or crepitus and pain on palpation of the lateral distal fibula of the left ankle. Dr. Tudor diagnosed 

an unspecified fracture of the left fibula. On September 28, 2017 she found that appellant could 

work limited duty standing less than 15 minutes each hour.

By decision dated October 17, 2017, OWCP denied appellant’s claim for disability from 

work commencing July 22, 2017. It noted that she had been released to full-time regular work on 

May 11, 2017, but had not returned. 

On October 31, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

On December 15, 2017 Dr. Tudor surgically removed the hardware in appellant’s left 

ankle.

OWCP paid appellant wage-loss compensation for total disability on the supplemental rolls 

beginning December 15, 2017 and on the periodic rolls beginning July 22, 2018.

Following an April 17, 2018 telephonic hearing, by decision dated June 18, 2018, OWCP’s 

hearing representative affirmed the October 17, 2017 decision. She found that appellant had not 

established disability from work for the period July 22 to December 14, 2017 causally related to 

her January 26, 2017 employment injury. 
3

Appellant submitted medical evidence dated between May and November 2018 from

Dr. Jeffrey Wilson, a podiatrist, and Dr. Mark Berkowitz, a Board-certified orthopedic surgeon, 

relevant to her current condition and disability.3

On October 30, 2018 appellant requested reconsideration.

On March 2, 2019 appellant returned to full-time limited-duty employment.

By decision dated March 13, 2019, OWCP denied modification of the June 18, 2018 

decision.

On July 22, 2019 OWCP expanded its acceptance of appellant’s claim to include an 

incisional hernia and a surgical neuroma of the cutaneous nerve. On December 16, 2019 it

expanded its acceptance of the claim to include left ankle instability and left leg peroneal tendinitis.

On March 4, 2020 appellant underwent an OWCP-authorized left leg four compartment 

fasciotomy and lateral ankle stabilization. OWCP paid her wage-loss compensation for total 

disability beginning March 4, 2020.

By decision dated April 8, 2020, OWCP denied modification of its March 13, 2019 

decision denying appellant’s claim for disability from July 22 through December 14, 2017.

On May 27, 2020 OWCP expanded its acceptance of the claim to include delayed wound 

healing of the left ankle.

On August 10, 2020 OWCP referred appellant to Dr. David K. Halley, a Board-certified 

orthopedic surgeon, for a second opinion examination. It requested that he address her current 

condition and disability. 

In a report dated September 4, 2020, Dr. Halley discussed appellant’s history of injury and 

provided his review of the medical evidence of record. On examination he diagnosed possible 

continued compartment syndrome, good lateral and anterior stability, and continued left peroneal 

tendinopathy. Dr. Halley found no residuals of the left fibula fracture or evidence of an incisional 

hernia and decreased sensation at the superficial peroneal nerve. He opined that appellant could 

perform sedentary employment with limitations that included alternating sitting and standing every

hour, and lifting no more than 10 pounds. Dr. Halley advised a review of the medical evidence 

suggested that appellant had compartment syndrome “more than likely” resulting from her 

employment injury and resulting surgery. He opined that she was totally disabled from 

October 21, 2019 to March 4, 2020. 

3 On October 16, 2018 OWCP referred appellant to Dr.Ralph Rohner, Jr., a Board-certified orthopedic surgeon, 

for a second opinion examination. In a report dated November 12, 2018, Dr.Rohner diagnosed a healed left fibular 

closed fracture, incisional muscle hernia, and surgical neuroma of the cutaneous nerve of operative field, which he 

found were causally related to the accepted employment injury. He found that appellant required further surgery for 

the muscle hernia and cutaneous neuroma and provided work restrictions. 
4

On October 1, 2020 OWCP found that appellant was entitled to wage-loss compensation 

due to disability from employment for the period October 21, 2019 to March 4, 2020.

On October 20, 2020 appellant requested reconsideration. She contended that the report 

from Dr. Halley was sufficient to establish that she had limitations since 2017 due to her accepted 

employment injury.

By decision dated December 1, 2020, OWCP denied appellant’s request for 

reconsideration of the merits of her claim under 5 U.S.C. § 8128(a). It found that on April 8, 2021 

appellant, through counsel, requested reconsideration of OWCP’s April 8, 2020 decision. Counsel 

contended that the September 4, 2020 report of Dr. Halley diagnosed additional employmentrelated conditions and was therefore sufficient to show that appellant had additional medical 

conditions causally related to her accepted employment injury and was, thus, relevant to the issue 

of whether she had established disability from employment for the claimed dates. In the 

alternative, he asserted that OWCP should request an addendum report from Dr. Halley addressing 

the specific claimed periods of disability.

By decision dated June 25, 2021, OWCP denied appellant’s request for reconsideration of 

its April 8, 2020 decision as she had not raised an argument or submitted evidence sufficient to 

warrant reopening her case for further review of the merits under 5 U.S.C. § 8128(a).

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. 4

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.5

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

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

4

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).

5

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).

6

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 2020). 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). Id. at Chapter 2.1602.4b.
5

and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the 

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

reopening the case for review on the merits.8

ANALYSIS

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).

In her timely request for reconsideration, counsel contended that Dr. Halley, an OWCP 

referral physician, diagnosed additional employment-related conditions in his September 4, 2020 

report and that his opinion was, therefore, relevant to the issue of whether she had established

employment-related disability for periods prior to his report. He further asserted that OWCP 

should have requested an addendum opinion from Dr. Halley addressing the specific claimed 

periods of disability. The Board finds that appellant’s argument that Dr. Halley’s report was 

sufficient to require additional development of the medical evidence is new and relevant to the 

underlying issue of whether appellant has established disability from work for the period July 22 

to December 14, 2017 causally related to her January 26, 2017 employment injury.

9

 The legal 

argument, thus, requires reopening of appellant’s claim for merit review pursuant to the second 

prong of section 10.606(b).10

Consequently, the Board finds that OWCP improperly denied merit review pursuant to 20 

C.F.R. § 10.608. The case shall, therefore, be remanded to OWCP for consideration of the merits 

of appellant’s claim, to be followed by an appropriate merit decision.11

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).

7

Id. at § 10.608(a); see alsoF.V.,Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April2, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

9 K.N., Docket No. 20-1188 (issued July 20, 2021); J.H., Docket No. 20-1312 (issued April26, 2021).

10 K.N., id.

11 V.S., Docket No. 20-0502 (issued December 31, 2020).
6

ORDER

IT IS HEREBY ORDERED THAT the June 25, 2021 decision of the Office of Workers’

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

with this decision of the Board.

Issued: January 18, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board