United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

E.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Richmond, VA, Employer 

___________________________________________

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Docket No. 14-2018 

Issued: February 18, 2015 

Appearances: Case Submitted on the Record 

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 19, 2014 appellant filed a timely appeal from the April 17, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP), denying her request for 

further merit review of her claim. As the last merit OWCP decision was issued on April 2, 2013 

more than 180 days from the filing of this appeal, the Board does not have jurisdiction over the 

merits of the claim. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been on appeal before the Board. In a June 2, 2005 decision, the 

Board found that appellant did not meet her burden of proof to establish that she sustained a 

recurrence of disability causally related to her accepted right thoracic outlet syndrome.2 On 

November 29, 2012 the Board issued an order remanding case.3 In the remand order, the Board 

set aside the November 25, 2011 OWCP decision, which denied a merit review with regard to 

whether appellant had established permanent impairment of an upper extremity. The Board 

found that while OWCP stated that certain documents submitted by appellant were not of record, 

the evidence showed that OWCP had received these documents. The Board remanded the case 

for OWCP to obtain these records and to conduct a merit review of the claim. The facts and 

history contained in the prior appeals are incorporated by reference. 

Subsequent to the Board’s November 29, 2012 order, OWCP, in an April 2, 2013 

decision, denied appellant’s claim for a schedule award. It found that the medical evidence of 

record did not support a permanent impairment to a scheduled member or function of the body as 

a result of her December 17, 1997 occupational injury. 

On March 12, 2014 appellant requested reconsideration. She advised that she was 

enclosing additional evidence. In an August 22, 2013 treatment note, Dr. Kimberly Monnell, a 

Board-certified neurologist, noted appellant’s history, reported findings, and diagnosed brachial 

plexus palsy, cervical spondylosis, right arm pain, and carpal tunnel syndrome of the right wrist. 

In a March 7, 2014 report, Dr. Monnell noted that appellant was seen for right brachial 

plexopathy, chronic and cervical spondylosis and released from care. A July 9, 2013 

electromyogram (EMG) and nerve conduction study (NCS) performed for Dr. Monnell showed a 

sensory neuropathy of the upper extremities and possible signs of brachial plexopathy on the 

right. 

A June 3, 2014 magnetic resonance imaging (MRI) scan of the cervical spine, read by 

Dr. John M. Razook, a Board-certified diagnostic radiologist, revealed moderate to severe 

multilevel foraminal stenosis, moderate multilevel thecal sac stenosis, involving her C4-5 and 

C5-6 levels, and no bone marrow edema. OWCP also received an October 29, 2013 functional 

capacity evaluation (FCE). 

In a decision dated April 17, 2014, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant review of its prior decision. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits if the written 

 2

 Docket No. 05-78 (issued June 2, 2005). 

3

 Docket No. 12-460 (issued November 29, 2012). 

4

 5 U.S.C. § 8128(a). 
3

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”5

 Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.6

ANALYSIS 

In an April 3, 2013, decision, OWCP denied appellant’s claim for a schedule award. It 

found that the evidence did not support permanent impairment. Appellant timely requested 

reconsideration on March 12, 2014. The issue presented is whether she met any of the 

requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the 

merits of the claim. In her application for reconsideration, appellant did not contend that OWCP 

erroneously applied or interpreted a specific point of law. She did not advance a new and 

relevant legal argument. 

Appellant submitted new evidence which included an August 22, 2013 treatment note 

from Dr. Monnell, who noted her history, findings, and diagnoses. She also provided a March 7, 

2014 report in which Dr. Monnell noted that appellant was seen for right brachial plexopathy, 

chronic and cervical spondylosis and released from care. Appellant further submitted a July 9, 

2013 EMG and NCS report, a June 3, 2014 cervical spine MRI scan report by Dr. Razook, and 

an October 29, 2013 FCE report. However, none of the reports provided a physician’s 

permanent impairment rating caused by her accepted condition. The Board finds that these 

reports are not relevant to the issue of whether appellant has impairment to a scheduled member 

or function of her body as a result of her accepted condition.7

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP or 

constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

 5

 20 C.F.R. § 10.606(b). 

6 Id. at § 10.608(b). 

7 Joseph A. Brown, Jr., 55 ECAB 542 (2004). 
4

On appeal, appellant argued that she had a new impairment rating and submitted new 

evidence with her appeal. The Board has no jurisdiction to review this evidence for the first time 

on appeal.8 However, appellant may request a schedule award or increased schedule award 

based on evidence of a new exposure or medical evidence showing progression of an 

employment-related condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the April 17, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 18, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8

 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).