United States Department of Labor

Employees’ Compensation Appeals Board

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M.M., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

OFFICE OF MANAGEMENT & BUDGET, 

New York, NY, Employer

__________________________________________

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Docket No. 18-0292

Issued: July 9, 2018

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 November 27, 2017 appellant filed a timely appeal from an October 2, 2017 merit 

decision and a November 13, 2017 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 this case.

ISSUES

The issues are: (1) whether appellant established permanent impairment of a scheduled 

member or function of the body causally related to her accepted employment injuries, warranting 

a schedule award; and (2) whether OWCP properly denied appellant’s request for reconsideration 

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

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 14, 1990 appellant, then a 38-year-old typist, filed a traumatic injury claim (Form 

CA-1) alleging that, on May 11, 1990, she felt a pulling sensation in her neck after pulling a box 

of computer paper. She stopped work on May 11, 1990 and returned to modified-duty work for 

five hours per day on September 17, 1990. OWCP accepted the claim for cervical and lumbar 

sprains and thoracic or lumbar radiculitis or neuritis. By decision dated August 31, 1992, it issued 

a loss of wage-earning capacity determination, adjusting her compensation based on her 

employment as a typist working five hours per day. 

On June 16, 2017 appellant filed a claim for a schedule award (Form CA-7).

By development letter dated August 7, 2017, OWCP informed appellant that no medical 

evidence had been received in support of her schedule award claim. It requested that she submit 

a medical report from her treating physician which addressed whether she had reached maximum 

medical improvement (MMI) and whether her accepted conditions caused permanent impairment 

pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides).2 Appellant was afforded 30 days to provide the 

requested evidence. 

In response to OWCP’s request, appellant submitted a July 31, 2017 report from Dr. Igor 

Stiler, a treating Board-certified neurologist. Dr. Stiler provided lumbar and cervical range of 

motion findings and upper extremity sensory findings. Physical examination findings noted 5/5 

muscle testing for both upper extremities, and that deep tendon reflexes were 1-2/4. Dr. Stiler 

opined that appellant was 75 percent disabled.

By decision dated October 2, 2017, OWCP denied appellant’s schedule award claim. It 

determined that the medical evidence of record was insufficient to establish permanent impairment 

of a scheduled member or function of the body as required under 5 U.S.C. § 8107. 

On November 7, 2017 appellant requested reconsideration and submitted an October 31, 

2017 report from Dr. Stiler. Dr. Stiler related appellant’s examination findings which were 

unchanged from his prior report. He reviewed cervical and lumbar magnetic resonance imaging 

scans (MRI) and found L4-5 anterolesthesis, L4-5 and L5-S1bulging disc, C4-5 moderate cervical 

spondylosis. Dr. Stiler also reviewed electromyography (EMG) test dated October 17, 2017, 

which showed acute right L5-S1 radiculopathy, chronic C5-6 radiculopathy, carpal tunnel 

syndrome, and bilateral upper extremity sensory neuropathy. He concluded that appellant had 

reached MMI and was 75 percent disabled.

By decision dated November 13, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of her schedule award claim. It determined that the evidence 

submitted was repetitive and substantially similar to evidence previously submitted. 

 

2 A.M.A., Guides (6th ed. 2009).
3

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,3and its implementing federal regulations,

4

set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

Neither FECA, nor its implementing regulations provide for the payment of a schedule 

award for the permanent loss of use of the back/spine or the body as a whole.7 However, a schedule 

award is permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.8 The sixth edition of the A.M.A., Guides provides a specific methodology for rating 

spinal nerve extremity impairment.9 It was designed for situations where a particular jurisdiction, 

such as FECA, mandated ratings for extremities and precluded ratings for the spine. The FECAapproved methodology is premised on evidence of radiculopathy affecting the upper and/or lower 

extremities. The appropriate tables for rating spinal nerve extremity impairment are incorporated 

into OWCP’s procedures.10

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award. As 

previously noted, no schedule award is payable for permanent loss of use of the back, spine, or 

body as a whole, but, appellant may receive a schedule award for permanent impairment to the 

upper or lower extremities even though the cause of impairment originated in the spine.11

 

3 5 U.S.C. § 8107.

4 20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6 Federal (FECA) Procedure Manual, Part 2 -- Claims , Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

7 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.C., Docket No. 17-1617 (issued January 8, 2018); Jay K. 

Tomokiyo, 51 ECAB 361, 367 (2000).

8 Supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a(3) 

(March 2017).

9 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009).

10 See supra note 6 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

11 J.S., Docket No. 13-2129 (issued June 6, 2014).
4

In support of her claim appellant submitted a July 31, 2017 report from Dr. Stiler who 

noted examination findings. Dr. Stiler found appellant was 75 percent disabled. Appellant’sreport 

is of limited probative value as Dr. Stiler did not address permanent impairment pursuant to the 

A.M.A., Guides or The Guides Newsletter. The Board has held that schedule awards are to be 

based on the A.M.A., Guides. An estimate of permanent impairment is irrelevant and not probative 

where it is not based on the A.M.A., Guides.

12

 

As appellant has not submitted medical evidence in conformance with the A.M.A., Guides,

supporting permanent impairment of a scheduled member or function of the body, causally related 

to the accepted condition, she has failed to meet her burden of proof.

Appellant may request a schedule award or increased schedule award at any time based on 

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

condition resulting in 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.13 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.14 Section 10.608 of 

OWCP’s regulations provides that when a request for reconsideration is timely, but does not 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.15 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.16

ANALYSIS -- ISSUE 2

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). 

In her November 7, 2017 request for reconsideration appellant did not make any argument 

that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal 

argument not previously considered by OWCP. Thus, appellant was not entitled to a review of the 

 

12 C.B., Docket No. 15-503 (issued June 12, 2015); Shalanya Ellison, 56 ECAB 150, 154 (2004).

13 Supra note 1.

14 20 C.F.R. § 10.606(b)(3).

15 Id. at § 10.608.

16 Id. at § 10.607(a). Supra note 6 at Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
5

merits of her claim based on the first and second above-noted requirements under section 

10.606(b)(3).17

However, appellant did submit a new medical report, dated October 31, 2017 from

Dr. Stiler. While the report from Dr. Stiler is new, he merely reiterated his prior opinion from his

earlier report. Appellant did not submit any new medical evidence containing a permanent 

impairment evaluation.18 The report of Dr. Stiler is not relevant and pertinent new evidence related 

to the issue of whether appellant was entitled to a schedule award. The Board has held that 

evidence which repeats or duplicates evidence already of record does not constitute a basis for 

reopening a case.19 Consequently, the evidence submitted by appellant on reconsideration does 

not satisfy the third criterion, noted above, for reopening a claim for merit review. 

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

20 C.F.R. § 10.606(b)(3) and thus OWCP properly denied merit review.20

CONCLUSION

The Board finds that appellant has not established permanent impairment of a scheduled 

member or function of the body, causally related to her accepted employment injuries, warranting 

a schedule award. The Board further finds that OWCP properly denied appellant’s request for 

reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).

 

17 See J.B., Docket No. 17-0628 (issued June 28, 2017).

18 G.T., Docket No. 18-0158 (issued May 11, 2018). 

19 E.N., Docket No. 16-1000 (issued September 20, 2016); D.K., 59 ECAB 141 (2007).

20 See B.R., Docket No. 17-1213 (issued January 18, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’

Compensation Programs dated November 13 and October 2, 2017 are affirmed.

Issued: July 9, 2018

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