United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Eureka, CA, Employer

__________________________________________

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Docket No. 21-0330

Issued: August 10, 2022

Appearances: Case Submitted on the Record

Kathryn Puanani Akana, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On January 6, 2021 appellant, through her representative, filed a timely appeal from a 

July 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 6, 2020, 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

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.

3 The Board notes that,following the July 27, 2020 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 July 16, 2013 appellant, then a 61-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that she sustained shoulder pain causally related to factors of her federal 

employment, including pushing, pulling, grasping, reaching, casing, and driving. She stopped 

work on May 20, 2013. OWCP assigned the claim OWCP File No. xxxxxx163 and accepted it for 

a sprain of the right rotator cuff,right shoulder adhesive capsulitis, enthesopathy of the right elbow, 

and adhesive capsulitis of the left shoulder.4 It paid her wage-loss compensation on the 

supplemental rolls, effective May 22, 2013, and on the periodic rolls, effective 

September 22, 2013. 

On April 11, 2019 OWCP referred appellant to Dr. Charles F. Xeller, a Board-certified 

orthopedic surgeon, for a second opinion examination.

In a report dated May 8, 2019, Dr. Xeller diagnosed a traumatic rotator cuff injury to the 

shoulder with a rheumatoid arthritis component bilaterally. He advised that appellant could not

lift over 15 pounds or work overhead, and that she had foot bunions that limited her ability to 

stand. In a work capacity evaluation (Form OWCP-5c) of even date, Dr. Xeller indicated that she 

should not perform lifting over 15 pounds, no overhead lifting, and that she could not work due to

problems with her knee, foot, neck, and hands primarily as a result of rheumatoid arthritis. In a 

July 13, 2019 addendum, he indicated that appellant could work eight hours per day in a sedentary 

position.

On July 23, 2019 OWCP referred appellant for vocational rehabilitation.

On August 16, 2019 the employing establishment offered appellant a position as a modified 

city carrier in Eureka, CA. The physical requirements included one to four hours of standing and 

sitting while casing mail, one to two hours of sitting while sorting, one to two hours of sitting while 

filing, and one to two hours using a computer. OWCP, by letter dated August 29, 2019, advised 

the employing establishment that the offered position was not suitable as it was over three hours 

from appellant’s residence and there was no evidence that it had first searched for positions in her 

geographical area.

On October 22, 2019 the employing establishment submitted evidence showing that it had 

searched for suitable employment within appellant’s geographical area, but had found no available 

position.

4 OWCP previously accepted that appellant sustained right shoulder sprain and a left closed fracture of the phalanx 

on June 23, 2012, assigned OWCP File No. xxxxxx526. It administratively combined the claim with the current file 

number.
3

In an offer of modified assignment form signed October 28, 2019, the employing 

establishment offered appellant a position as a modified city carrier in Eureka, CA, effective 

November 2, 2019. The duties of the position were the same as in its August 16, 2019 offer.

By letter dated November 12, 2019, the employing establishment informed OWCP that it 

had offered appellant a temporary assignment on October 29, 2019, but she had not reported to 

work.

On December 11, 2019 OWCP advised appellant that the offered position was suitable and 

afforded her 30 days to accept the position and report for duty or provide a written explanation of 

her reasons for refusal.

In a vocational rehabilitation report dated January 3, 2020, the rehabilitation counselor 

related that appellant had advised him on December 30, 2019 that she had accepted the job offer 

and was scheduled to resume work on January 12, 2020. Appellant had also applied for disability 

retirement.

In a rehabilitation action report dated January 9, 2020, an OWCP rehabilitation specialist 

noted that the employing establishment had advised that appellant had accepted the job offer, but 

then retired from the employing establishment, effective December 31, 2019.

The employing establishment submitted a December 23, 2019 form, indicating that 

appellant had retired from work on December 31, 2019.

On January 10, 2020 appellant’s representative advised OWCP that appellant was not 

accepting the offered position as she had retired.

On January 13, 2020 OWCP notified appellant that her reasons for refusing the position 

were deemed unjustified and afforded her an additional 15 days to accept the job.

Appellant telephoned OWCP on January 17, 2020 and asserted that she had accepted the 

offered position.

On January 27, 2020 appellant’s representative advised that appellant had reported to work 

to accept the offered position, but that the employing establishment had not allowed her to work 

as she had retired.

On January 28, 2020 appellant elected retirement benefits from the Office of Personnel 

Management (OPM) in lieu of workers’ compensation benefits from OWCP, effective 

January 4, 2020.

The employing establishment, on January 31, 2020, again offered appellant a position as a 

modified city carrier performing sedentary work with no reaching over the shoulder.

On February 19, 2020 the employing establishment advised that appellant had refused the 

offered position as she had retired. It asserted that the position remained available and was a 

permanent position.
4

By decision dated February 20, 2020, OWCP terminated appellant’s entitlement to wageloss and schedule award compensation, effective February 20, 2020, for refusing suitable work 

under 5 U.S.C. § 8106(c)(2).

On July 22, 2020 appellant, through her representative, requested reconsideration of the 

February 20, 2020 decision. Her representative contended that, subsequent to OWCP’s 

December 11, 2019 letter, finding the offered position suitable, but before the expiration of the 30 

days provided by the letter, appellant had retired from the employing establishment and elected to 

receive benefits from OPM. As she was no longer receiving wage-loss compensation, the 

representative argued that the job offer “was no longer relevant.” She cited 20 C.F.R. § 10.500(a),

which provides that the penalty provision of section 8106(c)(2) “will not be imposed on 

assignments made under this paragraph.”

By decision dated July 27, 2020, OWCP denied appellant’s request for reconsideration of 

the merits of her claim 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.5

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.6

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

OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.8 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.9

5

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).

6

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).

7

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 forwhich 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

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

9

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

March 18, 2010).
5

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 the July 22, 2020 reconsideration request, appellant’s representative contended that 

OWCP should have applied the provisions of 20 C.F.R. § 10.500(a) rather than terminating her 

wage-loss compensation under section 8106(c). Section 10.500(a) provides that an employee is 

not prevented from earning the wages earned prior to the work injury if the employing 

establishment offers a temporary light-duty assignment within his or her work restrictions and 

further specifies that the penalty provision of 5 U.S.C. § 8106(c) is not imposed on such 

assignments.10 On November 12, 2019 the employing establishment advised OWCP that the 

October 29, 2019 job offered was temporary; however, it subsequently indicated that the position 

was permanent. It is, thus, unclear from the record whether the October 29, 2019 position offered 

by the employing establishment was for a temporary or permanent position. The Board finds that 

appellant’s argument is new and relevant to the underlying issue of whether OWCP properly

terminated her wage-loss compensation and entitlement to a schedule award for refusing suitable 

work under section 8106(c). The legal argument requires reopening of her claim for merit review 

pursuant to the second prong of 20 C.F.R. § 10.606(b).11

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.12

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).

10 Id. at § 10.500(a).

11 See B.F., Docket No. 21-1088 (issued February 14, 2022); K.N., Docket No. 20-1188 (issued July 20, 2021).

12 B.F., id.
6

ORDER

IT IS HEREBY ORDERED THAT the July 27, 2020 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: August 10, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board