United States Department of Labor

Employees’ Compensation Appeals Board

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P.W., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR

STATION, Kingsville, TX, Employer

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Docket No. 17-1911

Issued: June 6, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 11, 2017 appellant filed a timely appeal from a May 3, 2017 nonmerit 

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

elapsed from the last merit decision dated January 23, 2017, 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 the claim.

ISSUE

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

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

FACTUAL HISTORY

On May 14, 1987 appellant, then a 49-year-old safety and occupational disease manager,

filed an occupational disease claim (Form CA-2) alleging that, on February 13, 1987, he first 

 

1 5 U.S.C. § 8101 et seq.
2

became aware that he had cervical and lumbar degenerative disease caused by repeated trauma

while in the performance of his federal employment.

2

On May 27, 1987 appellant provided a chronological history of his neck and back injuries 

beginning on July 3, 1960 as active duty National Guard, and continuing through his work as a 

firefighter, as a safety management intern, in the Coast Guard Reserves, and during his Naval 

civilian employment.3

By decision dated September 14, 1987, OWCP accepted that appellant’s multiple workrelated injuries had permanently aggravated his cervical degenerative disc disease. On 

September 29, 1987 it informed him that it accepted that both his cervical and lumbar degenerative 

disc disease had been permanently aggravated by his work-related injuries.

Appellant subsequently filed a traumatic injury claim (Form CA-1) alleging that, on 

August 28, 1990, he stepped into a grass covered hole and wrenched his low back causing injury 

to his sciatic nerve and left leg. He explained that he was returning to his office from Hanger 43 

when the injury occurred.4 On March 5, 2001 OWCP accepted the claim for lumbar sprain and 

noted that it was combining appellant’s claim files. 

On March 12, 2012 appellant filed a schedule award claim (Form CA-7).

By decision dated August 1, 2012, OWCP granted appellant schedule awards for 10 

percent permanent impairment of his left upper extremity, and 6 percent permanent impairment of 

his left lower extremity. By decision dated February 21, 2014, it found that he had an additional 

4 percent permanent impairment of his left upper extremity, totaling 14 percent permanent 

impairment, an additional 9 percent permanent impairment of his left lower extremity, totaling 15 

percent permanent impairment, and 6 percent permanent impairment of his right lower extremity 

for which he received schedule awards.

On August 23, 2014 appellant filed a claim for an additional schedule award (Form CA7). In a September 16, 2014 letter, OWCP requested additional medical evidence establishing 

greater permanent impairment than that which was previously awarded. By decision dated 

February 3, 2015, it denied appellant’s claim for an additional schedule award, finding that he 

failed to submit sufficient medical evidence establishing increased permanent impairment.

 

2 This claim was assigned OWCP File No. xxxxxx214. 

3 The record contains evidence pertaining to several of appellant’s other claims, which have not been combined 

with this case record. On August 18, 1981 appellant filed a traumatic injury claim (Form CA-1) alleging that on 

August 17, 1981 he injured his lower back unloading boxes. He filed a second traumatic injury claim on January 15, 

1985 alleging injury to his lower back and right knee on January 8, 1985 after he stepped into an animal’s den while 

crossing a grassy area. On March 24, 1986 appellant, filed a traumatic injury claim (Form CA-1) alleging that he hit 

his head on a steel overhead door jamb while ascending narrow stairs and injured his head and neck. This claim was 

accepted for cervical strain.

4 That claim was assigned OWCP File No. xxxxxx916. OWCP File Nos. xxxxxx214 and xxxxxx916 have been 

administratively combined, with File No. xxxxxx214 serving as the master file. 
3

Appellant requested reconsideration of the February 3, 2015 decision on 

February 24, 2015. On March 13, 2015 OWCP referred appellant for a second opinion evaluation 

scheduled for April 15, 2015. On March 27, 2015 appellant notified OWCP that he was 

undergoing surgery on April 3, 2015 and cancelled the second opinion evaluation. By decision 

dated March 30, 2015, OWCP informed appellant that, as he had undergone additional surgery, 

his claim for a schedule award was premature because he had not reached maximum medical 

improvement following his surgery.

On June 24, 2015 appellant again requested reconsideration and requested that OWCP 

reschedule a second opinion evaluation to determine his permanent impairment for schedule award 

purposes. OWCP scheduled a second opinion evaluation with Dr. Joseph McGowin, a Boardcertified orthopedic surgeon, for August 26, 2015. 

In his September 10, 2015 report, Dr. McGowin reviewed the medical records and 

performed a physical examination. He diagnosed chronic exacerbation of cervical and lumbar 

degenerative disc disease, chronic left C5 and C6 radiculopathy and chronic bilateral L5 and S1 

radiculopathy. Dr. McGowin opined that appellant had nine percent permanent impairment of the 

left upper extremity and six percent permanent impairment of the left lower extremity in 

accordance with the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).5

OWCP’s medical adviser reviewed this report on September 18, 2015 and found that 

appellant had no more than 10 percent permanent impairment of the left upper extremity and 6 

percent permanent impairment of the left lower extremity. He found no permanent impairment in 

the right upper or lower extremities.

By decision dated November 24, 2015, OWCP found that appellant was not entitled to an 

additional schedule award. 

In a letter received by OWCP on November 18, 2016, appellant requested reconsideration 

of the November 24, 2015 decision. He alleged a worsening of his injury-related condition. In 

support of his claim, appellant submitted April 7, 2016 cervical and lumbar spine magnetic 

resonance imaging (MRI) scans. Appellant’s physician, Dr. Steven D. Grijalva, an orthopedic 

surgeon, completed an undated report and opined that appellant had progressive degeneration of 

his lumbar spine and that he exhibited severe deconditioning of his lower extremities due to his 

lumbar pain. He concluded that appellant had not reached maximum medical improvement and 

required further treatment.

By decision dated January 23, 2017, OWCP reviewed the merits of appellant’s claim and 

found that he had not established additional permanent impairment of a scheduled member or 

function of the body, greater than that which was previously awarded.

On April 17, 2017 appellant requested reconsideration of the January 23, 2017 merit 

decision. He provided a letter dated April 10, 2017 in which he alleged that the January 23, 2017 

 

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

decision was confusing and that his accepted conditions continued to worsen. Appellant asserted 

that impairment ratings were not necessary for OWCP to address his claim.

By decision dated May 3, 2017, OWCP denied appellant’s request for reconsideration of 

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

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.6 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.7 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.8 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.

9

OWCP procedures provide that if a claimant is seeking an increased schedule award due 

to increased impairment or additional exposure, but is not contesting a prior schedule award, this 

submission should not be treated as a reconsideration request, but developed as a claim for an 

additional schedule award.

10

ANALYSIS

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

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

 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608.

9

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

(February 2016).

10 Even if the term reconsideration is used, when a claimant is not attempting to show error in the prior schedule 

award decision and submits medical evidence regarding an increased permanent impairment at a date subsequent to 

the prior schedule award decision, this submission should be considered a claim for an additional schedule award and 

not subject to the one-year time limitation for reconsideration. G.E., Docket No. 17-0594 (issued September 14, 

2017); B.K., 59 ECAB 228 (2007); Paul R. Reedy, 45 ECAB 488 (1994); Federal (FECA) Procedure Manual, Part 2 

-- Claims, Reconsiderations, Chapter 2.1602.3(b) (February 2016). This medical evidence should establish maximum 

medical improvement, describe the impairment in detail, and provide a percentage of impairment. Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5b 

(March 2017).
5

OWCP issued a January 23, 2017 merit decision denying appellant’s claim for an 

additional schedule award as there was no medical evidence establishing that appellant had reached 

maximum medical improvement, that described his permanent impairment in detail, and that 

provided a percentage of his permanent impairment in accordance with its procedures.11 Appellant 

timely requested reconsideration of the January 23, 2017 decision on April 17, 2017. With his 

submission, appellant alleged that OWCP had improperly denied his prior request for an increased 

schedule award. While appellant asserted that his condition had worsened, he did not submit any 

evidence with respect to increased permanent impairment or additional exposures, and therefore, 

OWCP properly reviewed his submission as a request for reconsideration rather than a request for 

an additional schedule award.

12

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.13

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

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

OWCP’s decision was confusing, and provided his understanding of the evidence required to 

establish his schedule award claim.

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

deficiencies of OWCP’s decision or his interpretation of the law, the Board finds that these 

arguments do not have a reasonable color of validity.15 Appellant’s argument is therefore 

insufficient to require OWCP to reopen his schedule award claim for consideration of the merits.

Appellant also did not provide any medical evidence in support of his contention that his 

condition continued to worsen such that he had increased permanent impairment of his left upper 

extremity or bilateral lower extremities. As he failed to provide relevant and pertinent new 

evidence not previously considered by OWCP, OWCP properly denied his request for 

reconsideration of the merits of his increased schedule award claim.

 

11 Id. at Chapter 2.808.5b (March 2017).

12 See F.K., Docket No. 17-0308 (issued December 21, 2017). 

13 Supra note 7.

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

15 F.K., Docket No. 17-0308 (issued December 21, 2017).
6

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 6, 2018

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