United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.B., Appellant

and

U.S. POSTAL SERVICE, ROYERSFORD POST 

OFFICE, Royersford, PA, Employer

__________________________________________

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Docket No. 21-0723

Issued: April 13, 2022

Appearances: Case Submitted on the Record

Russell T. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On April 14, 2021 appellant, through counsel, filed a timely appeal from an October 20, 

2020 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards assigned Docket No. 21-0723.

This case has previously been before the Board.2 The facts and circumstances of the case 

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

as follows.

On November 16, 2016 appellant, then a 62-year-old carrier technician, filed an 

occupational disease claim (Form CA-2) alleging that he sustained a bilateral knee condition

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 Docket No. 19-1532 (issued April30, 2020).
2

causally related to factors of his federal employment.

3

 He noted that he first became aware of his 

condition on June 4, 2014 and realized its relationship to his federal employment in October 2016. 

OWCP, by decision dated February 1, 2017, denied appellant’s occupational disease claim, finding 

that the medical evidence of record was insufficient to establish a diagnosed medical condition in 

connection to the accepted factors of his federal employment. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

On February 28, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. On April 27, 2017 counsel requested 

that appellant’s request for an oral hearing be converted to a review of the written record. By 

decision dated June 9, 2017, an OWCP hearing representative affirmed the February 1, 2017 

decision, finding that appellant had not submitted any medical evidence to establish his claim.

Subsequently, appellant, through counsel, submitted a January 29, 2018 medical report 

from Dr. Laura E. Ross, an attending Board-certified orthopedic surgeon.

On May 18, 2018 appellant, through counsel,requested reconsideration of the June 9, 2017 

decision and submitted a May 7, 2018 report from Dr. Ross.

By decision dated July 30, 2018, OWCP modified its June 9, 2017 decision to reflect that

the denial of appellant’s claim was based on the finding thatDr. Ross failed to submit a rationalized 

opinion explaining how appellant’s diagnosed bilateral knee conditions and bilateral total knee 

arthroplasties were causally related to the accepted employment factors. 

On November 1, 2018 appellant, through counsel, requested reconsideration and submitted 

an October 26, 2018 report from Dr. Ross.

By decision dated January 30, 2019, OWCP denied modification of its July 30, 2018 

decision, finding that Dr. Ross’ October 26, 2018 report was insufficient to establish causal 

relationship as it was based on an incomplete and inaccurate medical history.

On July 10, 2019 appellant, through counsel, appealed OWCP’s January 30, 2019 decision 

to the Board. By order dated April 30, 2020,4the Board set aside the January 30, 2019 decision 

and remanded the case to OWCP to administratively combine the current claim under OWCP File 

No. xxxxxx343 with appellant’s prior claims under OWCP File Nos. xxxxxx212 and xxxxxx749, 

and following any further development, OWCP was directed to issue a de novo decision on the 

merits of appellant’s claim.

3 Appellant has two prior claimsinvolving injuries to his knees. He filed a traumatic injury claim (Form CA-1) for 

a left knee injury sustained on March8, 2012 under OWCP File No. xxxxxx283. Appellant filed an occupational 

disease claim for left hip and knee injuriessustained on June4, 2014 under OWCP File No. xxxxxx212. He filed an 

additionaltraumatic injury claim for a left knee injury sustained on May16, 2015 under OWCP File No. xxxxxx749, 

which OWCP accepted for sprain and medial meniscus tear of the left knee. 

4

Id.
3

On remand, OWCP administratively combined the claims with the present claim assigned 

OWCP File No. xxxxxx343 serving as the master file. 

On remand, OWCP, by decision dated October 20, 2020, denied modification of its prior

denial of appellant’s occupational disease claim. It found that the Board had remanded the case 

for a “new reconsideration decision” and that there was no rationalized medical evidence of record 

sufficient to establish that his diagnosed bilateral knee conditions were causally related to the 

accepted employment factors. The appeal rights attached to the decision noted that appellant could 

request either reconsideration before OWCP or review by the Board.

By letter dated October 28, 2020, counsel requested that OWCP issue a de novo decision, 

pursuant to the Board’s instructions, instead of a reconsideration decision. He informed OWCP 

that the appeal rights attached to the October 20, 2020 decision included a request for 

reconsideration before OWCP or an appeal to the Board, but did not include the right to an oral 

hearing before a representative of OWCP’s Branch of Hearings and Review. Counsel then 

requested an oral hearing and contended that if a proper decision had been issued by OWCP on 

October 20, 2020 then his request was timely made. On November 2, 2020 OWCP responded that 

the October 20, 2020 decision was issued in response to a November 1, 2018 request for 

reconsideration. On November 9, 2020 counsel informed OWCP that the October 20, 2020 

decision was issued in response to the Board’s remand order for a de novo decision. By letter 

dated January 20, 2021, he followed up on his November 9, 2020 correspondence requesting a 

response. In a February 4, 2021 response letter, OWCP referenced the October 20, 2020 decision 

and noted that it came with appeal rights of reconsideration or appeal to the Board. On 

February 11, 2021 counsel again requested that OWCP issue a de novo decision, as ordered by the 

Board. OWCP responded by letter dated March 31, 2021, acknowledging that it was directed by 

the Board’s order to issue a de novo decision based on its review of new evidence and a 

combination of appellant’s three claims. It also stated that a reconsideration decision carried the 

same rights as a de novo decision. 

On appeal, counsel contends that on October 20, 2020 OWCP failed to issue a “de novo”

decision as instructed by the Board’s April 30, 2020 orderremanding the case and instead it issued 

a reconsideration decision on that date, which did not grant rights to a hearing before the Branch 

of Hearings and Review. He notes that, while on March 31, 2021 OWCP acknowledged that it 

was ordered by the Board to issue a de novo decision, it also found that a reconsideration decision 

carried the same appeal rights as a de novo decision.

The Board finds that appellant is entitled to a hearing, before a representative of OWCP’s 

Branch of Hearings and Review, pursuant to his October 28, 2020 request for a hearing. 

Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing 

must not have previously submitted a reconsideration request (whether or not it was granted) on 

the same decision.5 However, as the Board explained in L.A.,

6

if it remands a case to OWCP for 

5

20 C.F.R. § 10.616(a).

6 Docket No. 21-0048 (issued July 19, 2021).
4

a de novo decision, the request for hearing is from the de novo decision, which carries full appeal 

rights, including a right to a hearing before an OWCP hearing representative.

Appellant timely filed his hearing request on October 28, 2020, which was less than 30 

days after OWCP’s October 20, 2020 decision. Therefore, as he filed a valid, timely hearing 

request, the case must be remanded to OWCP to hold a hearing before a representative of OWCP’s 

Branch of Hearings and Review, to be followed by the issuance of a de novo merit decision.7

IT IS HEREBY ORDERED THAT the October 20, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: April 13, 2022

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

7

Id.