United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Douglas, GA, Employer 

__________________________________________ 

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Docket No. 14-1947 

Issued: February 11, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 8, 2014 appellant timely appealed the August 28, 2014 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP) which denied reconsideration. The 

latest merit decision regarding appellant’s claim for a schedule award is dated March 1, 2013, 

which is more than 180 days prior to the filing of the instant 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 case. 

ISSUE 

The issue is whether OWCP properly declined to reopen appellant’s case for merit review 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

FACTUAL HISTORY 

This case was previously before the Board.2 Appellant, a 59-year-old former city carrier, 

has an accepted claim for bilateral carpal tunnel syndrome, which arose on or about 

April 22, 1992.3 When the case was last before the Board, OWCP granted an October 27, 2011 

schedule award for four percent impairment of each upper extremity, for a total of eight percent. 

The Board set aside the October 27, 2011 award because of deficiencies in the district medical 

adviser’s (DMA) September 15, 2011 impairment rating. The case was remanded to OWCP for 

further development. The Board’s August 10, 2012 decision is incorporated herein by reference. 

On August 30, 2012 the DMA reviewed appellant’s file and calculated two percent 

bilateral upper extremity impairment under Table 15-23, A.M.A., Guides 449 (6th ed. 2008). 

On December 12, 2012 OWCP granted a schedule award for two percent impairment of 

each upper extremity, for a total of four percent. It further advised that because appellant had 

already received payment for a total of eight percent impairment of the upper extremities, an 

overpayment existed, which would be addressed in a separate decision. 

On December 19, 2012 appellant requested reconsideration. He did not submit any 

additional evidence at the time, but instead requested authorization for further evaluation.4

 

On January 17, 2013 OWCP instructed appellant to arrange for the submission of an 

impairment rating under the A.M.A., Guides (6th ed. 2008).5 It further advised that his physician 

could submit his fee for the evaluation using the appropriate form (HCFA-1500). Appellant was 

afforded 30 days to submit additional evidence; however, no evidence was received within the 

allotted time. 

By decision dated March 1, 2013, OWCP denied modification of the December 12, 2012 

schedule award. 

Appellant subsequently advised OWCP that the physician he selected to provide an 

impairment rating was unfamiliar with the sixth edition of the A.M.A., Guides (2008). He also 

did not know of anyone who could provide an impairment rating under the sixth edition of the 

A.M.A., Guides. 

On April 10, 2013 OWCP advised appellant that it would schedule him for a second 

opinion evaluation and impairment rating under the A.M.A., Guides (6th ed. 2008). It later 

 2

 Docket No. 12-653 (issued August 10, 2012). 

3

 Appellant underwent bilateral carpal tunnel releases in 1992 and retired from federal service in October 2001. 

His retirement was due to unrelated cervical and lumbar conditions. Appellant later accepted part-time employment 

at a hardware store. 

4

 OWCP ultimately approved appellant’s request for an evaluation by a Dr. Kenneth DePersio. 

5

 OWCP also provided copies of the DMA’s September 15, 2011 and August 30, 2012 reports. 
3

advised appellant that he would first have to file a new schedule award claim (Form CA-7) 

before referral for a second opinion. 

On April 17, 2013 OWCP made a preliminary finding of overpayment in the amount of 

$4,433.20. The amount represented the difference between the October 27, 2011 and 

December 12, 2012 schedule awards. OWCP determined that appellant was without fault in the 

creation of overpayment. 

Appellant requested a prerecoupment hearing, which was held on October 22, 2013. He 

also submitted an overpayment recovery questionnaire, along with banking records and tax 

returns. 

By decision dated January 24, 2014, the hearing representative affirmed the fact and 

amount of the overpayment. She also found that appellant was without fault in creating the 

overpayment. Based on appellant’s reported income and expenses, the hearing representative 

found that recovery of the overpayment would defeat the purpose of FECA. Accordingly, she 

granted waiver of recovery of the $4,433.20 overpayment. 

On July 14, 2014 appellant requested that OWCP award an additional six percent based 

on the June 10, 2014 rating from Dr. Richard M. Blecha, a Board-certified orthopedic surgeon, 

who found five percent impairment of each upper extremity under Table 15-23, A.M.A., Guides

449 (6th ed. 2008). 

In a decision dated August 1, 2014, OWCP found that appellant’s July 14, 2014 request 

was untimely and that he failed to present clear evidence of error. The senior claims examiner 

noted that appellant “sent in a letter requesting an additional schedule award but did not provide 

any evidence the 2013 decision was issued in error....” 

On August 5, 2014 appellant filed a claim (Form CA-7) for an additional schedule award. 

In an August 6, 2014 letter, he stated that he was not asking for reconsideration, but additional 

compensation based on Dr. Blecha’s June 10, 2014 impairment rating under the A.M.A., Guides

(6th ed. 2008). 

In an August 11, 2014 letter, OWCP advised appellant that it would not process his 

recent claim (CA-7) for an additional schedule award in light of the August 1, 2014 decision. It 

further advised that the next course of action would be to follow the appeal rights issued with the 

August 1, 2014 decision. 

By decision dated August 28, 2014, OWCP found that appellant’s request for 

reconsideration, which was received on August 11, 2014, was untimely. It also found that 

appellant’s August 6, 2014 letter failed to provide evidence to support that the March 1, 2013 

decision was erroneous. 
4

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.6

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7

 One such limitation is that the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.8

 When a request for reconsideration is untimely, OWCP will undertake a 

limited review to determine whether the application presents clear evidence of error on the part 

of OWCP in its most recent merit decision.9

A claim for an additional schedule award is not time-dependent like a request for 

reconsideration of a prior award. If a claimant sustains increased impairment at a later date 

which is due to work-related factors, an additional award will be payable if supported by the 

medical evidence.10 In this case, the original award is undisturbed and the new award has its 

own date of maximum medical improvement (MMI), percent of impairment, and period of 

award.11 This may occur if the claimant sustains additional impairment due to the original work 

factors with no intervening or additional exposure to those same work factors.12

 6

 This section provides in pertinent part: “[t]he 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). 

7

 20 C.F.R. § 10.607 (2014). 

8 Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation 

System (iFECS). Id. at Chapter 2.1602.4b. 

9

 20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the 

issue that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, 

precise, and explicit and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 

ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary 

conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision 

is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence 

submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear 

procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of 

the claimant and raise a substantial question as to the correctness of OWCP’s decision. Thankamma Mathews, 44 

ECAB 765, 770 (1993). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.9b (February 2013). 

11 Id.

12 Id.
5

ANALYSIS 

On August 5, 2014 appellant filed a claim (Form CA-7) for an additional schedule award. 

OWCP previously granted an award for two percent impairment of each upper extremity, for a 

total of four percent. The December 12, 2012 schedule award was based on the DMA’s 

August 30, 2012 finding of two percent bilateral upper extremity impairment under Table 15-23, 

A.M.A., Guides 449 (6th ed. 2008). The August 5, 2014 claim for an additional schedule award 

is premised on Dr. Blecha’s June 10, 2014 finding of five percent impairment of each upper 

extremity based on Table 15-23, A.M.A., Guides 449 (6th ed. 2008). 

In an August 6, 2014 letter, appellant stated that he was not asking for reconsideration, 

but instead was seeking additional compensation based on Dr. Blecha’s June 10, 2014 rating. 

After numerous failed attempts, appellant had finally secured a current rating under the A.M.A., 

Guides (6th ed. 2008). Contrary to appellant’s request in his August 6, 2014 letter, OWCP 

evaluated appellant’s latest filing as a request for reconsideration of the March 1, 2013 decision 

which denied modification of the December 12, 2012 schedule award. In so doing, OWCP 

determined that appellant’s August 6, 2014 correspondence was untimely, and that he failed to 

present clear evidence of error with respect to the March 1, 2013 decision. The August 28, 2014 

decision failed to mention Dr. Blecha’s June 10, 2014 impairment rating. Additionally, OWCP 

did not refer Dr. Blecha’s findings to the DMA for review. 

The Board finds that OWCP erred in treating appellant’s August 6, 2014 correspondence 

as a request for reconsideration. Appellant had already filed a new CA-7 on August 5, 2014 and 

clearly indicated that he was seeking additional compensation based on Dr. Blecha’s June 10, 

2014 impairment rating. OWCP failed to consider the latest CA-7, as well as Dr. Blecha’s 

rating, which ostensibly supports an additional award. Consequently, the August 28, 2014 

nonmerit decision shall be set aside, and the case remanded for further development. 

On remand, OWCP should refer the case file, including Dr. Blecha’s June 10, 2014 

report, to the DMA for review.13 After it has developed the case record consistent with the 

Board’s directive, a de novo decision shall be issued regarding appellant’s August 5, 2014 claim 

for an additional schedule award. 

CONCLUSION 

The case is not in posture for decision. 

 13 Id. at Chapter 2.808.6e and f. 
6

ORDER 

IT IS HEREBY ORDERED THAT the August 28, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case remanded for further consideration 

consistent with this decision.14

Issued: February 11, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 14 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.