United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.T., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

MACDILL AIR FORCE COMMISSARY, 

MacDill, FL, Employer 

__________________________________________ 

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Docket No. 15-0637 

Issued: July 1, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 27, 2015 appellant filed a timely appeal from a September 8, 2014 nonmerit 

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

days has elapsed between the last merit decision dated September 3, 2013 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 appellant’s claim.2 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant has submitted new evidence with his appeal to the Board. However, the Board

may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. 

§§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 

389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

On appeal appellant argues that he is entitled to an additional schedule award based on 

the severity of his accepted consequential left shoulder. 

FACTUAL HISTORY 

This case has previously been before the Board. On June 26, 1986 appellant, then a 

54-year-old meat cutter, filed a traumatic injury claim alleging that on that date he injured his 

right shoulder when he slipped and fell while pulling pork. OWCP accepted the claim for 

chronic impingement syndrome and right rotator cuff tear. 

By decision dated May 4, 2000, the Board affirmed OWCP decisions dated October 27, 

1997, February 10 and April 9, 1998 regarding the reduction of appellant’s wage-loss 

compensation to zero effective April 3, 1997 due to his failure, without good cause, to participate 

in vocational rehabilitation.3

 

By decision dated November 2, 2004, OWCP expanded the acceptance of appellant’s 

claim to include a consequential left rotator cuff tear. 

By decision dated November 16, 2004, OWCP granted appellant a schedule award for 27 

percent permanent impairment of his left arm. 

On February 19, 2008 and July 7, 2013 appellant filed claims for additional schedule 

awards. 

By letter dated July 17, 2013, OWCP informed appellant that he had previously been 

granted a schedule award for 27 percent permanent impairment of his left arm. It advised him as 

to the medical evidence required to establish entitlement to an additional schedule award for his 

left upper extremity. 

In a letter dated July 29, 2013, OWCP requested Dr. Fanourios Ferderigos, appellant’s 

treating Board-certified orthopedic surgeon, to provide an impairment rating. It advised 

Dr. Ferderigos that any impairment rating must be made using the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). No 

response was received from Dr. Ferderigos. 

By decision dated September 3, 2013, OWCP denied appellant’s request for an additional 

schedule award. 

In response to OWCP’s request for an impairment rating, it received an October 14, 2013 

report from Dr. Robert C. Henderson, a treating Board-certified orthopedic surgeon. 

Dr. Henderson noted appellant’s primary problems as full thickness rotator cuff tear, knee 

osteoarthritis, localized primary osteoarthritis, localized pelvic region and thigh primary 

osteoarthritis, and shoulder region bursa disorder. Physical examination findings were provided 

and using Table 15-5, page 403 of the A.M.A., Guides found 13 percent impairment based on 

left full thickness rotator cuff tear. Next, using Table 475, page 534, he found 11 percent 

 3

 Docket No. 98-1992 (issued May 4, 2000). 
3

impairment for left shoulder range of motion restrictions. Dr. Henderson combined the 

impairment ratings which resulted in 24 percent left shoulder impairment rating. He noted that 

as appellant had previously been found to have 27 percent impairment, that no additional rating 

was due. 

In a letter dated August 27, 2014, appellant requested reconsideration. He argued that he 

was entitled to an additional schedule award for his left upper extremity as he no longer has any 

use of his left shoulder. Appellant also requested assistance in finding a doctor to provide an 

updated impairment rating. 

By decision dated September 8, 2014, OWCP denied reconsideration. It noted that 

appellant appeared to be requesting reconsideration as he needs a new treating physician as his 

physician retired. OWCP had not provided a new legal argument or submitted probative new 

evidence showing entitlement to an additional schedule award that his request was insufficient to 

warrant a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP’s regulations provide that 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 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.7 

ANALYSIS 

On November 16, 2004 OWCP issued a decision granting appellant a schedule award for 

27 percent impairment of his left arm. By decision dated September 3, 2013, it denied his 

request for an additional schedule award for his left arm. Appellant requested reconsideration of 

this decision on August 27, 2014, which OWCP denied in a nonmerit decision dated 

September 8, 2014. 

 4 Supra note 1. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application. 

5

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

6

 20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 

657 (2006).

7

 20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
4

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

In his application for reconsideration, appellant did not show that OWCP erroneously applied or 

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

Appellant requested assistance in finding a doctor to provide an updated impairment rating as he 

believed he was entitled to an additional schedule award. 

A claimant may be entitled to a merit review by submitting pertinent new and relevant 

evidence, but appellant did not submit any evidence in support of his request.8

 Thus, his opinion 

is not relevant to the issue of whether he is entitled to an additional schedule award.9

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

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

constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

On appeal appellant argues that he is entitled to an additional schedule based on the 

severity and limited use of his left shoulder. As noted above, he failed to meet any of the 

requirements for a merit review. 

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). 

 8

 The Board has noted supra that appellant submitted new evidence subsequent to the time OWCP issued its final 

decision. Such new evidence cannot be considered on appeal. OWCP did receive an October 14, 2013 report from 

Dr. Henderson subsequent to the September 3, 2013 OWCP decision denying his request for an additional schedule 

award. While this report is new, it is not relevant as Dr. Henderson determined that appellant had a 24 percent left 

upper extremity impairment using the sixth edition of the A.M.A., Guides. As this was less than the previously 

determined 27 percent left upper extremity impairment, Dr. Henderson opined no additional impairment rating was 

warranted. 

9 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 8, 2014 is affirmed. 

Issued: July 1, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board