United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Murfreesboro, TN, Employer 

__________________________________________ 

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Docket No. 14-407 

Issued: May 2, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 12, 2013 appellant filed a timely appeal from a July 17, 2013 nonmerit 

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

reconsideration. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by OWCP. 

The last merit decision of record was OWCP’s May 20, 2013 decision. Because more than 180 

days elapsed from the last merit decision to the filing of this appeal, the Board lacks jurisdiction 

to review the merits of this case.2

 1

 5 U.S.C. § 8101 et seq.

2

 For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of 

OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R. 

§ 501.3(e). 
2

ISSUE 

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

pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On March 4, 1998 appellant, then a 51-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on March 3, 1998 he sustained a right shoulder injury after he 

was knocked to the floor by a patient. OWCP accepted his claim for right rotator cuff tear, right 

shoulder strain and right rotator cuff repair. 

By decision dated August 1, 2002, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the right arm.3

 

On March 6, 2013 appellant filed a claim for an additional schedule award (Form CA-7) 

under this claim, No. xxxxxx624. He submitted a December 5, 2012 functional capacity 

evaluation (FCE) from CORA Rehabilitation Clinic. 

OWCP routed the December 5, 2012 evaluation and case file to a district medical adviser 

(DMA) for review and a determination on whether appellant sustained greater permanent 

impairment and the date of maximum medical improvement. 

In reports dated April 18 and May 10, 2013, Dr. H.P. Hogshead, a medical adviser, used 

the findings from the FCE to rate seven percent impairment of the right arm. Because appellant 

had previously received an award for 17 percent impairment of the right arm, he was not entitled 

to an additional schedule award. The date of maximum medical improvement was noted as 

December 5, 2012. 

By decision dated May 20, 2013, OWCP denied appellant’s schedule award claim, 

finding that he did not establish greater impairment of the right arm. It noted that he had 

previously been rated at 17 percent right arm impairment and the medical adviser found 7 

percent right arm impairment. 

By letter dated June 27, 2013, appellant requested reconsideration of the schedule award 

determination stating that his right shoulder condition had worsened. He submitted billing 

statements from CORA Rehabilitation Clinic dated November 26, 2012 to March 15, 2013. 

 

 3

 The Board notes that appellant had a prior work-related right arm injury for which he was awarded five percent 

permanent impairment of the right arm on June 22, 1983, claim No. xxxxxx103. The August 1, 2002 decision noted 

that appellant sustained 17 percent permanent impairment of the right arm and deducted the 5 percent already 

received for a total 12 percent permanent impairment of the right arm. 
3

By decision dated July 17, 2013, OWCP denied appellant’s request for reconsideration 

finding that he did not raise any substantive legal questions or submit new and relevant 

evidence.4

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under FECA section 8128(a), 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.5 Section 10.608(b) of OWCP regulations provide 

that 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.6

ANALYSIS 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

The issue presented is whether appellant met any of the requirements of 20 C.F.R. 

§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his 

June 27, 2013 application for reconsideration, appellant did not contend that OWCP erroneously 

applied or interpreted a specific point of law. He did not advance a new and relevant legal 

argument. Appellant stated that his right shoulder injury had worsened. The underlying issue in 

this case is whether he established additional impairment of the right arm. That is a medical 

issue which must be addressed by relevant medical evidence.7 The only evidence received were 

billing statements from CORA Rehabilitation Clinic. This evidence is irrelevant to the issue as it 

does not address permanent impairment. A claimant may obtain a merit review of an OWCP 

decision by submitting new and relevant evidence. In this case, appellant failed to submit any 

new and relevant medical evidence addressing whether to establish greater impairment to his 

right arm. 

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

§ 10.606(b)(2). He did not show that OWCP erroneously applied or interpreted a specific point 

 4

 The Board notes that appellant submitted additional evidence after OWCP rendered its July 17, 2013 decision. 

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

Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy, 

47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to 

OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§ 10.606(b)(2). 

5 D.K., 59 ECAB 141 (2007). 

6 K.H., 59 ECAB 495 (2008). 

7 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
4

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

relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review.8

CONCLUSION 

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

review of the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the July 17, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 2, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 Sherry A. Hunt, 49 ECAB 467 (1998).