United States Department of Labor

Employees’ Compensation Appeals Board

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J.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Scarborough, ME, Employer

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Docket No. 21-0226

Issued: February 16, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On December 1, 2020 appellant filed a timely appeal from a September 22, 2020 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate 

Boards docketed the appeal as No. 21-0226.

This case has previously been before the Board.1 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On September 25, 2017 appellant, then a 46-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he experienced discomfort in his left thumb and 

corresponding tendons in his left arm as a result of his repetitive movements at work, which 

included culling, ripping, and stripping on a preparation area designed for right-handed 

individuals. He noted that he first became aware of his conditions on August 25, 2017 and their 

relationship to his federal employment on September 22, 2017. On the reverse side of the claim 

form, the employing establishment indicated that appellant was last exposed to the work conditions 

alleged to have caused his conditions on September 25, 2017.

1 Docket No. 19-1844 (issued August14, 2020).
2

OWCP, by decision dated November 28, 2017, denied appellant’s occupational disease 

claim, finding that the medical evidence of record was insufficient to establish that his diagnosed 

rupture of the extensor tendon of the left thumb was causally related to the accepted factors of his 

federal employment. On December 9, 2017 appellant requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated July 12, 2018, the hearing representative affirmed the November 28, 

2017 decision, finding that the medical evidence submitted was insufficient to establish causal 

relationship between appellant’s diagnosed medical condition and his accepted employment 

factors. 

On October 26, 2018 appellant requested reconsideration. He indicated that a 

September 18, 2018 letter from Dr. Therese K. White, an attending Board-certified plastic 

surgeon, accompanied his reconsideration request.

By decision dated January 18, 2019, OWCP denied appellant’s request for reconsideration

of the merits of his claim pursuant to 5 U.S.C. § 8128(a), finding that it neither raised substantive 

legal questions, nor included relevant and pertinent new evidence. It noted that Dr. White’s

September 18, 2018 report was not received. 

On March 19, 2019 appellant again requested reconsideration.

In an unsigned decision dated April 23, 2019, OWCP denied appellant’s March 19, 2019 

request for reconsideration of the merits of his claim pursuant to section 8128(a) of FECA, finding 

that it neither raised substantive legal questions, nor included relevant and pertinent new evidence. 

It again indicated that Dr. White’s September 18, 2018 report did not accompany appellant’s 

reconsideration request. 

On July 23, 2019 appellant again requested reconsideration. In support of his request, he 

submitted Dr. White’s September 18, 2018 report, wherein she opined that appellant sustained an

extensor tendon rupture of his left thumb due to his repetitive work duties as a mail handler and 

provided medical rationale in support of her opinion.

By decision dated August 7, 2019, OWCP denied appellant’s July 23, 2019 request for 

reconsideration,finding that it was untimely filed and failed to demonstrate clear evidence of error.

On September 3, 2019 appellant appealed OWCP’s April 23 and August 7, 2019 decisions 

to the Board. By decision dated August 14, 2020,2the Board set aside the April 23, 2019 decision. 

The Board found that OWCP failed to follow its procedures when it issued its April 23, 2019 

decision denying appellant’s March 19, 2019 request for reconsideration, as the contested decision 

was unsigned and did not confirm that it was issued by a senior claims examiner not involved in 

the prior decisions. In light of the Board’s disposition, the remaining issue of whether OWCP 

properly denied appellant’s July 23, 2019 request for reconsideration as untimely filed and failing 

2

Id.
3

to demonstrate clear evidence of error was rendered moot. The Board remanded the case for

OWCP to issue an appropriate merit decision after any further development as deemed necessary. 

On remand, OWCP issued a September 22, 2020 nonmerit decision, again denying

appellant’s July 23, 2019 request for reconsideration, finding that it was untimely filed and failed 

to demonstrate clear evidence of error.

The Board having reviewed this matter, finds that this case is not in posture for decision as 

OWCP has not complied with the Board’s instructions as set forth in its August 14, 2020 decision. 

By that decision, the Board found that OWCP failed to follow its procedures when it issued its 

April 23, 2019 decision denying appellant’s March 19, 2019 request for reconsideration. The 

Board set aside the issue of whether OWCP properly denied appellant’s July 23, 2019 

reconsideration request as moot. On remand, OWCP was to issue an appropriate merit decision

regarding appellant’s occupational disease claim. Instead, it issued a nonmerit decision, again 

finding that appellant’s July 23, 2019 request for reconsideration was untimely filed and failed to 

demonstrate clear evidence of error. OWCPdid not issue an appropriate merit decision addressing

appellant’s occupational disease claim as so instructed by the Board. 

The Board has final authority to determine questions of law and fact. The Board’s 

decisions are binding upon OWCP and must, of necessity, be so accepted and acted upon by the 

Director of OWCP.3 A decision of the Board is final upon the expiration of 30 days following the 

date of its order and, in the absence of new review by the Director, the subject matter is res judicata

and not subject to further consideration by the Board.4 The Board has already considered whether 

OWCP properly denied appellant’s July 23, 2019 request for reconsideration in its August 14, 

2020 decision which set aside that issue as moot.

OWCP has not issued a decision in which it followed the directives of the Board in its 

August 14, 2020 decision, i.e., it has not issued an appropriate merit decision containing adequate 

facts, findings, and reasoning regarding appellant’s occupational disease claim. The case is,

therefore, again remanded for OWCP to consider all the evidence of record and, following any 

further development as deemed necessary, issue an appropriate merit decision on appellant’s 

occupational disease claim. 

3

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84 (1949). See also J.S. 

Docket No. 12-622(issued September 12, 2012);L.C., Docket No. 09-1816 (issued March 17, 2010) (OWCP did not 

follow the Board’s instructionsin ascertaining the information necessary to determine pay rate); Frank W. White, 42 

ECAB 693 (1991)(the Board’s order in a prior appeal imposed an obligation on the Director to take particular actions 

as directed).

4 See 20 CFR § 501.6(d); ClintonE. Anthony, Jr., 49 ECAB 476, 479 (1998). There is no indication that a petition 

for reconsideration was filed within 30 days of the issuance of the Board’s August14, 2020 decision and, therefore, 

the decision became final after 30 days. 20 CFR § 501.6(d).
4

IT IS HEREBY ORDERED THAT the September 22, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board.

Issued: February 16, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board