United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.O., Appellant 

and 

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION, 

Greenbelt, MD, Employer 

__________________________________________ 

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Docket No. 15-0852 

Issued: September 28, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 10, 2015 appellant filed a timely appeal of an October 20, 2014 merit decision 

and a February 2, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.2

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish permanent 

impairment warranting a schedule award; and (2) whether OWCP properly denied appellant’s 

request for reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.

2

 Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its 

discretion pursuant to 20 C.F.R. § 501.5(a) the Board, by an October 8, 2015 order, denied appellant’s request 

because it could adequately address appellant’s contentions based on a review of the case record. Order Denying 

Request for Oral Argument, Docket No. 15-0852 (issued July 23, 2015). 
2

FACTUAL HISTORY 

On February 25, 2014 appellant, then a 52-year-old special agent, filed a claim for 

traumatic injury (Form CA-1) alleging pain in his right shoulder and biceps area on February 20, 

2014 while carrying a weighted rifle case, ammunition, and numerous accessories during 

firearms training. 

Appellant underwent a magnetic resonance imaging (MRI) scan of his right shoulder on 

March 20, 2014 which demonstrated partial thickness tears of the distal infraspinatus tendon, a 

nondisplaced superior labrum anterior to posterior (SLAP) tear and evidence of subacromial 

impingement and bursitis. On May 12, 2014 Dr. Sunjay Berdia, a Board-certified orthopedic 

surgeon, opined that appellant had injured his right shoulder after a full day of firearms training 

in February 2014. He noted that the MRI scan showed a high grade partial tear of the 

infraspinatus tendon as well as a SLAP tear with a cyst for which surgical repair was 

recommended. Dr. Berdia opined that appellant’s injuries were caused as a direct result of his 

work duties in February. 

OWCP accepted appellant’s claim on June 16, 2014 for sprain of the shoulder and upper 

arm on the right, superior glenoid labrum lesion, and sprain of the right rotator cuff. 

On July 22, 2014 Dr. Berdia performed an authorized arthroscopic SLAP repair, 

subacromial decompression, mini-open rotator cuff repair and extensive debridement of the right 

shoulder. 

Appellant filed a claim for a schedule award (Form CA-7) on September 4, 2014. In a 

letter dated September 9, 2014, OWCP requested additional medical evidence in support of this 

claim. It noted that there was no narrative report describing appellant’s condition and whether or 

not he had permanent impairment as a result of his accepted injuries. OWCP allowed 30 days 

for a response. 

Appellant submitted notes from Dr. Berdia dated March 10, May 8, and September 19, 

2014 noting the history of injury and recommending physical therapy. He also submitted notes 

from Valerie L. Silver, a physical therapist. 

By decision dated October 20, 2014, OWCP denied appellant’s claim for a schedule 

award finding that the medical evidence of record had failed to establish a permanent impairment 

to a scheduled member. 

In a form dated October 29, 2014 and received by OWCP on November 4, 2014, 

appellant requested reconsideration of the October 20, 2014 decision. On October 27, 2014 

Dr. Berdia opined that appellant had not reached maximum medical improvement. Appellant 

continued to submit physical therapy notes from Ms. Silver and resubmitted Dr. Berdia’s 

March 10 and 24 and May 8, 2014 notes. 

Dr. Berdia completed a report on November 24, 2014 and opined that appellant had 

reached maximum medical improvement. He reported that appellant had nearly full range of 

motion, lacking 10 degrees of abduction, forward flexion and internal rotation. Dr. Berdia found 

that appellant had good rotator cuff strength. 
3

By decision dated February 2, 2015, OWCP declined to reopen appellant’s claim for 

consideration of the merits as appellant had failed to submit relevant new evidence. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA3

 and its implementing regulations4 set forth the 

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

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

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized the use of a single set of tables so 

that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

5

 

Maximum improvement means that the physical condition of the injured member of the 

body has stabilized and will not improve further. The determination of maximum medical 

improvement is not to be based on surmise or prediction of what may happen in the future. A 

schedule award is appropriate where the physical condition of an injured member has stabilized, 

despite the possibility of an eventual change in the degree of functional impairment in the 

member.6 The question of when maximum medical improvement has been reached is a factual 

one which depends on the medical findings in the record and the determination of such date is 

made in each case upon the basis of submitted medical evidence.7 

ANALYSIS -- ISSUE 1 

The Board finds that appellant failed to meet his burden of proof to establish permanent 

impairment due to the accepted shoulder injury. 

Appellant requested a schedule award on September 4, 2014. At the time he requested 

his schedule award, there was no medical evidence of record addressing whether appellant had 

reached maximum medical improvement or whether he had any permanent impairment of his 

right shoulder following surgery. Dr. Berdia’s notes from March 10 through September 19, 2014 

did not discuss appellant’s accepted right shoulder condition and did not address whether 

appellant had reached maximum medical improvement. As noted above, a schedule award is 

only appropriate where the physical condition of an injured member has stabilized and this is 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5

 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); and, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010). 

6 James Kennedy, Jr., 40 ECAB 620, 626 (1989). 

7 Eugenia L. Smith, 41 ECAB 409, 413 (1990). 
4

known as maximum medical improvement.8

 Maximum medical improvement is a factual one 

based on the medical findings in the record.9

 As there was no medical evidence of record 

discussing maximum medical improvement, appellant failed to meet his burden of proof to 

establish permanent impairment warranting a schedule award. 

Appellant also submitted notes from Ms. Silver, a physical therapist. As she is not a 

physician, Ms. Silver’s notes do not constitute competent medical evidence and cannot meet 

appellant’s burden of proof to establish his claim for permanent impairment.10

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

LEGAL PRECEDENT -- ISSUE 2 

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.11 

Section 10.606(b)(3) of Title 20 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.12 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.13 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.14 

ANALYSIS -- ISSUE 2 

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

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

 8 Supra note 6. 

9 Supra note 7. 

10 R.S., Docket No. 15-0988 (issued August 12, 2015); F.D., Docket No. 15-0868 (issued August 10, 2015). 

11 5 U.S.C. §§ 8101-8193, 8128(a). 

12 20 C.F.R. § 10.606(b)(3). 

13 Id. at § 10.608. 

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

(October 2011). 
5

Appellant submitted a timely request for reconsideration of OWCP’s October 29, 2014 

decision. In support of his request for reconsideration, appellant submitted a series of reports 

from Dr. Berdia including a note dated October 27, 2014 finding that he had not reached 

maximum medical improvement. These notes are not relevant to the underlying issue of 

permanent impairment as Dr. Berdia opined that appellant had not reached maximum medical 

improvement, a necessary medical standard prior to the determination of permanent impairment 

for schedule award purposes. The Board finds that these notes do not constitute relevant and 

pertinent new evidence requiring OWCP to reopen appellant’s claim for consideration of the 

merits. 

Appellant also submitted a report dated November 24, 2014 from Dr. Berdia. He 

provided an opinion that appellant had reached maximum medical improvement following his 

surgery and listed appellant’s shoulder range of motion and strength deficits. As the underlying 

issue in OWCP’s October 29, 2014 decision was whether appellant had established permanent 

impairment of a scheduled member, the Board finds that this report which does not include a 

rating of permanent impairment under the A.M.A., Guides, is not relevant and pertinent new 

evidence requiring OWCP to reopen appellant’s claim for consideration of the merits. 

In support of his request for reconsideration, appellant also submitted notes from 

Ms. Silver, a physical therapist. Physical therapists are not considered physicians under FECA.15 

As these notes were not signed by a physician the notes have no probative value in establishing 

appellant’s claim16 for permanent impairment, and do not constitute relevant and pertinent new 

evidence requiring OWCP to reopen appellant’s claim for consideration of the merits. 

Appellant also resubmitted Dr. Berdia’s March 10, 24 and May 8, 2014 notes. These 

notes were previously considered by OWCP in reaching the October 29, 2014 decision. As this 

evidence is repetitious, it cannot be considered new evidence and does not require OWCP to 

reopen appellant’s claim for consideration of the merits.17 

The Board finds that appellant’s request for reconsideration did not include supporting 

evidence or argument in compliance with section 10.606(b)(3) and was not sufficient to require 

OWCP to reopen appellant’s claim for review of the merits. 

CONCLUSION 

The Board finds that appellant failed to meet his burden of proof to establish permanent 

impairment at the time of OWCP’s October 20, 2014 merit decision. The Board further finds 

that OWCP properly denied merit review of appellant’s November 4, 2014 request for 

reconsideration. 

 15 5 U.S.C. § 8101(2); Thomas R. Horsefall, 48 ECAB 180 (1996).

16 Merton J. Sills, 39 ECAB 572 (1988). 

17 Eugene F. Butler, 36 ECAB 393, 398 (1984). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 2, 2015 and October 20, 2014 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: September 28, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board