United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.N., Appellant

and

U.S. POSTAL SERVICE, MILWAUKEE 

PRIORITY ANNEX POST OFFICE, 

Oak Creek, WI, Employer

__________________________________________

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Docket No. 21-1174

Issued: January 28, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 28, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit 

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

have elapsed from OWCP’s last merit decision, dated February 13, 2020, to the filing of this 

appeal, pursuant to the Federal Employees’Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction over the merits of this case. 2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the February 11, 2021 decision, appellant submitted additional evidence to 

OWCP. 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 February 22, 2016 appellant, then a 35-year-old parcel post distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she developed “Other Disorders Due to 

Repeated Trauma” due to factors of her federal employment, including daily walking and standing 

on concrete floors and lifting heavy bags with parcels and bundles. She reported that she first 

became aware of her claimed condition and realized its relation to her federal employment on 

December 26, 2015.

In support of her claim, appellant submitted a February 5, 2016 work excuse note from

Dr. William Raasch, a Board-certified orthopedist specializing in sports medicine, who reported 

that appellant was able to return to full-time sedentary-duty work on February 9, 2016.

In a development letter dated March 4, 2016, OWCP informed appellant that the evidence 

of record was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

In a March 23, 2016 letter, Dr. Raasch noted that he examined appellant on February 5, 

2016 for right knee pain she had for the last several months. He referenced a January 26, 2016 

magnetic resonance imaging (MRI) scan that showed a significant condylar injury involving the 

medial femoral condyle. Dr. Raasch related appellant’s work history and opined that her 

patellofemoral symptoms were consistent with her work activities. He recommended physical 

therapy and sedentary-duty work pending re-evaluation.

On April 1, 2016 appellant responded to OWCP’s development questionnaire, noting that 

she lifted heavy bags, pulled boxes, pulled all-purpose carts, and went up and down stairs for three 

hours each day, five days a week. She believed these employment activities contributed to her 

claimed condition. Appellant reported that she did not engage in any activities outside of her 

federal employment that could have caused her condition.

By decision dated May 2, 2016, OWCP denied appellant’s claim, finding that the medical 

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

factors of her federal employment. It concluded, therefore, that the requirements had not been met 

to establish an injury as defined by FECA.

Appellant subsequently submitted a January 17, 2016 work excuse note from Annie 

Billstrom, a physician assistant, advising that appellant could return to work with restrictions. She 

also submitted a January 26, 2016 work excuse note from Dr. Stephen Malcom, a Board-certified 

internist, advising that appellant should be excused from work until January 29, 2016.

On May 31, 2016 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. She submitted a May 25, 2016 letter from Dr. Raasch 
3

who diagnosed progressive wear of the patellofemoral articulation and a delamination at the 

femoral condyle. Dr. Raasch opined that the progression of the articular wear was outside the 

norm and was consistent with the accepted factors of appellant’s federal employment. 

A January 17, 2016 emergency department note signed by Ms. Billstrom related that 

appellant was walking at work on December 26, 2015 and felt a pop in her right knee. Appellant

reported that since the initial injury, the pain recurred intermittently most days with walking. A

January 17, 2016 x-ray of appellant’s right knee revealed mild patellofemoral degenerative joint 

disease, but no fracture or dislocation.3

A February 5, 2016 emergency department note co-signed by Dr. Brady McIntosh, a 

Board-certified physician, reported that appellant was in a car accident on that date. An 

examination revealed tenderness in the right ribs, decreased range of motion, swelling, and 

tenderness in the right elbow, cervical back, and thoracic back, and tenderness and bony tenderness 

in the lower right leg. X-ray scans of appellant’s chest, cervical spine, thoracic spine, right elbow, 

and right tibia and fibula revealed no abnormalities.

Appellant submitted progress notes from Dr. Raasch, dated February 5, April 6, May 18, 

and July 20, 2016, in which he recommended physical therapy and work restrictions, with the 

possibility of future chondrocyte implantation or autologous chondrocyte harvest to treat 

appellant’s ongoing symptoms. In a July 20, 2016 work restriction note, Dr. Raasch indicated that 

appellant was able to return to full-time sedentary-duty work.

In a September 14, 2016 progress note, Dr. Malcom noted that appellant continued to 

experience right knee pain from a known meniscal tear and chondral defect after completing 

physical therapy.

By decision dated November 22, 2016, OWCP’s hearing representative affirmed the 

May 2, 2016 decision, as modified, finding that the evidence of record contained a medical 

diagnosis establishing the medical component of fact of injury. The claim remained denied, 

however, as the evidence of record was insufficient to establish causal relationship between 

appellant’s diagnosed conditions and the accepted factors of her federal employment.

Appellant subsequently submitted a January 25, 2017 progress note from Dr. Raasch, 

indicating that appellant’s patellofemoral symptoms had improved with physical therapy, but she 

continued to experience right knee pain from her significant chondral delamination.

In a January 18, 2017 letter, Dr. Raasch explained that he had not previously discussed

appellant’s February 5, 2016 car accident or her diagnosed obesity because he did not consider 

either to be a significant contributing factor to her diagnosed conditions. He further opined that 

appellant’s patellofemoral symptoms were caused by prolonged employment factors, such as 

3 Appellant underwent an MRI scan of her right knee on January 26, 2016, which revealed minimal meniscal free 

edge blunting of the medial meniscal body and posterior horn, sprain of the proximal lateral collateral ligament, fullthickness cartilaginous defects of the weight-bearing surface of the medial femoral condyle, and full-thickness 

cartilaginous loss of the lateral patellar facet.
4

lifting and carrying bins and standing and walking on cement floors, resulting in progressive wear 

of the patellofemoral articulation and a delamination of the femoral condyle.

On February 8, 2017 appellant requested reconsideration. 

In a September 14, 2016 letter, Dr. Raasch repeated appellant’s history of injury and 

advised that appellant would be able to perform her employment duties without restrictions by 

March 15, 2017.

In a December 5, 2016 work restriction note, Dr. Raasch advised that appellant could return 

to work full time with sedentary-duty work restrictions. On January 17, 2017 he advised that 

appellant could return to work on March 8, 2017 fulltime with no restrictions for a trial of activity.

On February 20, 2017 Dr. Raasch indicated that appellant would undergo right knee 

arthroscopy chondroplasty with drilling on April 20, 2017. In a March 1, 2017 work restriction 

note, he noted that appellant could return to work full time with sedentary-duty work restrictions.

By decision dated June 16, 2017, OWCP denied modification of its November 22, 2016

decision.

Appellant subsequently submitted a June 29, 2017 work restriction note from Dr. Raasch 

who advised that she could return to full-time work with sedentary-duty work restrictions on 

July 7, 2017.

On September 19, 2017 appellant requested reconsideration. She submitted an August 30, 

2017 letter from Dr. Raasch in which he explained that the MRI scan performed at the time of 

injury revealed a clear edge to the articular surface consistent with an acute injury and appellant’s 

history of injury. Dr. Raasch ruled out appellant’s obesity as a major contributing factor reporting 

that, there would be a gradual thinning of the articular cartilage over years, rather than the acute 

delamination with a squared articular edge revealed by the MRI scan. Finally, he ruled out the 

February 5, 2016 car crash as a contributing factor because both the MRI scan and appellant’s 

initial evaluation were performed prior to that date.

By decision dated December 18, 2017, OWCP denied modification of its June 16, 2017 

decision.

On April 11, 2018 appellant requested reconsideration. She submitted a March 7, 2018

letter from Dr. Raasch in which he opined that her injury clearly occurred at work because the 

January 26, 2016 MRI scan revealed acute injury to the chondral surface consistent with the 

accepted factors of her federal employment.

By decision dated November 21, 2018, OWCP denied modification of its May 2, 2016

decision because the evidence of record contained inconsistent accounts of appellant’s injury.
5

On May 28, 2019 appellant, through then-counsel, requested reconsideration. In a May 15, 

2019 letter, Dr. Raasch related that appellant’s injury occurred while walking at work, when she 

felt a pop in her knee followed by sharp pain and discomfort.4

Appellant also submitted work restriction notes from Dr. Raasch dated December 12, 

2018, February 27, May 1, May 21, and July 31, 2019 advising that appellant could return to work 

full time with sedentary-duty work restrictions.

By decision dated August 21, 2019, OWCP denied modification of its November 21, 2018 

decision, noting that Dr. Raasch’s May 15, 2018 report suggested a traumatic injury rather than an 

occupational disease.

On October 7, 2019 appellant requested reconsideration. In an October 2, 2019 report,

Dr. F. Michael Saigh, a Board-certified physician specializing in family medicine, related 

appellant’s history of injury and treatment and diagnosed right knee tear of the articular cartilage, 

chondromalacia patellae, and tear of medial meniscus.

5

OWCP also received a September 26, 2019 work restriction note fromDr. Raasch advising 

that appellant could return to work full time with sedentary-duty work restrictions.

By decision dated November 1, 2019, OWCP denied modification of its August 21, 2019 

decision, finding that Dr. Saigh’s report was of limited probative value because it contained factual 

inaccuracies.

On November 15, 2019 appellant requested reconsideration. She submitted an undated 

letter from Dr. Saigh addressing the factual discrepancies in his October 2, 2019 report.6

In a January 6, 2020 work restriction note, Dr. Raasch advised that appellant could return 

to work full time with sedentary-duty work restrictions.

4 Dr. Raasch noted that the MRI scan of appellant’s right knee showed loose bodies, which, along with the clear 

onset of symptoms, “clearly defines the time of injury.” He reiterated that while appellant’s weight predisposed her 

to such an injury, “the mechanism of injury was the compression of the articular surface under shear load while 

ambulating at work.” Dr. Raasch attributed appellant’s condition not “to a progressive problem over time but rather 

a single step in which the damage occurred.”

5 Dr. Saigh explained that “[d]egenerative tears in the articular surfaces of the meniscus and cartilage most 

commonly occur in middle aged adults that are subject [to] repetitive stress which causes weakening of the [meniscal] 

and articular cartilage tissue. In [appellant]’s case, the repetitive maneuvering of large equipment, lifting, standing on 

concrete floors and going up and down stairs while working for the [employing establishment] caused the [diagnosed 

conditions] of the right knee. All of these diagnos[e]s are documented and affirmed with advanced medical imaging 

and supplemental orthopedic evaluations -- again in my medica l opinion with medical certainty, the patient[’]s 

conditions listed above correlate directly with the history, evaluations and medical imaging performed in a timely 

manner.... [T]his injury is an occupational disease due to extensive microtrauma over the course of time.”

6 Dr. Saigh reported that the employmentincident on December 26, 2015 resulted from extensive microtrauma over 

time, causing degeneration of the chondral surface and meniscus. He noted that the “pop” added significant damage 

to appellant’s conditions, but cautioned that “just because the patient sustained a pop does not deem this traumatic.” 
6

By decision dated February 13, 2020, OWCP denied modification of its November 1, 2019 

decision.

On February 10, 2021 appellant requested reconsideration and asserted that her diagnosed 

right knee conditions were causally related to the accepted factors of her federal employment. She 

submitted a February 3, 2021 work restriction note from Dr. Raasch advising that she could return 

to work with permanent restrictions, including no kneeling, squatting, climbing, or heavy lifting, 

as well as no repetitive ascending and descending stairs and no prolonged walking. Appellant also 

submitted a letter accepting a modified job offer on February 16, 2020.

Appellant also submitted a February 26, 2020 work restriction note from Dr. Raasch, 

which advised that appellant could return to work full time on March 7, 2020 with restrictions.

By decision dated February 11, 2021, 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 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.10 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.11

7

5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

8

20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N.,Docket No. 08-1569 

(issued December 9, 2008).

9

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020). 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 (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.

10 Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020);M.S., 59 ECAB 231 (2007).

11 Id. at § 10.608(b);see J.V.,supranote 8; E.R., Docket No. 09-1655 (issued March 18, 2010).
7

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).

In support of her reconsideration request, she argued that her diagnosed right knee 

conditions were causally related to the accepted factors of her federal employment. The Board 

finds that this argument does not show that OWCP erroneously applied or interpreted a specific 

point of law, nor does it advance a relevant legal argument not previously considered by OWCP. 

Consequently, appellant is not entitled to further review of the merits of her claim based on either 

the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).12

The Board further finds that appellant did not submit relevant and pertinent new evidence 

in support of her reconsideration request under 20 C.F.R. § 10.606(b)(3). The underlying issue on 

reconsideration is whether appellant’s diagnosed right knee conditions are causally related to the 

accepted factors of herfederal employment. This is a medical issue which is addressed by relevant 

medical evidence not previously considered.13

With her request for reconsideration, appellant submitted February 3 and 26, 2021 work 

restriction notesfrom Dr. Raasch. However, Dr. Raasch’s notes do not address causal relationship 

and are, therefore, irrelevant to the underlying issue in this case.14 The Board has held that the 

submission of evidence that does not address the particular issue involved does not constitute a 

basis for reopening a case.15 As such, appellant is not entitled to further review of the merits of 

her claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).16

The Board, therefore, finds that OWCP properly determined that appellant was not entitled 

to further review of the merits of her claim pursuant to any of the three requirements under 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.17

12 Supra note 11.

13 Y.L., Docket No. 20-1025 (issued November 25, 2020).

14 See id.

15 See T.T., Docket No. 19-0319 (issued October 26, 2020); AlanG. Williams, 52 ECAB 180 (2000); Jacqueline M. 

Nixon-Steward, 52 ECB 140 (2000).

16 Supra note 11.

17 See C.M., Docket No. 19-1610 (issued October 27, 2020); A.K., Docket No. 09-2032 (issued August 3, 2010);

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).
8

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).18

ORDER

IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 28, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

18 In so far as Dr.Saigh supports an occupational disease caused by appellant’s employment duties over her years 

of employment, appellant may file an occupational disease claim.