United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lincolnwood, IL, Employer 

__________________________________________ 

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Docket No. 15-1036 

Issued: August 3, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 7, 2015 appellant filed a timely appeal from a February 2, 2015 nonmerit 

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

elapsed from the last merit decision of March 12, 2014 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 over the merits of this claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

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

FACTUAL HISTORY 

On March 7, 2013 appellant, then a 32-year-old city carrier, filed a traumatic injury claim 

alleging that on March 5, 2013 she twisted her right ankle in the snow while in the performance 

 1

 5 U.S.C. § 8101 et seq. 
2

of her federal duties. Following development, OWCP accepted the condition of right foot sprain 

and paid appropriate benefits. It subsequently upgraded the accepted conditions to include 

lisfranc tendon sprain. 

Appellant filed a Form CA-7 claim for a schedule award on November 18, 2013. OWCP 

received a January 7, 2014 report from a physical therapist, Paul S. Pepich. In this report, 

Mr. Pepich related that he had evaluated appellant for permanent impairment, pursuant to the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides). He concluded that while appellant still reported pain and functional limitations in her 

life, according to the A.M.A., Guides, she had no ratable impairment. 

By decision dated March 12, 2014, OWCP denied appellant’s claim for a schedule award 

as the evidence was insufficient to establish that she sustained permanent impairment to a 

scheduled member due to her accepted work injury. 

On January 21, 2015 OWCP received appellant’s January 13, 2015 request for 

reconsideration in which she alleged that she was not given a follow-up magnetic resonance 

imaging (MRI) scan during the impairment rating and was only given an x-ray with the initial inperson test through her healthcare provider. Appellant contended that this one major lapse led 

her to believe that her initial rating did not produce the results needed to make the correct 

decision for an impairment rating. She also asserted that she has a lisfranc tendon sprain in her 

right foot and needed to wear arch supporting shoes for the remainder of her life. Appellant 

stated that the MRI scan would yield the conclusive results as to whether she reached maximum 

medical improvement and she was not provided one during the impairment rating. 

By decision dated February 2, 2015, OWCP denied reconsideration without reviewing 

the merits of the case. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

OWCP regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.3

 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.4

 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.5

 

 2

 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

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

3

 20 C.F.R. § 10.606(b)(2). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b). 
3

ANALYSIS 

The Board finds that appellant’s request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Consequently, appellant was not entitled to a review of the merits based on the first and second 

above-noted requirements under 20 C.F.R. § 10.606(b)(2). 

The Board also finds that appellant did not provide any relevant or pertinent new 

evidence warranting the reopening of the case on the merits. While appellant believes further 

diagnostic testing should have been provided prior to rendering an impairment rating, this is a 

medical determination. Thus, this allegation, without more information, is insufficient to reopen 

appellant’s claim for further merit review. The underlying issue in this case, entitlement to 

schedule award compensation, is a medical issue and must be addressed by relevant new medical 

evidence.6 Appellant’s statement and further explanation of her injury is not relevant and 

pertinent to the underlying issue in this case. Therefore, it is insufficient to require OWCP to 

reopen her claim for consideration of the merits. 

The Board finds that appellant did not show that OWCP erroneously interpreted a 

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

relevant and pertinent new evidence not previously considered by OWCP. Appellant did not 

meet any of the regulatory requirements and OWCP properly declined to reopen her claim for 

further merit review.7

 

On appeal appellant alleges that she has a lisfranc tendon sprain of her right foot and has 

yet to be compensated for that condition. OWCP accepted the conditions of right foot sprain and 

lisfranc tendon sprain and found the evidence of record insufficient to support entitlement to a 

schedule award. 

 6 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

7 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the 

case for a review on the merits). 
4

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 

5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the February 2, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board