United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Miami, FL, Employer 

__________________________________________ 

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Docket No. 15-0524 

Issued: August 3, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 5, 2015 appellant, through counsel, filed a timely appeal from a 

November 26, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Because more than 180 days elapsed since the most recent merit decision dated 

February 22, 2013 and the filing of this appeal on January 5, 2015, 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 appellant’s case. 

ISSUE 

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

was untimely filed and did not establish clear evidence of error. 

On appeal, counsel contends that OWCP improperly refused to adjudicate appellant’s 

schedule award claim. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 15, 2014 appellant, then a 39-year-old special agent, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained injuries on February 14, 2011 as a result of bench 

pressing in the performance of duty. OWCP accepted the claim for pectoralis tear and right 

shoulder infraspinatus tear. It authorized right shoulder pectoral tendon repair surgery, which 

appellant underwent on March 3, 2011. 

On October 30, 2012 appellant, through counsel, filed a claim for a schedule award. 

On January 14, 2013 an OWCP medical adviser reviewed the record and found that 

appellant had reached maximum medical improvement on December 3, 2012 but that he had no 

ratable impairment of the right upper extremity. 

In a January 15, 2013 letter, OWCP notified appellant of the deficiencies of his schedule 

award claim and afforded him 30 days to submit additional evidence. 

Appellant submitted a report dated February 1, 2013 from Dr. George Caldwell, Jr., a 

Board-certified orthopedic surgeon, who reiterated that appellant had received a zero impairment 

rating and indicated that he used the Florida Impairment Rating, not the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), to determine 

impairment ratings. 

By decision dated February 22, 2013, OWCP denied appellant’s schedule award claim as 

the medical evidence failed to establish a ratable impairment of a scheduled member. 

On November 11, 2014 appellant, through counsel, requested reconsideration. Counsel 

submitted reports dated September 16 and October 27, 2014 from Dr. Robin Simon, a Boardcertified orthopedic surgeon, who diagnosed right shoulder infraspinatus tendon tear and right 

shoulder impingement syndrome. Dr. Simon opined that appellant had reached maximum 

medical improvement and had six percent permanent impairment of the right upper extremity 

under Table 15-34, page 475, of the sixth edition of the A.M.A., Guides. 

By decision dated November 26, 2014, OWCP denied appellant’s request for 

reconsideration on the basis that it was untimely filed and failed to present clear evidence of 

error. 

LEGAL PRECEDENT 

The schedule award provision of FECA2

 and its implementing regulations3 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use, of scheduled members or functions of the body. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results 

 2 Id. at § 8107. 

3

 20 C.F.R. § 10.404. 
3

and to ensure equal justice under the law to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants.4 The A.M.A., Guides have been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.5

 

In schedule award cases, a distinction is made between an application for an additional 

schedule award and a request for reconsideration of an existing schedule award. When a 

claimant is asserting that an original award was erroneous based on his or her medical condition 

at that time, this is a request for reconsideration. However, even if the term reconsideration is 

used, when a claimant is not attempting to show error in the prior schedule award decision and 

submits medical evidence regarding a permanent impairment at a date subsequent to the prior 

schedule award decision, it should be considered a claim for an additional schedule award. A 

claim for an additional schedule award may be based on new exposure to employment factors or 

on the progression of an employment-related condition, without new exposure, resulting in 

greater permanent impairment. OWCP should issue a merit decision on the schedule award 

claim, rather than adjudicate an application for reconsideration.6

 

ANALYSIS 

The Board finds that this case is not in posture for decision. 

On November 11, 2014 appellant requested reconsideration of OWCP’s February 22, 

2013 schedule award decision. He submitted new evidence relating to his medical diagnosis and 

schedule award claim. In reports dated September 16 and October 27, 2014, Dr. Simon 

diagnosed right shoulder infraspinatus tendon tear and right shoulder impingement syndrome and 

opined that appellant had six percent permanent impairment of the right upper extremity under 

Table 15-34, page 475, of the sixth edition of the A.M.A., Guides. 

In its November 26, 2014 decision, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to present clear evidence of error. Its procedures 

state that, if a claimant is seeking an increased schedule award due to increased impairment 

and/or additional exposure, but not contesting the decision or prior award, this should not be 

treated as a reconsideration request and OWCP should develop the issue of entitlement to an 

additional award.7

 

 4 See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006). 

5 Supra note 3; see F.D., Docket No. 09-1346 (issued July 19, 2010). 

6 See B.K., 59 ECAB 228, 229-30 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards 

and Permanent Disability Claims, Chapter 2.808.9.b (February 2013). See also Candace A. Karkoff, 56 ECAB 622, 

625 (2005); Linda T. Brown, 51 ECAB 115, 115-16 (1999); Paul R. Reedy, 45 ECAB 488, 490 (1994); Leonard E. 

Redway, 28 ECAB 242, 246-47 (1977) (where it was evident that the claimant was seeking a schedule award based 

on new and current medical evidence, OWCP should have issued a merit decision on the schedule award claim 

rather than adjudicate an application for reconsideration). 

7 See A.C., Docket No. 13-1810 (issued January 6, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.3(b) (October 2011). 
4

In the present case, appellant submitted two new medical reports dated September 16 and 

October 27, 2014 from Dr. Simon, after OWCP’s February 22, 2013 schedule award decision. 

These reports addressed the pertinent issue of this case, i.e., whether he was entitled to schedule 

award compensation for right upper extremity impairment, as it contained an impairment rating 

that referenced the A.M.A., Guides. It is evident from the record that he was not seeking 

reconsideration of the February 22, 2013 OWCP decision, but was seeking a schedule award 

based on new medical evidence. The Board has held that, even if the term reconsideration is 

used, when a claimant is not attempting to show error in the prior schedule award decision and 

submits medical evidence regarding a permanent impairment at a date subsequent to the prior 

schedule award decision, it should be considered a claim for an increased schedule award and 

OWCP should issue a merit decision on the schedule award claim, rather than adjudicate an 

application for reconsideration.8

 

The Board finds that OWCP improperly adjudicated appellant’s request for an additional 

schedule award as a request for reconsideration under the clear evidence of error standard. The 

case will be remanded for further development on the issue of whether appellant has a permanent 

impairment of his right upper extremity entitling him to a schedule award. After this 

development is carried out, OWCP shall issue a de novo decision on appellant’s claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

 8 See supra note 6. See also R.L., Docket No. 09-1948 (issued June 29, 2010). 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 26, 2014 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: August 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board