United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.J., Appellant

and

U.S. POSTAL SERVICE, HARWOOD 

HEIGHTS POST OFFICE, Harwood Heights, IL, 

Employer

__________________________________________

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Docket No. 23-0566

Issued: December 5, 2023

Appearances: Case Submitted on the Record

Samantha Hartwig, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 14, 2023 appellant, through her representative, filed a timely appeal from a 

September 15, 2022 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). As more than 180 days has elapsed from the last merit decision, dated

September 7, 2021, 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 of the 

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

FACTUAL HISTORY

OWCP accepted that on February 3, 1994 appellant, then a 38-year-old part-time flexible 

city carrier, sustained a contusion of the right hip, a sprain of the right acromioclavicular (AC) 

joint of the shoulder and upper arm, a medial meniscus tear of the right knee, and a strain of the 

right rotator cuff of the shoulder and upper arm when he fell descending stairs while in the 

performance of duty. It subsequently expanded its acceptance of the claim to include traumatic 

arthropathy of the right lower leg.

By decision dated April 23, 2002, OWCP reduced appellant’s wage-loss compensation to 

zero as her actual earnings as a modified full-time letter carrier, effective October 22, 2001, fairly 

and reasonably represented her wage-earning capacity.3

By decision dated June 14, 2010, OWCP modified its April 23, 2002 loss of wage-earning 

capacity determination and accepted that appellant sustained a recurrence of disability. It further 

found that acceptance of her claim should be expanded to include right knee arthritis and 

authorized a right knee arthroplasty. OWCP paid appellant wage-loss compensation beginning 

March 24, 2010.

On May 6, 2010 Dr. Guido Marra, a Board-certified orthopedic surgeon, diagnosed 

impingement syndrome following a decompression. He found that appellant required no further 

medical treatment and could resume work with restrictions. 

Appellant returned to full-time modified employment on December 6, 2010. OWCP paid 

her wage-loss compensation for intermittent time lost from work until February 7, 2014. 

Appellant retired on disability effective February 18, 2014. 

Appellant continued to receive medical treatment for right knee and right shoulder 

conditions through September 6, 2016. In a report dated September 6, 2016, Dr. Marra advised 

that he would see her again on an “as-needed basis.”

On July 6, 2021 appellant filed an undated notice of recurrence (Form CA-2a) due to her 

February 3, 1994 employment injury. In an accompanying statement, she related that she had not 

seen a physician for her right shoulder and knee condition due to other health issues for which she 

underwent multiple surgeries. Appellant also noted that she had relocated. She requested that 

OWCP reopen her case so that she could obtain medical treatment.

3 By decision dated July 11, 2002, OWCP granted appellant a schedule award for eight percent permanent 

impairment of the right upper extremity. By decision dated February 10, 2003, it granted her a schedule award for 12 

percent permanent impairment of the right lower extremity.
3

In a development letter dated July 16, 2021, OWCP informed appellant of the deficiencies 

of her recurrence claim. It advised her of the type of additional medical evidence needed and 

provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond.

In response, appellant submitted medical evidence dated 2013 to 2016.

By decision dated September 7, 2021, OWCP found that appellant had not established a 

recurrence of the need for medical treatment causally related to her accepted February 3, 1994 

employment injury. It noted that she had submitted medical evidence from previous years, but 

none of the evidence showed that she required additional medical treatment as a result of her 

accepted employment injury or that the evidence contained a reasoned opinion regarding how any 

current conditions were employment related.

In a report dated May 25, 2022, Dr. Matthew Johnston, an osteopath and Board-certified 

orthopedic surgeon, discussed appellant’s complaints of right knee pain beginning in 1993. He 

noted that her symptoms “began with no identifiable injury (gradual onset).” Dr. Johnston 

diagnosed a right rotator cuff sprain, a suspected rotator cuff tear, and postoperative right total 

knee replacement. He recommended a magnetic resonance imaging (MRI) scan of the right 

shoulder. 

An MRI scan of the right shoulder, obtained on June 8, 2022, demonstrated moderate 

arthrosis and spurring in the AC joint with fluid in the subacromial bursa. 

On June 15, 2022 Dr. Johnston related that he had counseled appellant on May 25, 2022 

regarding her right artificial knee joint. On examination he found positive impingement of the 

right shoulder. Dr. Johnston diagnosed right shoulder arthritis and primary osteoarthritis of the 

right shoulder.

On August 25, 2022 appellant requested reconsideration. She noted that she had submitted 

a statement explaining why she did not receive continued medical treatment. Appellant provided 

her summary of the newly submitted medical evidence and asserted that it was sufficient to reopen 

her claim for further medical treatment due to her accepted employment injury.

By decision dated September 15, 2022, OWCP denied appellant’s request for 

reconsideration of the merits of her claim, pursuant to 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 

4

5 U.S.C. § 8128(a); see C.V., Docket No. 22-0078 (issued November 28, 2022); 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).
4

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.6If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7If 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 properly denied appellant’s request for reconsideration of the 

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

Appellant has not shown that OWCP erroneously applied or interpreted a specific point of 

law or advanced a relevant legal argument not previously considered by OWCP. Consequently, 

she is 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).9

Moreover, appellant has not provided relevant and pertinent new evidence in support of 

her request for reconsideration. In support of her request, she submitted a May 25, 2022 report 

from Dr. Johnston. Dr. Johnston related that appellant’s symptoms began gradually in 1993 with 

no identifiable injury. He diagnosed a right rotator cuff sprain, a suspected rotator cuff tear, and 

postoperative right total knee replacement. Dr. Johnston, however, did not address the relevant 

issue of whether appellant required further medical treatment due to her accepted February 3, 1994 

employment injury. The Board has held the submission of evidence or argument which does not 

address the issue involved does not constitute a basis for reopening a case. 10 Therefore,

5

20 C.F.R. § 10.606(b)(3); see K.D., Docket No. 22-0756 (issued November 29, 2022); 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 (September 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.

7

Id. at § 10.608(a); see also D.B., Docket No. 22-0518 (issued November 28, 2022); F.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 April 2, 2020); E.R.,Docket No. 09-1655 (issued 

March 18, 2010).

9

20 C.F.R. § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

10 See P.G., Docket No. 20-1419 (issued September 16, 2021); C.C., Docket No. 20-0950 (issued October 29, 

2020); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
5

Dr. Johnston’s report is insufficient to warrant reopening appellant’s claim for further merit 

review.

Appellant further submitted a June 8, 2022 MRI scan of the right shoulder and a June 15, 

2022 report from Dr. Johnston, who diagnosed right shoulder arthritis and primary osteoarthritis. 

Again, however, this evidence failed to provide an opinion regarding whether she sustained a 

recurrence of the need for medical treatment as a result of her accepted employment injury. As 

discussed, the submission of evidence that fails to address the issue involved does not constitute a 

basis for reopening a claim.11

The Board, accordingly, finds that appellant did not meet 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.12

CONCLUSION

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

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

11 Id.; see also E.N., Docket No. 19-1687 (issued May 27, 2020).

12 D.A., Docket No. 22-0762 (issued September 30, 2022); T.G., Docket No. 20-0329 (issued October 19, 2020); 

C.C., Docket No. 17-0043 (issued June 15, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the September 15, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 5, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board