United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Birmingham, AL, Employer

__________________________________________

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Docket No. 23-0078

Issued: April 11, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant,1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 21, 2022 appellant, through counsel, filed a timely appeal from a May 11, 2022 

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

days elapsed from OWCP’s last merit decision, dated February 12, 2021, 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 the claim.

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.
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

On September 12, 2020 appellant, then a 48-year-old labor relations human resources 

clerk, filed a traumatic injury claim (Form CA-1) alleging that on September 9, 2020 he suffered 

bilateral quadriceps tendon tears in the knees when he injured himself falling on stairs while in the 

performance of duty. He stopped work on September 9, 2020.

In a September 22, 2020 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed to establish his 

claim and provided a factual questionnaire for his completion. OWCP afforded appellant 30 days 

to submit the necessary evidence.

In an October 9, 2020 response to OWCP’s development questionnaire, appellant related 

that he injured himself when his left foot slipped after reaching the top of the stairs and he fell 

backwards, causing his right leg to become pinned underneath him. He indicated that this event 

caused a rupture of his quadriceps tendons in the knees and left him unable to walk or stand without 

use of leg braces and a walker. 

By decision dated October 27, 2020, OWCP accepted that the September 9, 2020

employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim, 

finding that he had not submitted medical evidence containing a medical diagnosis from a qualified 

physician in connection with the accepted September 9, 2020 employment incident. 

Consequently, OWCP found that the requirements had not been met to establish an injury as 

defined by FECA. 

Appellant continued to submit evidence, including a September 10, 2020 consult note from

Dr. Russell Goode, a Board-certified orthopedic surgeon, assessing a left quadriceps tendon 

rupture and possible right quadriceps tendon rupture. Dr. Goode noted that appellant reported that 

the pain began after appellant’s knees gave out and he fell backward, causing a sharp bilateral 

stabbing pain and inability to walk. 

In a September 11, 2020 operative report, Dr. Goode diagnosed bilateral quadriceps tendon 

ruptures and performed tendon repair surgery. He noted that appellant tolerated the procedure 

well. An October 22, 2020 progress note from Dr. Goode assessed bilateral quadriceps muscle 

strains and six-week status post bilateral quadriceps tendon repairs. 

In physical therapy notes dated October 27 through November 17, 2020, Leslea Wallis, a 

physical therapist, indicated that appellant performed therapeutic exercise. 

On November 17, 2020 appellant requested reconsideration. 

By decision dated February 12, 2021, OWCP modified the October 27, 2020 decision to 

find that the medical evidence of record established a medical diagnosis. However, the claim 
3

remained denied as the medical evidence of record was insufficient to establish that appellant’s 

diagnosed condition was causally related to the accepted September 9, 2020 employment incident.

On February 14, 2022 appellant requested reconsideration of the February 12, 2021 

decision and submitted additional evidence. 

In an October 18, 2021 functional capacity evaluation (FCE), Matthew Hassell, an 

occupational therapist, and David Dimmick, an exercise physiologist, assessed appellant’s 

functional capabilities and limitations and related that appellant sustained an injury when he

slipped on a porch while delivering mail and one foot traveled forward while the other foot 

extended backward, causing immediate pain in both quadriceps. 

A December 30, 2021 letter from the employing establishment related that there had been 

no light-duty work available for appellant since his claimed September 9, 2020 injury. 

In a February 9, 2022 statement, appellant noted that he has worked as a letter carrier for 

24 years and his daily duties consist of delivering and collecting mail on foot or by vehicle in all 

types of weather conditions, carrying mail in shoulder bags weighing up to 35 pounds, and 

unloading mail weighing up to 70 pounds. He related that on September 9, 2020 he exited his 

postal vehicle to make a home delivery, ascended the steps, and slipped on the top step, causing

both legs to become pinned beneath him. Appellant could no longer stand or bear weight on his 

legs. At the hospital, he was diagnosed with ruptured quadriceps tendons of the knees and required

emergency surgery. Appellant related that he remains unable to perform the essential functions of 

his job, including mounting and dismounting his vehicle and navigating stairs, and he has not been 

offered any light-duty work. 

By decision dated May 11, 2022, 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 does not entitle a claimant to review of an OWCP decision as a 

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.5 

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

3

Id. at § 8128(a).

4 20 C.F.R. § 10.607.

5

Id. § 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 OWCP decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). 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.
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considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.6 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.7

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).

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law and did not advance a relevant legal argument not previously considered by OWCP. 

Consequently, he was not entitled to a review of the merits based on the first and second abovenoted requirements under 20 C.F.R. § 10.606(b)(3).

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

evidence not previously considered. The underlying issue in the February 12, 2021 decision is 

causal relationship. In support of his reconsideration request, appellant submitted a February 9, 

2022 statement describing his work duties and the events of September 9, 2020. He also submitted 

an October 18, 2021 FCE from Mr. Hassell, an occupational therapist, and Mr. Dimmick, an 

exercise physiologist. The Board has held that the submission of evidence which does not address 

the particular issue involved does not constitute a basis for reopening a case.8 The Board has 

further held that occupational therapists and exercise physiologists are not considered physicians

as defined under FECA.

9

 Because this evidence does not contain an opinion from a physician 

addressing the issue of causal relationship, it does not constitute probative medical evidence,

10 and 

thus is irrelevant.11 Therefore, the above evidence does not constitute relevant and pertinent new 

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8 R.L., Docket No. 20-1403 (issued July 21, 2021); D.P., Docket No. 13-1849 (issued December 19, 2013).

9 Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R. 

§ 10.5(t). See supra note 5 at Chapter 2.805.3a(1) (January 2013); J.P., Docket No. 22-0061 (issued January 13, 2023) 

(occupational therapists are not considered physicians as defined by FECA); H.K., Docket No. 19-0429 (issued 

September 18, 2019) (a physician assistant, a physical therapist, and an acupuncture specialist are not considered 

“physicians” as defined under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as 

physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); see 

also D.S., Docket No. 18-0353 (issued February 18, 2020) (physical therapists are not considered physicians under 

FECA).

10 R.P., Docket No. 20-0661 (April 14, 2021).

11 See D.C., Docket No. 21-0947 (issued February 6, 2023); F.H., Docket No. 20-0309 (issued January 26, 2021);

T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. NixonSteward, 52 ECB 140 (2000); Edward Matthew Diekemper, 31 ECAB 224 (1979).
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evidence not previously considered by OWCP and appellant was not entitled to a merit review of 

his claim based on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3).12

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.13

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 May 11, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 11, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

12 Id.

13 See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020); 

Susan A. 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).