United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

El Paso, TX, Employer 

__________________________________________ 

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Docket No. 16-1371 

Issued: February 3, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 22, 2016 appellant filed a timely appeal of a March 22, 2016 nonmerit decision 

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

from the last merit decision, dated March 19, 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 to review the merits of this case. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 10, 1999 appellant, then a 54-year-old customs technician, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained a low back injury pushing and 

pulling while retrieving documents from the storage room. OWCP accepted the claim for 

lumbar sprain on October 4, 1999. Appellant underwent a lumbar magnetic resonance imaging 

(MRI) scan on October 18, 1999 which demonstrated L5-S1 grade 1, with anterolisthesis of L5 

on S1, and a mild-to-moderate annular disc bulge. She underwent an open reduction, 

decompression laminectomy, and interbody fusion at L5-S1 on March 3, 2000. Appellant 

returned to light-duty work on August 28, 2000. OWCP accepted the additional conditions of 

aggravation of spondylosis at L5-S1 and right foot Morton’s neuroma as a result of an altered 

gait due to her back problems. 

On October 28, 2000 OWCP reduced appellant’s wage-loss compensation based on her 

actual earnings as a modified customs technician. 

Appellant filed a claim for a schedule award on February 25, 2002 and submitted medical 

evidence. Her attending physician, Dr. George W. Wharton, a Board-certified orthopedic 

surgeon, opined on February 19, 2002 that she had 20 percent permanent impairment of her 

spine. 

In a decision dated August 27, 2003, OWCP denied appellant’s claim for a schedule 

award, finding that she failed to establish permanent impairment to a scheduled member. 

Appellant underwent electromyogram (EMG) and nerve conduction velocity (NCV) 

study on October 25, 2004 which demonstrated right-sided L5 radiculopathy. An additional 

lumbar MRI scan on November 17, 2004 demonstrated second degree spondylolisthesis at L5-S1 

with minimal disc desiccation at L5-S1 and L4-5. 

On July 22, 2005 appellant underwent surgical removal of retained hardware, exploration 

of fusion, and grafting and treatment of screw holes. She underwent an additional lumbar MRI 

scan on March 3, 2008 which demonstrated a mild disc bulge at L4-5. Appellant retired from the 

employing establishment in October 2005. Dr. Wharton provided her work restrictions on 

March 20, 2008. On July 9, 2008 appellant elected to receive FECA benefits effective that date. 

OWCP proposed to terminate appellant’s wage-loss compensation benefits in a letter 

dated March 28, 2011, allotting her 30 days to submit additional evidence relative to 

employment-related disability. Appellant did not respond within that time. 

On May 31, 2011 OWCP terminated appellant’s wage-loss compensation benefits, 

effective June 4, 2011. Appellant requested reconsideration. In a decision dated September 19, 

2011, it denied modification of the May 31, 2011 termination decision. 

Appellant underwent an additional lumbar spine MRI scan on May 25, 2011 which 

demonstrated grade 1 to 2 anterolisthesis at L4-5, bilateral laminectomies at L5 with stable grade 

1 to 2 anterolisthesis. She underwent repeat NCV testing on July 5, 2011 and November 15, 

2016, which demonstrated progression of L4-5 bilateral lumbar radiculopathy and chronic right 

L5 radiculopathy resulting in mild active motor denervation. 
3

Dr. Charles N. Brooks, a Board-certified orthopedic surgeon, examined appellant on 

April 6, 2011. He found that her lumbar radiculopathy had resulted in partial use of her right 

lower extremity. Dr. Brooks indicated that appellant experienced severe back pain and right 

lower extremity pain and numbness. He applied provisions of the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides) and 

found that appellant had functional history grade modifier of 3 due pain with less than normal 

activity, physical examination grade modifier of 1 due to one centimeter of atrophy, and clinical 

studies grade modifier of 2 based on nerve root radiculopathy on EMG. On July 6, 2011 

Dr. Brooks applied the appropriate A.M.A., Guides provisions and diagnosed degenerative disc 

disease and disc bulges of the lumbar spine, as well as spondylolisthesis of L5-S1 and right L5 

radiculopathy. He found that appellant had moderate sensory and motor deficits of the L5 nerve 

root. Dr. Brooks applied the A.M.A., Guides and determined that she had 16 percent permanent 

impairment of the right lower extremity. On July 26, 2011 OWCP’s medical adviser reviewed 

Dr. Brooks’ report and agreed with his impairment rating. 

On August 11, 2011 OWCP granted appellant a schedule award for 16 percent permanent 

impairment of her right lower extremity. 

Appellant filed a recurrence claim (Form CA-2a) on October 12, 2011. An OWCP 

medical adviser recommended authorizing additional back surgery on December 12, 2011. 

OWCP accepted the additional conditions of displacement of lumbar intervertebral disc, lesion 

of the right plantar nerve, and acceleration of degenerative disease at L4-5 on 

December 16, 2011. 

OWCP entered appellant on the periodic rolls on December 28, 2011. On February 1, 

2012 appellant underwent an L4-5 anterolateral interbody fusion. 

Appellant underwent an additional lumbar MRI scan on September 6, 2012 which 

demonstrated post-fusion changes at L4-5 and L5-S1 with no evidence of nerve root 

impingement. 

In a report dated April 6, 2013, Dr. Aleksandar Curcin, completed a second opinion 

report on behalf of OWCP and found that appellant’s low back pain had resolved, but that she 

continued to experience ongoing numbness and dysesthesias in the right lower extremity from 

the posterior thigh down to the foot and in the left lower extremity in the big toe. He reported 

normal lower extremity muscle strength testing and intact sensory examination. Dr. Curcin 

noted that appellant’s accepted conditions were ongoing and that she continued to experience 

residual pain in the bilateral lower extremities. He found that she had reached maximum medical 

improvement. Dr. Curcin opined that appellant was partially disabled from her date-of-injury 

position and provided work restrictions. 

OWCP referred appellant for vocational rehabilitation services on June 3, 2013. On 

February 26, 2014 it proposed to reduce her wage-loss compensation benefits finding that the 

vocational rehabilitation counselor and the weight of the medical evidence established that she 

could perform the position of secretary. 

 2

 A.M.A., Guides, 6th ed. (2009). 
4

By decision dated March 31, 2014, OWCP reduced appellant’s wage-loss compensation 

based on her capacity to earn wages as a secretary. 

Appellant underwent an EMG on May 23, 2014 which demonstrated right peroneal 

neuropathy with abnormalities in the right tibialis anterior and peroneus longus. On August 27, 

2014 she filed a claim for compensation (Form CA-7) requested a schedule award. Through a 

letter dated September 8, 2014, OWCP requested that appellant provide medical evidence in 

accordance with the A.M.A., Guides. 

Dr. Eric S. Smith, a physician Board-certified in occupational medicine and appellant’s 

attending physician, completed a report on September 30, 2014 addressing appellant’s permanent 

impairment. He reviewed her diagnostic studies and Dr. Brooks’ July 6, 2011 impairment rating, 

applied the A.M.A., Guides, and found that she had 17 percent permanent impairment of her 

right lower extremity due to increased functional history grade modifier as she used a cane on a 

regular basis. 

OWCP’s medical adviser reviewed the medical evidence on December 15, 2014 and 

found disagreement between Dr. Smith and Dr. Curcin regarding appellant’s findings on 

examination and the extent of her permanent impairment for schedule award purposes. 

OWCP referred appellant for a second opinion evaluation with Dr. William Dinenberg, a 

Board-certified orthopedic surgeon, on February 3, 2015. In a February 18, 2015 report, 

Dr. Dinenberg noted that she had two centimeters of calf atrophy and decreased sensation on the 

posteromedial aspect of the right calf. He noted loss of muscle strength in dorsi and plantar 

flexion of the right ankle. Dr. Dinenberg based appellant’s impairment rating on L5 

radiculopathy. He found that she had mild motor and sensory loss. Dr. Dinenberg found that 

appellant had functional history grade modifier of 2, clinical studies grade modifier of 0, and that 

the default grade C was used for both the sensory and motor deficits. He found that she had a 

total of six percent permanent impairment of her right lower extremity due to sensory and motor 

deficits in the L5 distribution on the right. 

OWCP’s medical adviser reviewed Dr. Dinenberg’s report on March 10, 2015 and agreed 

with his assessment of appellant’s permanent impairment for schedule award purposes. 

In a decision dated March 19, 2015, OWCP denied appellant’s claim for an additional 

schedule award finding that the weight of the medical evidence established that she had no more 

than 16 percent permanent impairment of her right leg for which she had received a schedule 

award. 

Appellant requested reconsideration of the March 19, 2015 decision on March 9, 2016. 

She resubmitted Dr. Smith’s September 30, 2014 report. On April 3, 2015 Dr. Smith reviewed 

Dr. Dinenberg’s report and disagreed with those findings and conclusions. He opined that 

appellant had a higher motor strength deficit with objective findings of atrophy. Dr. Smith 

concluded, “I stand by my previous rating.” 

Dr. Smith completed a report dated May 28, 2015 and reviewed new electrodiagnostic 

studies dated April 28, 2015, which he found were unchanged. On July 20, 2015 he continued to 

diagnose clinical right L5 radiculopathy with decrease sensation in the right L5 distribution and 
5

calf atrophy, weakness of ankle dorsiflexion. Dr. Smith opined that appellant continued to be 

disabled. Appellant underwent an additional MRI scan on September 8, 2015 which 

demonstrated no change from her 2012 study. On September 14, 2015 Dr. Smith diagnosed 

severe chronic low back pain with right radiculopathy and recommended a spinal cord 

stimulator. He completed a note on November 13, 2015 and found severe chronic low back pain 

with leg atrophy. In a note dated January 8, 2016, Dr. Smith diagnosed chronic severe low back 

pain with residuals following spine surgeries as well as meniscal tear in the right knee. He 

examined appellant on February 18, 2016 regarding her request for reconsideration and opined 

that she was totally disabled. On March 4, 2016 Dr. Smith found that she had significant low 

back pain with radicular symptomatology and atrophy of her lower extremities. 

Dr. Barry Landau, a Board-certified neurosurgeon, examined appellant on November 4, 

2015 due to gradually increasing right leg pain. He found that her motor strength was normal in 

all upper and lower extremity muscle groups with intact sensation. Dr. Landau also reported that 

appellant’s gait pattern was normal. He noted that her September 8, 2015 MRI scan showed no 

change from 2012. Dr. Landau diagnosed residual right leg pain and recommended pool 

exercise therapy or a dorsal column spinal cord stimulator. 

By decision dated March 22, 2016, OWCP denied appellant’s request for reconsideration 

of the merits finding that she failed to submit new evidence or argument in support of her claim 

for an additional schedule award. It found that the additional reports from Drs. Smith and 

Landau were cumulative, repetitive, and substantially similar to evidence previously considered. 

LEGAL PRECEDENT 

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.3 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.4

 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.5

 3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608. 

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

(February 2016). 
6

ANALYSIS 

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

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

OWCP issued a merit decision on March 19, 2015 denying appellant’s claim for an 

additional schedule award finding that the weight of the medical evidence established that she 

had no more than 16 percent permanent impairment of her right lower extremity for which she 

had received a schedule award. It based its decision on medical evidence, including review of 

Dr. Smith’s September 30, 2014 report finding that she had 17 percent permanent impairment of 

her right lower extremity. 

In support of her request for reconsideration, appellant resubmitted Dr. Smith’s 

September 30, 2014 report as well as a note dated April 3, 2015 in which he opined that he 

continued to support the September 30, 2014 impairment rating. These notes do not constitute 

relevant and pertinent new evidence as OWCP had previously considered the September 30, 

2014 report prior to reaching the March 19, 2015 schedule award determination.6 Appellant also 

submitted a series of treatment notes from Dr. Smith dated May 28, 2015 through March 4, 2016. 

These notes did not specifically address her impairment for schedule award purposes, instead 

focusing on her total disability for work.7

 Therefore, these notes are not relevant and pertinent 

new evidence addressing the issue for which appellant’s claim was denied and are insufficient to 

require OWCP to reopen her claim for consideration of the merits of an increased schedule 

award. Appellant also submitted a report dated November 4, 2015 from Dr. Landau addressing 

her condition. Dr. Landau noted that her September 8, 2015 MRI scan showed no change from 

2012. This report, however, did not address the central issue of whether appellant had more than 

16 percent permanent impairment of her right leg for which she had received a schedule award. 

Dr. Landau did not address her permanent impairment and indicated that there was no change in 

her injury-related condition which could result in an additional schedule award.8 

Appellant did not comply with the requirements of section 10.606(b)(3) and her request 

for reconsideration was not sufficient to require OWCP to reopen her claim for reconsideration 

of the merits. 

CONCLUSION 

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

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

 6

 The Board has held that the submission of evidence or argument which repeats or duplicates evidence or 

argument already in the case record does not constitute a basis for reopening a case. See M.H., Docket No. 16-1382 

(issued December 5, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984). 

7 See D.G., Docket No. 16-1009 (issued October 24, 1986); Edward Matthew Diekemper, 31 ECAB 224-

25 (1979). 

8

 Appellant may request a schedule award based on evidence of a new exposure or medical evidence showing a 

progression of an employment-related condition resulting in permanent impairment or increased impairment. 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 3, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board