United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Bell Gardens, CA, Employer

__________________________________________

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Docket No. 21-0910

Issued: January 12, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 24, 2021 appellant filed a timely appeal from a November 23, 2020 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from the last merit decision dated November 6, 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 November 23, 2020, the date of OWCP’s decision, was 

May 22, 2021. As this fell on a Saturday, appellant had until the next business day, Monday, May 24, 2021, to file 

the appeal. See 20 C.F.R. § 501.3(f)(1).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the November 23, 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 November 2, 2006 appellant, then a 40-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 1, 2006 she fractured her right foot when she 

slipped and twisted it while stepping on the vehicle running board in the performance of duty. She

stopped work on November 2, 2006. OWCP accepted the claim for right metacarpal bone fracture

and right plantar fibromatosis. It paid appellant compensation on the supplemental rolls 

commencing December 18, 2006. Appellant subsequently accepted a modified job offer as a 

carrier technician on March 13, 2007 and returned to work on March 16, 2007. OWCP paid her

wage-loss compensation on the periodic rolls, effective June 7, 2009, after the employing 

establishment advised it was no longer able to provide a modified job within herwork restrictions.

4

On April 22, 2019 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

series of questions to Dr. MichaelJ. Einbund, a Board-certified orthopedic surgeon, for a second 

opinion evaluation to determine the status of her accepted conditions, the extent of any disability, 

and appropriate treatment. In a May 10, 2019 report, Dr. Einbund provided physical examination 

findings and noted that appellant’s accepted conditions were closed right metacarpal bone fracture

and right plantar fibromatosis, which had resolved. He explained that he found no evidence of any 

active plantar fibromatosis on examination and that appellant’s fracture had healed without 

residuals.

In a June 11, 2019 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon and 

OWCP district medical adviser (DMA), reviewed the medical evidence including Dr. Einbund’s 

May 10, 2019 report. He agreed with Dr. Einbund’s opinion that appellant’s accepted closed right 

metacarpal bone fracture had healed without any residuals and there was no evidence of right 

plantar fibromatosis.

On June 24, 2019 OWCP advised appellant of its notice of proposed termination of her 

wage-loss compensation and medical benefits as she no longer had disability or residuals due to 

her accepted November 1, 2006 employment injury.

In an attending physician’s supplemental report dated July 5, 2019, Dr. Julie Margaret 

Fuller, a Board-certified internist, provided examination findings and noted permanent work 

restrictions. She diagnosed complex regional pain syndrome type 1, right plantar fasciitis, right 

metatarsal fracture sequela, and tingling sensation due to sinus tarsisyndrome. Dr. Fullerreviewed

Dr. Einbund’s opinion and noted her disagreement that the accepted right ankle and foot conditions 

had resolved without residuals or disability. She reported that appellant continued to have 

symptoms of her November 1, 2006 work injury and required permanent work restrictions.

By decision dated July 26, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective that date. It found that the opinion of Dr. Einbund, the second 

4 By decision dated July 28, 2010, OWCP granted appellant a schedule award for four percent permanent 

impairment of the right lower extremity. The schedule award ran from October 15, 2008 through January 3, 2009. 
3

opinion physician who represented the weight of the evidence and established that she no longer 

had disability or residuals due to her accepted employment injury.

On August 8, 2019 appellant requested reconsideration.

By decision dated November 6, 2019, OWCP denied modification of its July 26, 2019 

termination decision. 

On April 22, 2020 appellant requested reconsideration. She argued that Dr. Einbund 

provided contradictory statements and, thus, his opinion was insufficient to establish that sh e no 

longer had any residuals or disability due to her accepted employment injury.

By decision dated May 7, 2020, OWCP denied appellant’s request for reconsideration. 

OWCP subsequently received letters dated July 20, August 3, September 14 and 28, 2020, 

wherein the Social Security Administration (SSA) requested that OWCP provide copies of 

appellant’s medical records as she had filed an application for disability benefits. 

On November 6, 2020 appellant requested reconsideration.

By decision dated November 23, 2020, OWCP denied appellant’s request for 

reconsideration.

LEGAL PRECEDENT

Section 8128(a) of FECA5 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. 6

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.7

5

5 U.S.C. § 8128(a).

6

Id.; see A.A., Docket No. 20-1564 (issued August30, 2021); J.C., Docket No. 20-0614 (issued February 10, 2021);

L.D., Docket No. 18-1468 (issued February 11, 2019);see also V.P.,Docket No. 17-1287 (issued October 10, 2017);

W.C., 59 ECAB 372 (2008).

7

20 C.F.R. § 10.606(b)(3);see A.A., id.; 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).
4

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

OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.9 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.10

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 her timely request for reconsideration, 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. Consequently, she is not entitled to review of the merits of her 

claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).11

Additionally, appellant has not submitted relevant and pertinent new evidence not 

previously considered by OWCP. Following the issuance of the May 7, 2020 decision, OWCP 

received letters from SSA requesting copies of appellant’s medical records as she had filed for 

disability benefits. This evidence, however, is irrelevant as it is not medical evidence. The Board 

has held that the submission of evidence that does not address the underlying issue involved does 

not constitute a basis for reopening a case.12 As appellant did not provide relevant and pertinent 

new evidence, she is not entitled to a merit review based on the third 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

8

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 2.1602.4(b).

9

Id. at § 10.608(a); see F.V.,Docket No. 18-0230 (issued May 8, 2020);M.S., 59 ECAB 231 (2007).

10 Id. at § 10.608(b) see B.S., Docket No. 20-0761 (issued January29, 2021);E.R., Docket No. 09-1655 (issued 

March 18, 2010).

11 F.R., Docket No. 20-1406 (issued March 2, 2021); M.O., Docket No. 19-1677 (issued February 25, 2020); E.W., 

Docket No. 19-1393 (issued January 29, 2020); C.B.,Docket No. 18-1108 (issued January22, 2019).

12 E.J., Docket No. 20-0841 (issued February 12, 2021); T.T., Docket No. 19-1624 (issued October 28, 2020); 

Edward Matthew Diekemper, 31 ECAB 224 (1979).

13 See R.E., Docket No. 21-0172 (issued June15, 2021); T.W., Docket No. 18-0821 (issued January 13, 2020).

14 See R.E., id.; J.B., Docket No. 20-0145 (issued September 8, 2020).
5

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).

ORDER

IT IS HEREBY ORDERED THAT the November 23, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 12, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board