United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

SMITHSONIAN INSTITUTION, NATIONAL 

ZOOLOGICAL PARK, Washington, DC, 

Employer 

__________________________________________ 

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Docket No. 14-1083 

Issued: July 2, 2015 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 9, 2014 appellant, through his representative, filed a timely appeal from the 

March 27, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), 

which denied his reconsideration request. Pursuant to the Federal Employees’ Compensation 

Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, and since more than 180 days elapsed 

between the last merit decision on January 30, 2013 and the filing of this appeal, the Board lacks 

jurisdiction to review the merits of the claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s reconsideration request pursuant 

to 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On April 15, 2005 appellant, a 54-year-old utility systems repair operator, sustained a 

traumatic injury in the performance of duty when he fell and hit his head and twisted his ankle 

while helping to move a pallet in the main boiler room. OWCP accepted his claim for facial 

laceration; right ankle strain; fracture of the fifth metatarsal on the right foot; L4-5 lumbar 

radiculopathy, for which he underwent a lumbar spinal herniated disc decompression with L3 

laminectomy and L4-5 foraminotomies; and aggravation of preexisting cervical discogenic 

disease and cervical spondylolisthesis, for which he underwent a C4-5 anterior cervical 

discectomy. 

In a decision dated January 30, 2013, OWCP denied appellant’s schedule award claim on 

the grounds that the medical evidence did not support an impairment to a scheduled member or 

function of the body. Dr. Kenneth W. Eckmann, a Board-certified neurologist and second 

opinion physician, had found no evidence of cervical or lumbar radiculopathy or complex 

regional pain syndrome. It was his impression that appellant’s active pathophysiological 

processes were peripheral neuropathy and bilateral ulnar neuropathy, to which he was highly 

predisposed by virtue of his long-standing diabetes mellitus and history of renal failure and 

dialysis. OWCP’s medical adviser concurred that appellant had no impairment of the upper or 

lower extremities based on the accepted medical conditions. 

On January 16, 2014 OWCP received appellant’s reconsideration request. Appellant 

argued that OWCP failed to consider the June 18, 2012 impairment evaluation provided by 

Dr. Daniel R. Ignacio, the attending Board-certified physiatrist, who calculated a 35 percent 

impairment of the right upper extremity, a 30 percent impairment of the left upper extremity, a 

52 percent impairment of the right lower extremity, and a 35 percent impairment of the left lower 

extremity, with references to specific tables and pages in the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (6th ed. 2009). Appellant added that OWCP 

failed to refer to Dr. Ignacio’s impairment evaluation to OWCP’s medical adviser. 

Appellant supported his reconsideration request with an updated report from Dr. Ignacio. 

On December 26, 2013 Dr. Ignacio reviewed the opinions of Dr. Eckmann and the medical 

adviser and disagreed. In his opinion, it was very clear that appellant had a serious and complex 

spinal injury both in the cervical and lumbar spine, which required multiple surgeries. “Given 

this amount of spinal injuries and nerve injuries, it is expected to have significant sequelae.” 

Dr. Ignacio noted that appellant in fact had significant weakness of the lower limbs with loss of 

balance and limited use along the upper extremities. He disagreed with Dr. Eckmann that there 

were no findings of cervical or lumbar radiculopathy, as this was fairly well established from the 

beginning of the injury in 2005 up to the present time. Dr. Ignacio also disagreed with 

Dr. Eckmann that appellant had no impairment in the upper and lower extremities. 

In a decision dated March 27, 2014, OWCP denied appellant’s reconsideration request. It 

noted that Dr. Ignacio’s impairment evaluation was previously considered and reviewed in its 

January 30, 2013 decision. 
3

LEGAL PRECEDENT 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or upon application.2

 An employee (or representative) seeking reconsideration 

should send the request for reconsideration to the address as instructed by OWCP in the final 

decision. The request for reconsideration, including all supporting documents, must be in 

writing and must set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.3

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.4

 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or argument that meets at 

least one of the standards for review. If reconsideration is granted, the case is reopened and the 

case is reviewed on its merits. Where the request is timely but fails to meet at least one of these 

standards, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.5

ANALYSIS 

OWCP received appellant’s reconsideration request within one year of its January 30, 

2013 merit decision denying his schedule award claim. The request is therefore timely. The 

question for determination is whether the request meets at least one of the standards for obtaining 

a merit review of his case. 

The Board has undertaken a limited review of OWCP’s January 30, 2013 decision and 

notes that the decision makes no mention of the June 18, 2012 impairment evaluation performed 

by Dr. Ignacio, the attending physiatrist. OWCP’s medical adviser’s review of the file also 

makes no mention of this evaluation, which OWCP first received in July 2012. Appellant argues 

this was in error. In reaching any decision with respect to FECA coverage or entitlement, 

OWCP must consider all the new evidence presented by the claimant.6

 OWCP failed to do that 

in this case. Accordingly, the Board finds that appellant’s reconsideration request advanced new 

evidence not previously considered by OWCP. 

As appellant’s reconsideration request met at least one of the standards for obtaining a 

merit review of his case, the Board finds that OWCP improperly denied reconsideration. The 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.606. 

4 Id. at § 10.607(a). 

5 Id. at § 10.608. 

6 Id. at § 10.125(a). 
4

Board will therefore reverse OWCP’s March 27, 2014 decision and remand the case for an 

appropriate decision on appellant’s schedule award claim. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s reconsideration request. 

Appellant’s request met at least one of the standards for obtaining a merit review of his case. 

ORDER 

IT IS HEREBY ORDERED THAT the March 27, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed and the case remanded for further action. 

Issued: July 2, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board