United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.C., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

AIRCRAFT MAINTENANCE SQUADRON, 

ROBINS AIR FORCE BASE, GA, Employer 

__________________________________________ 

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Docket No. 16-0613 

Issued: May 16, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 1, 2016 appellant filed a timely appeal from a September 3, 2015 nonmerit 

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

elapsed since the last merit decision of OWCP, dated July 7, 2015, 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 appellant’s requests for further merit review 

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

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted new evidence on appeal after OWCP rendered its September 3, 2015 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the Board lacks jurisdiction to review this new evidence. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On April 20, 2015 appellant, then a 59-year-old aircraft overhaul supervisor, filed a 

notice of occupational disease (Form CA-2) claiming that he sustained a basal joint arthrosis of 

the left thumb on or before August 15, 2014. He attributed the condition to a 25-yearoccupational history of using hand tools, pneumatic tools, impact wrenches, air ratchets, drills, 

and working with heavy equipment. Appellant did not stop work.3

In an April 30, 2015 letter, OWCP advised appellant of the additional evidence needed to 

establish his claim, including a report from his attending physician explaining how and why the 

identified work factors would cause the claimed condition. It afforded appellant 30 days to 

submit such evidence. 

In response, appellant submitted personnel documents corroborating that his duties as a 

mechanic and supervisor required the use of hand and pneumatic tools, as well as repetitive 

heavy lifting, from December 1991 onward. He also provided correspondence from previous 

claims under File No. xxxxxx204 and subfile xxxxxx409, accepted for intermittent left wrist 

tendinitis sustained on or before April 1, 2004. Appellant also submitted OWCP correspondence 

from File No. xxxxxx069 accepting that on December 29, 2006, he sustained a crush injury to 

the left index and middle fingers, a closed fracture of a left metacarpal bone, and closed 

dislocation of a finger on the left hand. 

In a September 14, 2005 report, Dr. P. Jeffrey Jarrett, an attending Board-certified 

orthopedic surgeon, noted that appellant was developing carpometacarpal arthritis of the left 

thumb, with increased symptoms while working as an aircraft mechanic. He noted that appellant 

had “no other history of any injury or surgery to his thumb.” Dr. Jarrett opined on January 20, 

2009 that appellant’s left thumb condition was not related to the December 29, 2006 

employment-related crush injury. He recommended left thumb surgery. In a March 31, 2009 

report, Dr. Jarrett opined that, within a reasonable degree of medical certainty, appellant’s 

carpometacarpal joint arthritis of the left thumb developed due to the left wrist tendinitis 

accepted under File No. xxxxxx204. 

In a January 7, 2010 report, Dr. Guy D. Foulkes, an attending Board-certified orthopedic 

surgeon, opined that appellant had attained maximum medical improvement regarding the 

December 29, 2006 crush injuries to the left hand accepted under File No. xxxxxx069. He 

diagnosed a crush injury to the distal phalanx of the left index finger with nail bed avulsion, 

multiple fractures and dislocations of the left middle finger, “multiple stellate lacerations totaling 

14 centimeters on hand, left thumb, index finger, middle finger and small finger.” On 

December 29, 2006 Dr. Foulkes performed surgical repairs of the soft tissue injuries and internal 

fixation of the middle finger fractures. Appellant underwent a second surgery on January 24, 

2007 to remove a fixation pin and screw from his left middle finger, and additional soft tissue 

debridement. 

 3

 Appellant also submitted an April 20, 2015 Occupational Health and Safety Administration (OSHA) incident 

report regarding right carpometacarpal joint arthritis. 
3

Dr. Foulkes performed a third surgery on September 1, 2009, removing additional 

fixation hardware from the left middle finger, and extensor tenolysis of the left middle finger. 

Referring to Table 15-12 of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment,

4

 he found seven percent permanent impairment of the left 

upper extremity due to amputation of the distal phalanx of the left index finger, and an additional 

eight percent permanent impairment due to motion deficits in the index and middle fingers. 

Dr. Foulkes totaled these impairments to equal 15 percent permanent impairment of the left 

upper extremity. 

In an April 16, 2015 report, Dr. Foulkes injected appellant’s right carpometacarpal joint 

to address right basilar joint arthritis. He noted that appellant underwent a “left trapezial 

excision arthroplasty and FCR [flexor carpi radialis] suspension plasty handled through [OWCP] 

on the base some years ago,” in addition to the December 29, 2006 employment-related crush 

injury. 

By decision dated July 7, 2015, OWCP denied the claim for left thumb arthritis, finding 

that the medical evidence was insufficient to establish causal relationship. It accepted that 

appellant worked with hand tools, pneumatic tools, and heavy equipment as alleged. However, 

OWCP found that appellant’s physicians had failed to adequately explain how and why those 

tasks, or other work factors, caused the claimed left thumb condition. 

In an appeal form signed on August 21, 2015, received by OWCP on August 27, 2015, 

appellant requested reconsideration. He did not submit additional evidence or argument in 

support of his request. 

By decision dated September 3, 2015, OWCP denied reconsideration, finding that 

appellant’s August 21, 2015 letter did not raise substantive legal questions or include new, 

relevant evidence sufficient to warrant a review of the merits. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant 

must: (1) show 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.6

 Section 10.608(b) provides that 

when an application for review of the merits of a claim does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.7

 

 4

 Table 15-12, page 421 of the sixth edition of the A.M.A., Guides is entitled “Impairment Values Calculated 

from Digit Impairment.” 

5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 
4

In support of a request for reconsideration, appellant is not required to submit all 

evidence which may be necessary to discharge her burden of proof.8

 She need only submit 

relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an OWCP 

decision denying a merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.10 

ANALYSIS 

Appellant requested reconsideration on August 27, 2015. He did not submit pertinent 

new and relevant evidence or offer a legal argument not previously considered by OWCP. 

OWCP denied reconsideration by September 3, 2015 decision, finding that appellant’s appeal 

form did not contain new, relevant evidence or argument. Moreover, appellant did not show that 

OWCP erroneously applied or interpreted a specific point of law. 

The Board finds that OWCP appropriately denied reconsideration as appellant’s appeal 

form was not relevant to the claim. The critical issue was the medical question of whether he 

sustained a left thumb condition in the performance of duty. The appeal form is not medical 

evidence, and is thus irrelevant to that issue. Therefore, it does not comprise a basis for 

reopening the case.11 

A claimant may be entitled to a merit review by showing that OWCP erroneously applied 

or interpreted a point of law, submitting pertinent new and relevant evidence, or advancing a 

legal argument not previously considered. Appellant did not do so in this case. Therefore, 

pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied reconsideration of the merits of his claim 

under section 8128(a) of FECA. 

 8 Helen E. Tschantz, 39 ECAB 1382 (1988). 

9 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

10 Annette Louise, 54 ECAB 783 (2003). 

11 Joseph A. Brown, Jr., 55 ECAB 542 (2004).
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 3, 2015 is affirmed. 

Issued: May 16, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board