United States Department of Labor

Employees’ Compensation Appeals Board

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T.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

TORRESDALE STATION, Philadelphia, PA,

Employer

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Docket No. 20-1306

Issued: July 22, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 22, 2020 appellant filed a timely appeal from a December 30, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a Board decision dated September 5, 2018, which became final after 30 days of 

issuance and is not subject to further review.1 As there was no merit decision issued by OWCP 

within 180 days of 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 20 C.F.R. § 501.6(d); P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued 

July 1, 2015); C.M., Docket No. 15-0417 (issued April 27, 2015).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth

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

follows.

On May 31, 2016 appellant, then a 58-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed left hip end-stage degenerative joint disease 

as a result of factors of his federal employment. He noted that he first became aware of his 

condition and its relation to his federal employment on August 12, 2014. Appellant did not stop 

work.

In a supplemental statement dated June 28, 2016, appellant indicated that he had worked 

as a city letter carrier since July 6, 1988 and that his duties required lifting, bending, carrying, and 

walking. He alleged that these activities caused his severe hip condition for which he had a hip 

replacement. Appellant noted that he was filing an occupational disease claim for aggravation and 

acceleration of left hip degeneration. He described a typical day of work which included standing 

on a concrete floor with a rubber mat, and lifting/carrying heavy trays of mail for sorting and 

loading into a case. Appellant asserted that his work delivering mail involved extensive walking 

while carrying a satchel hanging over his shoulder. The satchel contained up to 35 pounds of mail 

and small parcels. He noted that his route consisted of long blocks with many stairs and stoops, 

and the route took about seven hours to complete. Appellant concluded that he walked 

approximately 15 miles daily. He noted that he underwent surgery on his hip on June 8, 2015, and 

returned to work at the end of August 2015. 

In an April 28, 2016 report, Dr. Easwaran Balasubramanian, a Board-certified orthopedic 

surgeon, summarized appellant’s medical treatment. He noted that he initially saw appellant on 

August 14, 2014. Dr. Balasubramanian described in detail appellant’s employment duties. He 

noted that he initially treated appellant with cortisone injections, which helped temporarily, but by 

February 2015 appellant’s symptoms were so severe that he could no longer perform his carrier 

duties. As a result, Dr. Balasubramanian recommended that appellant not return to work. 

Appellant then underwent physical therapy three times a week, and after conservative treatment 

measures were exhausted, he was scheduled for a left hip replacement which occurred on 

June 8, 2015. Dr. Balasubramanian indicated that appellant was currently back at work in a 

modified capacity, and had been working since September 2015. He noted that appellant had 

increasing pain with increasing activities while performing his work duties. Dr. Balasubramanian 

noted that appellant’s job involved being on his feet constantly, almost the entire workday for the 

past 27 years. He opined that appellant had left hip degenerative arthritis which was aggravated 

by his work as a mailman which involved casing mail while standing and then walking for 

substantially the rest of his workday carrying mail in a satchel weighing up to 35 pounds. 

Dr. Balasubramanian noted that appellant performed these duties for about seven hours a day on 

 

4 Docket No. 18-0149 (issued September 5, 2018).
3

average and walked about 15 miles a day. He noted that this activity aggravated the preexisting 

hip degenerative arthritis such that he eventually needed to take appellant off work in the hopes 

that conservative treatment measures would alleviate his symptoms. When conservative treatment 

measures failed, Dr. Balasubramanian opined that this necessitated the total hip replacement and 

subsequent permanent modified-duty restrictions. He opined that appellant’s employment activity 

aggravated the condition of his hip and contributed to his left hip replacement. 

Dr. Balasubramanian noted that appellant had a very good result from the hip replacement and was 

presently working with permanent restrictions due to his condition. The record also contains the 

June 8, 2015 report regarding the left total hip arthroplasty and further treatment notes from

Dr. Balasubramanian. 

By development letter dated August 1, 2016, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary 

evidence.

On August 22, 2016 appellant noted that he first saw his family doctor regarding his hip 

issue on April 23, 2014 and underwent x-ray examination. He noted that at that time he had been 

having left leg pain for approximately a year, but that his doctor told him it was just a minor 

condition and something he would have to live with. Appellant reported that it was his 

understanding that he had three years to file his claim. “He noted that the full scope of his condition 

and severity took some time to unfold.”

On September 1, 2016 OWCP referred the record to Dr. Eric M. Orenstein, a Boardcertified orthopedic surgeon serving as a district medical adviser (DMA). In a September 25, 2016 

report, Dr. Orenstein reviewed appellant’s employment and medical history, and opined that 

appellant’s left total hip arthroplasty was medically necessary for appellant’s symptomatic 

avascular necrosis and osteoarthritis of the left hip, which had been poorly responsive to 

conservative treatment measures. However, he opined that appellant’s avascular necrosis and 

associated osteoarthritis was not causally related to his occupation as a city letter carrier. 

Dr. Orenstein noted that there was insufficient evidence to assign causation to heavy employment 

duties. He opined that more than likely there was a genetic component to osteoarthritis of the hip 

and that there is often a positive family history of osteoarthritis of the hip. Dr. Orenstein further 

noted that appellant had x-ray and pathologic evidence of vascular necrosis of the left hip leading 

to collapse and progressive osteoarthritis of the left hip that would not have a causal relationship 

to the claimant’s employment-related activities as a city letter carrier. He therefore disagreed with

Dr. Balasubramanian and opined that appellant’s left total hip surgery was not causally related to 

his employment activities as a letter carrier. 

By decision dated September 28, 2016, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish a medical condition causally related to the 

accepted employment factors.5

 

5

It accepted as established factors of federal employment that appellant was responsible for retrieving and loading 

letters and flat mails, bending and lifting trays, and sorting, twisting, pushing, walking, and carrying mail in a satchel 

on his shoulder. 
4

In a letter dated October 24, 2016, appellant, through his then-counsel, requested review 

of the written record by a representative of OWCP’s Branch of Hearings and Review. Thencounsel contended that the report of Dr. Orenstein was not rationalized as it was not based upon 

the evidence in the record, an understanding of the work duties performed by appellant, nor a 

physical examination. He contended that it was not necessary to remand the case for a second 

opinion examination, but that the case should be accepted based on the opinion of

Dr. Balasubramanian. 

By decision dated January 13, 2017, the hearing representative determined that the case 

was not in posture for decision, as there was a conflict in the medical evidence between appellant’s 

treating physician, Dr. Balasubramanian, and OWCP’s DMA, Dr. Orenstein. Accordingly, the 

hearing representative remanded the case for referral to an impartial medical examiner, and any 

further development of the evidence as deemed necessary. 

In a January 18, 2017 letter, counsel argued that the DMA’s memorandum could not form

a conflict of medical opinion, and that the opinion of OWCP’s DMA was not based on a physical 

examination, nor was it based upon a review of the factual and medical records of record.

On February 23, 2017 OWCP referred appellant to Dr. Andrew Collier, a Board-certified 

orthopedic surgeon, for an impartial medical examination. In an April 5, 2017 report, Dr. Collier 

based on obtaining a history from appellant, performing a physical examination, and review of the 

record, concluded that appellant developed avascular necrosis of the left hip due to idiopathic 

reasons. He noted that appellant had no history of steroid use, alcohol use, or any comorbidities 

that would cause avascular necrosis. Dr. Collier noted that appellant had no history of any trauma 

to the hip region which would include a dislocation and/or fracture of the femoral neck or infection. 

He opined that appellant’s avascular necrosis was not caused by his employment-related activities. 

Dr. Collier noted that this was an inherent vascular phenomenon of the femoral head totally 

unrelated to appellant’s employment activities. He explained that, if this condition was related to 

his work, then there would have been similar findings in the right hip, which did not exist.

Dr. Collier noted that unfortunately, appellant’s femoral head went on to collapse causing severe 

arthritis in the left hip necessitating the hip replacement. He opined that appellant started 

developing avascular necrosis in March 2014 with pain. Dr. Collier noted that it did not become 

radiographically apparent until later when his femoral head finally collapsed. He opined that the 

collapse of appellant’s femoral head would have occurred regardless of appellant’s work 

conditions; that is the natural course in history of avascular necrosis. 

By decision dated May 1, 2017, OWCP denied modification of the September 28, 2016 

decision.

On May 19, 2017 appellant, through counsel, requested a review of the written record by 

an OWCP hearing representative. 

By decision dated October 17, 2017, the hearing representative affirmed the May 1, 2017 

decision.
5

On October 26, 2017 appellant appealed to the Board. By decision dated September 5, 

2018, the Board affirmed the October 17, 2017 decision.6

On October 2, 2019 appellant requested reconsideration and disagreed with Dr. Collier’s 

findings and conclusions. He contended that Dr. Collier failed to address Dr. Balasubramanian’s 

assertion that his employment duties aggravated the degenerative arthritis in his left hip. Appellant

further contended that Dr. Collier’s opinion did not provide a proper analysis under the definition 

of proximate cause. He argued that he had established through factual and medical evidence that 

his left hip injury was related to his employment duties. Appellant disagreed with Dr. Collier’s 

opinion that his left hip injury was caused by avascular necrosis and contended that his duties as a 

letter carrier were a reasonably foreseeable cause of his injury. He listed his employment duties, 

asserted that repetitive motion injuries were the most common cause of long-term occupational 

illnesses, and alleged that Dr. Collier failed to identify which nonwork-related activities would 

have contributed to his injury that did not involve the same repetitive motions as were required by 

his job.

By decision dated December 30, 2019, OWCP denied appellant’s request for 

reconsideration of the merits of his 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 or her own motion or on application.7

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.8

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

OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens 

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

 

6 Supra note 4. 

7 5 U.S.C. § 8128(a); L.D., Docket No. 18-1468 (issued February 11, 2019); 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).

8 20 C.F.R. § 10.606(b)(3); L.D., id.; L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

9

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.
6

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

reopening the case for review on the merits.10

If the request for reconsideration has a document received date greater than one year, the 

request must be considered untimely.11 OWCP will consider an untimely request for 

reconsideration only if it demonstrates clear evidence of error in OWCP’s most recent merit 

decision. The request must establish, on its face, that such decision was erroneous.12

The term clear evidence of error is intended to represent a difficult standard. If clear 

evidence of error has not been presented, OWCP should deny the request for reconsideration by 

letter decision, which includes a brief evaluation of the evidence submitted and a finding made 

that clear evidence of error has not been shown.13

ANALYSIS

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

By decision dated September 28, 2016, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish a medical condition causally related to the 

accepted employment factors. Appellant requested reconsideration and by decision dated May 1, 

2017, OWCP denied modification of the September 28, 2016 decision. On October 17, 2017 the 

hearing representative affirmed the May 1, 2017 decision. Appellant appealed to the Board and, 

by decision dated September 5, 2018, the Board affirmed the October 17, 2017 decision.14 

OWCP’s procedures provide that the one-year time limitation period for requesting 

reconsideration begins on the date of the original OWCP decision.15 A right to reconsideration 

within one year also accompanies any subsequent merit decision on the issues.16 Timeliness is 

determined by the date that the request is received by OWCP and that if the request for 

reconsideration has a document received date greater than one year, the request must be considered 

untimely.17

The most recent decision reviewing the merits of appellant’s claim was the Board’s 

September 5, 2018 decision. Appellant had one calendar year from the date of that decision, or 

until September 5, 2019, to ensure receipt by OWCP of any reconsideration request. OWCP did 

not receive appellant’s reconsideration request until October 2, 2019. Appellant’s request must,

 

10 Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (February 2016).

12 20 C.F.R. § 10.607.

13 Supra note 11 at Chapter 2.1602.5.a (October 2011).

14 Supra note 4. 

15 20 CFR § 10.607(a).

16 Robert F. Stone, 57 ECAB 292 (2005)

17 Supra note 11.
7

therefore, be considered untimely. The proper standard of review for an untimely reconsideration 

request is the clear evidence of error standard.18 In denying appellant’s reconsideration request, 

however, OWCP did not determine that her reconsideration request was untimely filed and did not 

review the request under the clear evidence of error standard. Rather, it applied the standard of 

review for timely requests for reconsideration. As OWCP applied the incorrect standard of review 

to the untimely request for reconsideration, the Board will set aside OWCP’s December 30, 2019 

decision and remand the case for proper review under the clear evidence of error standard, followed 

by an appropriate decision.

19

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 30, 2019 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: July 22, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

18 20 C.F.R. § 10.607.

19 See D.G., Docket No. 17-1323 (issued January 2, 2018); W.L., Docket No. 15-1842 (issued January 14, 2016).