United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Aurora, IL, Employer

__________________________________________

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Docket No. 22-1124

Issued: January 23, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 26, 2022 appellant, through counsel, filed a timely appeal from a July 15, 2022 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 The Board notes that appellant, through counsel, specifically appealed OWCP’s July 15, 2022 nonmerit decision. 

Although, OWCP’s June 28, 2022 merit decision, wherein an OWCP hearing representative affirmed OWCP’s prior 

finding that appellant was not entitled to denial of wage-loss compensation from commencing on February 2, 2021 

onwards, and OWCP’s May6, 2022 decision granting a schedule award for two percent permanent impairment of the 

right lower extremity impairment, are within the Board’s jurisdiction, he has not appealed those decisions. Therefore, 

the Board will not address the June 28, 2022 wage-loss compensation decision or the May 6, 2022 schedule award 

decision in this appeal. 20 C.F.R. § 501.3(c)(4).
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction to review the merits of this case.4

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

On October 9, 2020 appellant, then a 49-year-old work unit supervisor, filed a traumatic 

injury claim (Form CA-1) alleging that on October 2, 2020 he felt a popping/tearing/burning in his 

right knee when he stood up to move his chair while in the performance of duty. He stopped work 

on October 3, 2020 and returned to work shortly thereafter. Appellant stopped work again on 

November 17, 2020. He returned to work on February 1, 2021 and worked intermittently 

thereafter. On April 21, 2021 OWCP accepted appellant’s claim for right knee sprain, other tear 

of right knee medial meniscus, and loose body in right knee. Appellant was paid wage-loss 

compensation on the supplemental rolls from November 17, 2020 to February 1, 2021. 

Appellant submitted a claim for compensation (Form CA-7) claiming intermittent 

disability from work commencing on February 16, 2021. 

By decision dated December 17, 2021, OWCP denied appellant’s claim for compensation, 

finding that the medical evidence of record was insufficient to establish disability from work 

commencing on February 2, 2021.

On December 28, 2021 appellant, through counsel, requested a telephonic hearing before

a representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on April 13, 2022. 

By decision dated June 28, 2022, OWCP’s hearing representative affirmed OWCP’s 

December 17, 2021 decision. 

On July 13, 2022 appellant, through counsel, requested reconsideration of OWCP’s 

June 28, 2022 decision. In an accompanying statement, appellant argued that Dr. Hythem P. 

Shadid, a Board-certified orthopedic surgeon, had not performed a complete examination in his 

role as a second opinion physician relative to his schedule award claim. Counsel also submitted a 

copy of Dr. Shadid’s February 9, 2022 second opinion report.

3

5 U.S.C. § 8101 et seq.

4 The Board notes that following the July 15, 2022 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.
3

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

reconsideration of the merits of his claim. 

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

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).

In support of his request for reconsideration, appellant argued that Dr. Shadid had not 

performed a complete examination in his role as a second opinion physician. However, this 

argument is not relevant to the underlying issue in this case of whether appellant has met his burden 

of proof to establish intermittent disability from work commencing on February 2, 2021 causally 

related to the accepted October 2, 2020 employment injury. The Board has held that the 

submission of evidence or argument, which does not address the particular issue involved does not 

5

5 U.S.C. § 8128(a); see K.V., Docket No. 21-0628 (issued August8, 2022); L.D., Docket No. 18-1468 (issued 

February11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L.,Docket No. 09-1549 (issued 

February23, 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 the merit 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

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); K.V., supranote 5; E.R.,Docket No. 09-1655 (issued March 18, 2010).
4

constitute a basis for reopening a case.10 The Board therefore finds that appellant did not establish 

that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal 

argument not previously considered by OWCP. Accordingly, the Board finds that appellant is not 

entitled to a review of the merits based on either the first or second above-noted requirement under 

20 C.F.R. § 10.606(b)(3).11

The Board further finds that appellant has not provided any relevant and pertinent new 

evidence not previously considered. In support of his reconsideration request, appellant 

resubmitted a copy of Dr. Shadid’s February 9, 2022 second opinion impairment report with 

several annotations. However, this evidence is not relevant to the underlying issue in this case of 

whether appellant has met his burden of proof to establish intermittent disability from work

commencing on February 2, 2021 causally related to the accepted October 2, 2020 employment 

injury. As previously noted, the submission of evidence which does not address the particular 

issue involved does not constitute a basis for reopening a case.12 Consequently, as appellant failed 

to provide relevant and pertinent new evidence, he is not entitled to a merit review based on the 

third above-noted requirement under 20 C.F.R. § 10.606(b)(3).13

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.14

CONCLUSION

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).

10 T.D., Docket No. 21-1381 (issued June21, 2022); Y.L.,Docket No. 20-1025 (issued November 25, 2020); E.W.,

Docket No. 19-1393 (issued January 29, 2020); R.R., Docket No. 18-1562 (issued February 22, 2019); Edward 

Matthew Diekemper, 31 ECAB 224-25 (1979).

11 Supra note 6.

12 Supra note 10.

13 Supra note 6.

14 See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April10, 2017); 

M.E., 58 ECAB 694 (2007); 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).
5

ORDER

IT IS HEREBY ORDERED THAT the July 15, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 23, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board