United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

___________________________________________

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1884 

Issued: January 20, 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 25, 2014 appellant, through counsel, filed a timely appeal from the August 19, 

2014 Office of Workers’ Compensation Programs (OWCP) nonmerit decision. As the last merit 

decision was issued on February 20, 2014 more than 180 days from the filing of this appeal, the 

Board does not have jurisdiction over the merits. Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the nonmerit decision. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 3, 2011 appellant, then a 45-year-old city letter carrier, filed a traumatic 

injury claim alleging that on that date he slipped on a patch of black ice and cracked his left 

elbow while in the performance of duty. He did not initially stop work. On March 31, 2011 

OWCP accepted the claim for radial head fracture, left, and triangular fibrocartilage complex 

(TFCC) tear left. On October 23, 2011 it expanded the claim to include left wrist sprain and 

sprain of the left shoulder and rotator cuff. On February 6, 2012 appellant underwent authorized 

arthroscopy with rotator cuff repair to the left shoulder. OWCP also accepted a June 2, 2012 

claim for a recurrence of disability. 

In a June 30, 2013 report, Dr. David Weiss, an osteopath, noted appellant’s history of 

injury and treatment. He examined appellant and provided findings. Dr. Weiss utilized the 

American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 

2009) (hereinafter, A.M.A., Guides). He determined that appellant would qualify for seven 

percent impairment due to a class 1 full thickness left rotator cuff tear with residual loss, four 

percent impairment due to a radial head fracture to the left elbow, and 10 percent impairment due 

to a left wrist TFCC tear. Dr. Weiss determined that appellant had 19 percent impairment to the 

left arm. 

In a January 22, 2014 report, an OWCP medical adviser noted appellant’s history of 

injury and treatment. He noted that the accepted conditions were radial head fracture and TFCC 

tear on the left. The medical adviser specifically noted that the accepted conditions did not 

include rotator cuff or any shoulder injury. He indicated that Dr. Weiss’ recommendation for a 

schedule award for rotator cuff tear should not be accepted. The medical adviser determined that 

appellant sustained 14 percent impairment to the left arm. 

On February 20, 2014 OWCP granted appellant a schedule award for 14 percent 

impairment of the left upper extremity. The award covered a period of 43.68 weeks from June 2, 

2013 to April 2, 2014. 

In a letter dated May 21, 2014, appellant’s attorney requested reconsideration. He argued 

that the schedule award for 14 percent impairment was incorrect as the medical adviser did not 

have an accurate history of the claim since the medical adviser did not consider the impairment 

to the left shoulder, despite OWCP accepting left rotator cuff tear and authorizing surgery. 

In an August 19, 2014 decision, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant review of its prior decision. It 

noted that the medical adviser explained why appellant was not eligible for an award due to the 

rotator cuff tear. OWCP found that appellant’s attorney’s arguments did not warrant a merit 

review as no new medical evidence was submitted. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,2

 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal 

 2

 5 U.S.C. § 8128(a). 
3

regulations, which provide that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”3

 Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.4

ANALYSIS 

Appellant’s attorney disagreed with the amount of the February 20, 2014 left arm 

schedule award and requested reconsideration on May 21, 2014. He asserted that OWCP erred 

in not considering impairment to appellant’s left shoulder region in issuing its schedule award 

decision. 

OWCP denied appellant’s application on August 19, 2014, finding that no new evidence 

was offered warranting further merit review. Appellant’s attorney argued that the award for 14 

percent impairment was incorrect, as the medical adviser did not consider the impairment to the 

left shoulder, despite OWCP accepting the left rotator cuff condition and authorizing surgery to 

repair the injured rotator cuff. OWCP denied merit review on the basis that no relevant new 

medical evidence was submitted. However, as noted above, a claimant who advances a relevant 

legal argument not previously considered by OWCP is entitled to a merit review of the claim. In 

the August 19, 2014 decision, OWCP indicated that the argument regarding the rotator cuff tear 

was not sufficient to warrant a merit review as no new medical evidence was submitted. 

However, the Board finds that appellant’s attorney has, in fact, raised a relevant new legal 

argument regarding the accepted conditions. The Board notes that the medical adviser did not 

appear to be aware that the rotator cuff tear and surgery were accepted by OWCP. In fact, he 

specifically noted that the accepted conditions did not include rotator cuff or any shoulder 

injury.5

 As this is not the case, appellant’s attorney presented a valid new and relevant legal 

 3

 20 C.F.R. § 10.606(b). 

4 Id. at § 10.608(b). 

5

 OWCP procedures provide that impairment ratings for schedule awards include those conditions accepted by 

OWCP as job related, and any preexisting permanent impairment of the same member or function. Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(d) 

(February 2013). 
4

argument. It is well established that the conditions accepted by OWCP should be identified so 

the physician can properly assess the issue presented.6

The Board, therefore, finds appellant has advanced a relevant legal argument that OWCP 

failed to correctly consider the relevant medical conditions. Pursuant to 20 C.F.R. 

§ 10.606(b)(2), appellant is entitled to a merit review of the claim. The case will be remanded 

for a decision by OWCP on the merits of the claim. In light of the Board’s finding, it is 

premature to address additional arguments on appeal. 

CONCLUSION 

The Board finds appellant is entitled to a merit review of the claim 

ORDER 

IT IS HEREBY ORDERED THAT the August 19, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further action consistent with 

this decision. 

Issued: January 20, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 6 See, e.g., Gwendolyn Merriweather, 50 ECAB 411, 415 (1999).