United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.O., Appellant

and

U.S. POSTAL SERVICE, SPRING CARRIER 

ANNEX POST OFFICE, Long Beach, CA, 

Employer

__________________________________________

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Docket No. 21-0030

Issued: May 19, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 21, 20201 appellant filed a timely appeal from a March 27, 2020 nonmerit 

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

elapsed from the last merit decision, dated May 22, 2019, 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.3

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f). 

One hundred and eighty days from March27, 2020, the date of the OWCP decision, was September 23, 2020. Since 

using October 5, 2020, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss 

of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark 

is September 21, 2020, which renders the appealtimely filed. See 20 C.F.R. § 501.3(f)(1).

2

5 U.S.C. § 8101 et seq.

3 The Board notesthat,following the March27, 2020 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedureprovides: “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 August 22, 2017 appellant, then a 57-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 21, 2017 she suddenly experienced a sharp pain in her 

left foot, resulting in a limp, when walking outside while in the performance of duty. She stopped 

work on August 22, 2017.

In an August 21, 2017 statement, appellant reiterated her history of injury alleging that she 

was walking on her assigned route when she suddenly felt a sharp pain in her left foot, and began 

limping due to the pain.

On August 21, 2017 Dr. Charles B. Tang, Board-certified in occupational medicine, 

examined appellant and diagnosed strain of an unspecified muscle and tendon at the left ankle and 

foot.

On August 22, 2017 the employing establishment provided appellant with an authorization 

for examination and/or treatment (Form CA-16).

An August 25, 2017 magnetic resonance imaging (MRI) scan demonstrated a split tear of 

the peroneus brevis tendon and tenosynovitis.

Dr. Basimah Khulusi, a Board-certified physiatrist, examined appellant on August 22, 

2017 and listed her history of walking at work and suddenly experiencing a sharp pain on the 

outside of her left foot. She noted that appellant sustained a left foot injury on June 15, 2017 

diagnosed as posterior tendinitis of the posterior tibial tendon. Appellant returned to work on 

July 17, 2017. On September 6, 2017 Dr. Khulusi noted her August 21, 2017 employment 

incident and diagnosed left foot cuboid syndrome, split tear of the peroneus brevis tendon on the 

left, and left ankle sprain.

In a September 21, 2017 development letter, OWCP advised appellant of the deficiencies 

of her claim. It requested additional factual and medical evidence and provided a questionnaire 

for her completion. OWCP afforded appellant 30 days to respond.

Dr. Khulusi completed an October 11, 2017 report and found that on August 21, 2017 

appellant injured the outside of her left foot while delivering mail. She again noted that she had a

prior left foot injury on June 15, 2017, but was authorized to return to work with no restrictions on 

July 17, 2017. Dr. Khulusi diagnosed split tear of the peroneus brevis tendon on the left and left 

ankle sprain. She opined that appellant experienced a traumatic injury on August 21, 2017 when 

she traversed irregular landscape with an incline. Dr. Khulusi found that this caused extra stresses 

on the peroneal tendon group of the lateral aspect of her left foot and ankle resulting in strains of 

these tendons. She further opined that, after appellant returned to work on July 17, 2017 following 

her June 15, 2017 left ankle sprain, her injury had insufficient time to heal resulting in additional 

injury.
3

In an October 16, 2017 response to OWCP’s development questionnaire, appellant argued

that she had sustained a traumatic injury. She explained that she was walking on her route and felt 

a sudden sharp pain on the outer part of her left foot resulting in a limp. Appellant immediately 

reported her condition to her supervisor, who asked her to finish her route. She continued to work 

with difficulty and pain. Appellant asserted that she had no prior outer left foot condition, but on 

June 15, 2017 she was diagnosed with left posterior tibial tendinitis and, as a result, was totally 

disabled from work June 16 through July 16, 2017.

In a September 21, 2017 report, Dr. Stephen C. Wan, a podiatrist, opined that on 

August 21, 2017 appellant experienced acute onset of pain in her left foot and ankle while in the 

process of mail delivery. He noted a prior left foot injury. Dr. Wan reported that upon further 

questioning, appellant explained that immediately preceding the onset of pain, she traversed an 

uneven surface on an incline. He diagnosed strain of the peroneal tendon left foot and ankle. 

Dr. Wan attributed her condition to traversing an irregular landscape with an incline while at work 

and noted that the motion involved in negotiating this type of terrain required extra work for the 

peroneal tendon group on the lateral aspect of the foot and ankle, which may cause a strain of the 

peroneal tendon.

By decision dated October 26, 2017, OWCP denied appellant’s traumatic injury claim,

finding that she had not established that the incident had occurred in the manner she alleged. Thus, 

it concluded that she had not met the requirements to establish an injury as defined by FECA. 

On May 10, 2018 appellant requested reconsideration of the October 26, 2017 decision. In

support thereof, she submitted a November 22, 2017 narrative statement, wherein she noted that 

there was a heavy load of mail for delivery on August 21, 2017 and that her foot began to hurt and 

required stretching to continue working. After lunch, appellant alleged that her left foot pain 

returned, and as she completed her deliveries, she took a step and experienced a sharp and strong 

pain and could not bear weight on her left foot. She noted that she had been working for nine 

hours when her foot pain occurred and had been walking across many bumpy lawns, up and down 

steps, and on sloped driveways. Appellant also provided photographs of the residence she was 

delivering mail when the pain occurred and indicated that the driveway was sloped. She provided 

a May 3, 2018 report from Dr. Khulusi discussing the photographs of the terrain at the residence 

and also resubmitted Dr. Wan’s September 21, 2017 report. 

By decision dated May 23, 2018, OWCP denied modification. 

On September 14, 2018 appellant requested reconsideration of the May 23, 2018 decision. 

She submitted a September 6, 2018 report from Dr. Khulusi who distinguished appellant’s 

June 15, 2017 medial left foot injury from her August 21, 2017 lateral left foot condition and 

opined that August 21, 2017 left ankle sprain and split tear of the peroneus brevis tendon were 

employment related.

By decision dated December 3, 2018, OWCP denied modification.

On February 5, 2019 appellant requested reconsideration of the December 3, 2018 decision 

and submitted a January 24, 2019 report from Dr. Khulusi. Dr. Khulusi asserted that OWCP was 

not applying the correct law to the facts of appellant’s case.

On April 30, 2019 OWCP referred a statement of accepted facts (SOAF) and the medical 

evidence to Dr. Ari Kaz, a Board-certified orthopedic surgeon and district medical adviser (DMA). 
4

In a May 9, 2019 report, the DMA reviewed the medical evidence and found that walking was not 

a trauma event if it occurred at work. He found that there was no evidence in the medical reports 

of record to support a traumatic etiology to appellant’s left foot pain.

By decision dated May 22, 2019, OWCP denied modification.

On June 27, 2019 appellant provided an appeal request form, but did not indicate which 

appeal option she wished to pursue. She also provided a June 13, 2019 report in which Dr. Khulusi 

opined that walking at work could constitute a compensable traumatic injury. She found that 

appellant experienced a traumatic injury on August 21, 2017 when she was walking while at work 

on August 21, 2017. Dr. Khulusi further disagreed with the DMA’s finding that her ligaments 

were intact with no evidence of a sprain. She noted that appellant was consistently tender in the 

area of the peroneus brevis tendon and showed swelling in that area.

In a letter dated July 9, 2019, OWCP noted that on June 27, 2019 appellant had not 

indicated which avenue of appeal she wished to pursue and that no further action would be taken

until such time as she selected one.

On August 2, 2019 appellant requested reconsideration and resubmitted Dr. Khulusi’s 

June 13, 2019 report.

By decision dated October 9, 2019, OWCP denied reconsideration of the merits of 

appellant’s claim, pursuant to 5 U.S.C. § 8128(a).

On December 10, 2019 appellant again requested reconsideration of the May 22, 2019 

merit decision. She provided a November 22, 2019 report from Dr. Wan in which he asserted that 

she sustained an employment injury on August 21, 2017. Dr. Wan also disagreed with the findings 

and conclusions of the DMA and found that the mechanism of injury and the location of the injury,

as well as the date of the injury, were all consistent with the context of appellant’s claimed 

employment injury.

By decision dated March 27, 2020, 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 FECA4 does not entitle a claimant to review of an OWCP decision as a 

matter of right.

5

 OWCP has discretionary authority in this regard and has impose certain 

4

5 U.S.C. § 8128(a). Under section 8128 of FECA, the (no quotes – no brackets) Secretary of Labor may review 

an award for or against payment of compensation at any time on his own motion or on application.

5 This section provides in pertinentpart: “[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 U.S.C. § 8128(a).
5

limitations in exercising its authority.

6

 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. 7 

A timely request for reconsideration, including all supporting documents, must set forth arguments 

and contain 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 new evidence not previously considered by OWCP.8 

When a timely request for reconsideration does not meet at least one of the above-noted 

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

review on the merits.9

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof. 10 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP. 11 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set for at section 10.606(b)(3) to the claimant’s request for 

reconsideration and any evidence submitted in support thereof.12

ANALYSIS

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

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

Appellant’s request for reconsideration did not show that OWCP erroneously applied or 

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

considered by OWCP. Consequently, she is not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 

In support of her request for reconsideration, appellant submitted a November 22, 2019 

medical report from Dr. Wan, wherein, he disagreed with the findings of the DMA and opined that 

the mechanism, location and date of injury were all consistent with the context of appellant’s 

claimed employment injury. While this medical evidence is new, it is not relevant because it does 

not address the underlying issue of the present case which is factual in nature, i.e., whether 

appellant submitted probative factual evidence supporting that she injured her left foot when she 

6

20 C.F.R. § 10.607.

7

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 its 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 (iFECS). Id. at Chapter 2.1602.4b.

8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(b).

10 F.E., Docket No. 20-0070 (issued August4, 2020); J.F., Docket No. 17-1508 (issued March 28, 2018).

11 See supra note 2. F.E.,id.; Mark H. Dever, 53 ECAB 710 (2002).

12 F.E., id.; Annette Louise, 54 ECAB 783 (2003).
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was walking and delivering mail on August 21, 2017. The Board has held that the submission of 

evidence or argument, which does not address the particular issue involved does not constitute a 

basis for reopening a case.13 Consequently, appellantis not entitled to a review of the merits based 

on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3). 

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3).14 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15

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).

13 G.K., Docket No. 20-1026 (issued December 11, 2020); M.K., Docket No. 18-1623 (issued April10, 2019); 

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

14 R.R., Docket No. 20-0378 (issued March 9, 2021); D.M., Docket No. 18-1003 (issued July 16, 2020); SusanA. 

Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening the case for 

a review on the merits).

15 The Board notes that the employing establishment issued a Form CA-16. A complete Form CA-16 authorization 

may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. 

The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the

examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 

191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 

ECAB 608 (2003).
7

ORDER

IT IS HEREBY ORDERED THAT March 27, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 19, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board