United States Department of Labor

Employees’ Compensation Appeals Board

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S.R., Appellant

and

DEPARTMENT OF THE NAVY, PRODUCTION 

RESOURCES DEPARTMENT, ELECTRICAL 

SHOP, PORTSMOUTH NAVAL SHIPYARD, NH, 

Employer

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Docket No. 23-1095

Issued: January 8, 2024

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 14, 2023 appellant filed a timely appeal from a February 15, 2023 nonmerit 

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

has elapsed from the last merit decision, dated January 4, 2023, 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 to review the merits of this case. 2

ISSUE

The issue is whether OWCP properly denied reconsideration of the merits of the claim, 

pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2 Appellant requested an appeal from a January 4, 2023 merit decision. However, Under the Board’s Rules of 

Procedure, an appeal must be filed within 180 days from the date of issuance of an OWCP decision. The 180th day 

following OWCP’s January4, 2023decision was July3, 2023. An appeal is considered filed upon receipt by the 

Clerk of the Appellate Boards. 20 C.F.R. § 501.3(e)-(f). As this appeal was received on August14, 2023, the Board 

lacks jurisdiction to review the January4, 2023 merit decision. S.N., Docket No. 22-1048 (issued April3, 2023); see 

P.H., Docket No. 19-1354 (issued March 13, 2020); E.H., Docket No. 19-0859 (issued December 10, 2019).
2

FACTUAL HISTORY

On November 16, 2021 appellant, then a 62-year-old electronic mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on November 4, 2021 he injured his left knee 

while in the performance of duty. He indicated that he was “kneeling” on his left knee in order 

to retrieve materials from a toolbox at the time of injury, and the pain worsened over several 

days. On the reverse side of the claim form, appellant’s supervisor acknowledged that appellant 

was injured in the performance of duty. The form indicated that appellant stopped work on 

November 10, 2021. 

Appellant was initially seen on November 10, 2021 by Dr. Mark M. Grossman, a Boardcertified orthopedic surgeon, who diagnosed a left knee sprain. On November 12, 2021 appellant 

was seen by Jade A. O’Donovan, a nurse practitioner, for left knee pain. 

In a development letter dated December 28, 2021, OWCP informed appellant of the 

deficiencies in his claim. It advised appellant of the type of additional factual and medical 

evidence necessary to establish his claim and provided a questionnaire for his completion. 

OWCP afforded appellant 30 days to respond.

OWCP received November 12, 2021 and January 11, 2022 reports from Dr. Thomas N. 

Decker, a Board-certified internist, which indicated that appellant was seen for left knee pain.

By decision dated February 2, 2022, OWCP found that the November 4, 2021 incident 

occurred as alleged; however, it denied appellant’s traumatic injury claim, finding that the 

evidence of record was insufficient to establish a diagnosed medical condition in connection with 

the accepted employment incident. It concluded, therefore, that the requirements had not been 

met to establish an injury as defined by FECA.

An x-ray report of the left knee dated January 11, 2022 and signed by Dr. Shawn M. 

Reyder, a Board-certified diagnostic radiologist, showed a “radiographically” normal left knee. 

On March 7, 2022 appellant requested reconsideration.

In support of his reconsideration request, appellant submitted a treatment note from 

Nathan P. Vassill, a physician assistant, dated January 18, 2022. He related left knee pain that 

began on November 4, 2021 after standing up from kneeling at work. Appellant further noted 

the pain increased thereafter. Mr. Vassill reviewed x-rays and a radiology report and believed the 

very mild medial joint space narrowing “may” be consistent with mild osteoarthritis. He

diagnosed acute left knee pain and placed appellant on restricted duty.

Appellant further resubmitted the x-ray report of his left knee dated January 11, 2022.

OWCP also received a March 4, 2022 note from Ms. O’Donovan, now co-signed by

Dr. Randall Zielinski, a Board-certified internist, which noted a diagnosis of left knee pain. 

By decision dated June 1, 2022, OWCP denied modification of its February 2, 2022 

decision.

Appellant thereafter resubmitted his treatment note from Mr. Vassill, dated January 18, 

2022, now co-signed by Dr. David C. Thut, a Board-certified orthopedic surgeon, as well as the 

left knee x-ray report dated January 11, 2022.
3

On December 14, 2022 appellant requested reconsideration.

In support thereof, appellant submitted an after-visitsummary dated November 7, 2022, 

wherein Dr. Webb diagnosed acute medial meniscus tear of the left knee and opined that 

appellant’s medical history and physical examination were consistent with a meniscal tear. 

Appellant also submitted a state form report of even date, wherein Dr. Webb reiterated his 

diagnosis and placed appellant on restricted duty.

By decision dated January 4, 2023, OWCP modified its June 1, 2022 decision to find that 

appellant had established a diagnosed knee condition in connection with the accepted 

employment incident. The claim remained denied, however, as the medical evidence of record 

was insufficient to establish causal relationship between the diagnosed condition and the 

accepted employment incident.

By decision dated February 15, 2023, 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 

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 reconsideration of the merits of appellant’s 

claim, pursuant to 5 U.S.C. § 8128(a).

3 This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on [his/her] own motion or on application. 5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.

5

Id. at § 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.

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(a), (b).
4

OWCP did not receive any further argument following the January 4, 2023 merit 

decision. The Board therefore finds that appellant did not show that OWCP erroneously applied 

or interpreted a specific point of law, or advance a relevant legal argument not previously 

considered by OWCP. Consequently, appellant is not entitled to further review of the merits of 

his claim based on either the first or second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3).

Appellant also did not submit any relevant and pertinent new evidence following 

January 4, 2023. Therefore, he is not entitled to further review of the merits of his claim based 

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

The Board, accordingly, finds that pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied merit review.

CONCLUSION

The Board further finds that OWCP properly denied reconsideration of the merits of the

claim, pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the February 15, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 8, 2024

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board