United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.K., Appellant

and

DEPARTMENT OF THE ARMY, SAVANNA 

ARMY DEPOT, Savanna, IL, Employer

__________________________________________

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Docket No. 17-0308

Issued: December 21, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 23, 2016 appellant filed a timely appeal from an August 3, 2016 nonmerit 

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

elapsed from the last merit decision, dated November 9, 2015, 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 over the merits of this case.

ISSUE

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

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

FACTUAL HISTORY

On June 17, 1997 appellant, then a 52-year-old purchasing agent, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained injury to her legs, arms, and back when her desk 

 

1

5 U.S.C. § 8101 et seq.
2

leg fell off and the desk collapsed on her. On October 9, 1997 OWCP accepted her claim for 

lumbosacral strain. Appellant filed a claim for recurrence of disability (Form CA-2a) on 

December 17, 2002 alleging additional back pain. On January 28, 2004 OWCP accepted the 

additional condition of cervical radiculopathy as due to her June 17, 1997 work injury. By a 

July 15, 2008 decision, it also accepted thoracic strain and thoracic spasm. Appellant returned to 

light-duty work, but later retired on July 15, 2004.2 

On January 4, 2005 appellant underwent magnetic resonance imaging (MRI) scans of the 

cervical, thoracic, and lumbar spines which demonstrated mild spondylosis of the cervical spine 

involving multiple levels. Her thoracic MRI scan was normal, while her lumbar MRI scan 

showed spondylosis predominately at L4-5 with evidence of disc height loss and mild canal 

stenosis. Appellant underwent additional lumbar and thoracic MRI scans on January 4, 2008 

which were “essentially normal” and “unremarkable,” respectively. She had a cervical MRI scan 

on May 30, 2008 which showed mild-to-moderate spondylosis with no sites of neural 

impingement. 

Appellant underwent electrodiagnostic testing on February 10, 2009 including 

electromyogram and nerve conduction velocity studies which demonstrated normal 

electrodiagnostic study of the left upper limb. A lumbar MRI scan on April 1, 2009 

demonstrated degenerative changes with no evidence of disc herniation or central spinal stenosis 

as well as minimal broad-based posterior disc bulging at L4-5 with no significant nerve root 

impingement.

On April 23, 2009 Dr. Curtis Evenson, a physician Board-certified in pain medicine, 

reported appellant’s history of injury and noted her lower back pain with leg and thoracic pain. 

He diagnosed chronic lower pain with etiology difficult to access and possibly facet pain, as well 

as chronic pain with psychological overtones.

In a note dated May 21, 2010, Dr. Fred G. McQueary, a Board-certified orthopedic 

surgeon, described appellant’s history of injury and ongoing back pain. He noted that she

received epidural steroid injections in 2000 and 2001. Appellant described her condition as 80 

percent lumbar spine pain and 15 percent left leg pain with 5 percent right leg pain.

Dr. McQueary found that her lower extremity reflexes and muscle strength was normal. He 

reviewed x-rays which demonstrated lumbar degenerative disc disease. Dr. McQueary 

diagnosed multiple level degenerative changes in the spine with facet arthropathy. He 

recommended conservative treatment.

Appellant underwent MRI scans on September 27, 2011 which were read as 

demonstrating mild degenerative disc disease of the cervical, thoracic, and lumbar spines. 

Appellant filed a claim for a schedule award (Form CA-7) on October 28, 2014. In a 

letter dated November 12, 2014, OWCP informed her that additional information was necessary 

including a detailed medical report addressing her permanent impairment for schedule award 

purposes.

 

2 Appellant’s original employing establishment duty station closed on March 18, 2000. She transferred to U.S. 

Army Engineer District, Kansas City, Missouri, effective October 10, 1999.
3

On October 27, 2014 appellant underwent x-rays of her whole spine which demonstrated 

mild scoliotic deformity in the lumbar spine, multilevel spurring, and mild multilevel 

thoracolumbar spondylosis. Dr. Joel Travis Jeffries, a Board-certified orthopedic surgeon,

examined her on October 27, 2014 and noted her employment injury as well as her reports of 

neck, midback, and low back pain with left arm pain and left leg pain. He found diminished 

range of motion (ROM) in the cervical spine, mild bilateral grip strength weakness, make-break 

weakness of left elbow extension, but intact light touch sensation. Dr. Jeffries reported that 

appellant’s thoracolumbar spine had mild-to-moderate mid-thoracic and low lumbar tenderness 

with no paraspinous muscle spasm. Appellant had limited lumbar ROM. Dr. Jeffries found 

make-break weakness of the left lower extremity with intact sensation to light touch. He 

reported that the sitting root test was negative bilaterally.

In a note dated December 15, 2014, appellant’s physician, Dr. Mark W. Drymalski, a 

Board-certified physiatrist, noted appellant history of work injury in 1997 and described her 

ongoing back pain. He noted that her back pain radiated to her knee a few times a month and 

had gone down to her foot rarely. Dr. Drymalski found that appellant’s lower extremity strength 

was normal and that her reflexes were symmetrical.

In a letter dated January 15, 2015, OWCP informed appellant that her medical evidence 

did not address whether she had reached maximum medical improvement (MMI). On 

February 12, 2015 Dr. Drymalski determined that she had reached MMI. 

On June 9, 2015 OWCP referred appellant for a second opinion examination with

Dr. Michael S. Clarke, a Board-certified orthopedic surgeon. In a report dated June 29, 2015,

Dr. Clarke reviewed her history of injury and performed an examination. He found that 

appellant had no atrophy in her left lower extremity, with equal reflexes, and normal ROM. 

Dr. Clarke determined that she had degenerative changes in her spine that were commensurate 

with her age, body habitus, and work history. He diagnosed mild lumbar, dorsal, and cervical 

spondylosis, and no radiculopathy.

OWCP’s medical adviser reviewed Dr. Clarke’s report on September 23, 2015 and found 

that there was no evidence of permanent impairment to either appellant’s upper or lower 

extremities as a result of her accepted employment injury.3

By decision dated November 9, 2015, OWCP denied appellant’s claim for a schedule 

award finding that the medical evidence of record was insufficient to establish permanent

impairment of a scheduled member. 

Following the November 9, 2015 decision, appellant submitted additional medical 

evidence. In a note dated October 31, 2015, Dr. Jeffrey Kerr, an osteopath, examined her due to 

chronic pain in the back and neck radiating into her legs and arm. He diagnosed acute 

 

3 No schedule award is payable for a member, function, or organ of the body not specified in FECA or in the 

regulations. W.D., Docket No. 10-0274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976). 

Neither FECA nor the regulations provide for the payment of a schedule award for the permanent loss of use of 

whole person or the back or spine, as FECA itself specifically excludes the back from the definition of organ. 

5 U.S.C. § 8101(19). No claimant is entitled to a schedule award for the spine, but only to resulting impairments to 

the upper or lower extremities. Rozella L. Skinner, 37 ECAB 398 (1986).
4

exacerbation of chronic low back pain. On December 17, 2015 Dr. Jeffries found muscle spasms 

in appellant’s back and diagnosed acute exacerbation of chronic low back pain. 

Dr. Ossama Al-Assafeen, a Board-certified internist, examined appellant on February 3, 

2016 and diagnosed acute exacerbation of chronic low back pain with sciatica. 

Appellant had additional spine x-rays on April 22, 2016 which showed degenerative 

findings. Dr. Drymalski examined her on April 22, 2016 and noted that she reported worsening 

numbness in both feet, worse on the left. He found absent bilateral Achilles tendon reflexes. 

Dr. Drymalski diagnosed chronic neck and back pain from a work injury.

On May 25, 2016 Dr. Al-Assafeen again diagnosed acute exacerbation of chronic low 

back pain and noted that appellant’s increased back pain began when she bent to tie her shoe. 

Appellant requested reconsideration on July 8, 2016 and alleged that Dr. Clarke did not 

have time for a complete and intensive examination as he was planning to retire. She submitted 

a series of medical records from Cathy Gray, a family nurse practitioner, as well as multiple 

medical records addressing her various conditions from 1998 through 2015. Appellant submitted 

a duplicate copy of Dr. Al-Assafeen’s May 25, 2016 report. She also submitted September 26, 

2015 and June 1, 2016 chest x-rays.

By decision dated August 3, 2016, OWCP denied appellant’s request for reconsideration, 

finding that the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.4 

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain 

review of the merits of the claim by submitting in writing an application for reconsideration 

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.5 

Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is 

timely, but does meet at least one of these three requirements, OWCP will deny the application 

for review without reopening the case for a review on the merits.6 Section 10.607(a) of OWCP’s 

regulations provides that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.7

 

4

Supra note 1.

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608.

7

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 2.1602.4 

(February 2016).
5

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

OWCP issued a November 9, 2015 merit decision denying appellant’s claim for a 

schedule award. Appellant timely requested reconsideration on July 8, 2016. When the 

underlying compensation issue is a schedule award, an initial question is whether the claimant 

has submitted an application for reconsideration or has requested an increased schedule award. 

Even if appellant has requested reconsideration, if there is new and relevant evidence with 

respect to increased permanent impairment, then a claimant may be entitled to a merit decision 

on the issue,8but when a claimant does not submit any relevant evidence with respect to 

increased impairment, then OWCP may properly determine that he or she has filed a request for 

reconsideration of a schedule award decision.9 In this case, she did not submit any relevant 

evidence with respect to increased permanent impairment and; therefore, OWCP properly 

reviewed her submission as a request for reconsideration. 

As noted above, to require merit review, the request for reconsideration must set forth 

arguments or evidence that shows 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 new evidence not previously considered by OWCP.10

The Board finds that appellant has not submitted argument or evidence that OWCP 

erroneously applied or interpreted a specific point of law. Appellant instead generally argued 

that Dr. Clarke, the second opinion physician, failed to conduct a complete examination. While 

a reopening of a case may be predicated solely on a legal premise not previously considered, 

such reopening is not required where the legal contention does not have a reasonable color of 

validity.11 Because appellant did not provide any support for his allegation regarding the 

deficiencies of Dr. Clarke’s examination, the Board finds that these arguments do not have a 

reasonable color of validity.12 Appellant’s argument is therefore insufficient to require OWCP to 

reopen her schedule award claim for consideration of the merits. 

Appellant also provided additional medical evidence in support of her request for 

reconsideration. The Board finds that this evidence is irrelevant to the specific issue for which 

OWCP denied her claim and therefore insufficient to require OWCP to reopen her claim for 

consideration of the merits. The medical evidence submitted by appellant either predated her 

date of MMI as determined by her physician, addressed another part of her body, or was not 

 

8

See Linda T. Brown, 51 ECAB 115 (1999).

9

See J.M., Docket No. 15-1634 (issued September 16, 2016); W.J., Docket No. 12-1746 (issued 

February 5, 2013).

10 Supra note 5.

11 M.E., Docket No. 07-1189 (issued September 20, 2007).

12 See O.W., Docket No. 09-0427 (issued November 19, 2009); Jennifer A. Guillary, 57 ECAB 485 (2006). 
6

signed by a physician. Healthcare providers such as nurse practitioners and physical therapists 

are not considered physicians under FECA and their reports and opinions do not constitute 

competent medical evidence sufficient to establish a medical condition, disability, or causal 

relationship.13

As appellant did not submit relevant and pertinent new evidence or a relevant legal 

argument, OWCP properly declined to reopen her claim for review of the merits of her claim. 

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

ORDER

IT IS HEREBY ORDERED THAT that August 3, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 21, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. 

Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).