United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.Y., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-1344 

Issued: March 10, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 1, 2015 appellant filed a timely appeal from a March 10, 2015 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed 

from the issuance of OWCP’s last merit decision on February 25, 2014, to the filing of this 

appeal, the Board lacks jurisdiction over the merits of the case, pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

of her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 27, 2010 appellant, then a 58-year-old human resources manager, filed an 

occupational disease claim (Form CA-2) alleging that her bilateral carpal tunnel syndrome was a 

 1

 5 U.S.C. § 8101 et seq.
2

result of the repetitive duties she performed in her federal employment. OWCP accepted her 

claim for bilateral carpal tunnel syndrome, left rotator cuff sprain, and other affections of the left 

shoulder region not elsewhere classified. It also accepted an acquired trigger finger on the right. 

OWCP granted a schedule award for three percent permanent impairment of each upper 

extremity due to bilateral carpal tunnel syndrome. 

In 2013 appellant filed a claim for an additional schedule award. Dr. Stephen D. Webber, 

a Board-certified orthopedic surgeon, reported seven percent permanent impairment of her left 

upper extremity based on a full-thickness tear of the rotator cuff. An OWCP medical adviser 

concurred with the rating. 

On February 25, 2014 OWCP issued a schedule award for an additional four percent 

permanent impairment of the left upper extremity due to a full-thickness tear of the rotator cuff. 

This represented the seven percent impairment rating given by Dr. Webber, less the three percent 

award appellant previously received for her carpal tunnel syndrome. 

On January 27, 2015 OWCP received a reconsideration request from appellant. 

Appellant noted that Dr. Webber’s seven percent impairment rating related only to her shoulder 

and did not include her carpal tunnel condition. She argued that her total left upper extremity 

impairment should be 10 percent. 

To support her request, appellant submitted an October 1, 2014 report from Dr. Webber. 

Dr. Webber confirmed that his seven percent rating was for the shoulder and did not take into 

account any other impairment of the left upper extremity. “The patient states she has also been 

diagnosed with carpal tunnel and if the carpal tunnel were added, it would increase the 

percentage of impairment.” 

In a decision dated March 10, 2015, OWCP denied appellant’s reconsideration request. It 

found that the evidence was insufficient to warrant a review of the February 25, 2014 schedule 

award decision. Specifically, OWCP found that appellant failed to provide the information 

needed to consider her carpal tunnel condition. 

On appeal, appellant argues that OWCP should reopen her case and send the evidence to 

an OWCP medical adviser to determine the percentage of her left upper extremity impairment. 

LEGAL PRECEDENT 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or upon application.2

 An employee (or representative) seeking reconsideration 

should send the request for reconsideration to the address as instructed by OWCP in the final 

decision. The request for reconsideration, including all supporting documents, must be in 

writing and must set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

 2

 5 U.S.C. § 8128(a). 
3

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.3

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP decision for which review is sought.4

 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or argument that meets at 

least one of these standards. If reconsideration is granted, the case is reopened and the case is 

reviewed on its merits. Where the request is timely but fails to meet at least one of these 

standards, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.5

ANALYSIS 

OWCP received appellant’s reconsideration request within one calendar year of its 

February 25, 2014 schedule award decision. Appellant’s request is therefore timely. The 

question that remains is whether her request met at least one of the three standards for obtaining 

a merit review of her case. 

Appellant’s request advanced a relevant legal argument not previously considered by 

OWCP, namely, that OWCP should have combined the diagnosis-based impairment of her left 

upper extremity due to a full-thickness rotator cuff tear with the peripheral nerve impairment of 

her left upper extremity due to carpal tunnel syndrome. According to the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), peripheral nerve 

impairment, such as from carpal tunnel syndrome, may be combined with diagnosis-based 

impairment, such as from a rotator cuff tear, at the upper extremity level, so long as the 

diagnosis-based impairment does not encompass the nerve impairment.6

 It was appellant’s 

argument that her total left upper extremity impairment should therefore be 10 percent, not 4 

percent. 

Appellant thus advanced a legal argument that was relevant to OWCP’s March 10, 2015 

schedule award decision and which OWCP did not previously consider. Instead of combining 

the seven percent rating for a full-thickness rotator cuff tear with the three percent rating for 

carpal tunnel syndrome, OWCP subtracted the carpal tunnel rating from the rotator cuff rating as 

though the two were duplicative. 

Appellant also submitted relevant and pertinent new evidence not previously considered 

by OWCP, namely, the October 1, 2014 report of Dr. Webber, the attending orthopedic surgeon. 

Dr. Webber made clear that his seven percent rating for appellant’s shoulder did not take into 

account any other impairment of the left upper extremity. And if carpal tunnel syndrome were 

added, he advised, it would increase the percentage of impairment. As noted before, OWCP 

 3

 20 C.F.R. § 10.606(b)(3). 

4 Id. § 10.607(a). 

5 Id. § 10.608. 

6

 A.M.A., Guides 419. 
4

decreased Dr. Webber’s rating because of appellant’s three percent award for carpal tunnel 

syndrome. 

The Board finds that appellant’s reconsideration request met at least one of the standards 

for obtaining a merit review of her case. Accordingly, appellant is entitled to a merit review. 

The Board will, therefore, set aside OWCP’s March 10, 2015 decision and remand the case for a 

de novo decision on appellant’s claim for an additional schedule award. 

CONCLUSION 

The Board finds that OWCP did not properly deny appellant’s request for further merit 

review of her case. Appellant’s reconsideration request met at least one of the standards for 

obtaining a merit review. 

ORDER 

IT IS HEREBY ORDERED THAT the March 10, 2015 decision of the Office of 

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

Issued: March 10, 2016 

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