United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.W., Appellant 

and 

DEPARTMENT OF THE ARMY, U.S. ARMY 

GARRISON, Fort McPherson, GA, Employer 

__________________________________________ 

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Docket No. 17-0020 

Issued: June 23, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 6, 2016 appellant filed a timely appeal from a September 15, 2016 nonmerit 

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

elapsed from the last merit decision dated September 30, 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 his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On December 22, 2008 appellant, then a 59-year-old former utility systems repaireroperator, filed an occupational disease claim (Form CA-2) alleging that he developed cancer as a 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

result of prolonged exposure to toxic chemicals while in the performance of duty.2

 In 

October 2009, OWCP accepted his claim for other named lymphoma variants, lymph nodes 

head, face, and neck. It later expanded the claim to include lymphoma of the left upper eyelid, 

renal cell carcinoma of the right kidney with right nephrectomy, adverse effect of chemotherapy, 

and chemo-induced sensory motor neuropathy of the upper and lower limbs. 

In an August 20, 2013 decision, OWCP granted appellant a schedule award for 100 

percent loss of his right kidney. The award covered a period of 156 weeks from May 3, 2003 

through April 28, 2006. 

On February 2, 2015 OWCP received appellant’s claim for an additional schedule award 

(Form CA-7). In a February 23, 2015 report, Dr. Samuel J. Olsen II, a Board-certified internist, 

found 50 percent permanent impairment of the left upper extremity and 40 percent permanent 

impairment of the right upper extremity. He also found 40 percent permanent impairment of the 

left lower extremity and 30 percent permanent impairment of the right lower extremity. 

However, Dr. Olsen indicated that his impairment rating was not based on the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (2009) 

(A.M.A., Guides). 

Based on the March 9, 2015 advice of its district medical adviser, OWCP referred 

appellant for a second opinion evaluation to determine the existence and extent of any permanent 

impairment to the bilateral upper and lower extremities. Dr. Bruce R. Leforce, a Board-certified 

neurologist, examined appellant on July 23, 2015 and provided a July 28, 2015 impairment 

rating. He found that appellant had reached maximum medical improvement and opined that he 

had three percent permanent impairment of both the left and right lower extremities due to mild 

sensory changes in the distal lower extremities. 

In an August 27, 2015 report, the district medical adviser, Dr. James W. Dyer, a Boardcertified orthopedic surgeon, reviewed the relevant medical evidence and concurred with 

Dr. Leforce’s three percent bilateral lower extremity impairment under Table 16-12, Peripheral 

Nerve Impairment, A.M.A., Guides 534 (6th ed. 2009). He also found no permanent impairment 

with respect to appellant’s upper extremities. 

By decision dated September 30, 2015, OWCP granted appellant a schedule award for 

three percent permanent impairment of both the left and right lower extremities. The award 

covered a period of 17.28 weeks from July 23 through November 20, 2015. 

On September 6, 2016 OWCP received appellant’s September 1, 2016 correspondence 

requesting reconsideration of his “visit to Dr. Le Force.” Appellant took issue with OWCP’s 

reliance on Dr. Leforce’s evaluation. He noted that the visit and brief history lasted only 15 

minutes and that Dr. Leforce did not review his record. Appellant also indicated that Dr. Leforce 

only asked him a few questions concerning his medical conditions. Additionally, Dr. Leforce 

reportedly spoke to appellant in a condescending manner and repeatedly asserted that appellant 

“only wanted something from the Government (money).” 

                                                             2

 At the time he filed his claim, appellant was no longer employed by the Department of the Army. On the Form 

CA-2, his former employing establishment noted that he currently worked as a project engineer with the General 

Services Administration (GSA). Appellant voluntarily retired from GSA effective July 3, 2009. 
3

In a September 15, 2016 decision, OWCP denied appellant’s request for reconsideration 

without a review of the merits of the claim. It noted that he had not submitted any medical 

evidence indicating that Dr. Leforce’s impairment rating was incorrect. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4

 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.5

 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously 

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.6 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.7

A claimant may seek an increased schedule award if the evidence establishes that he or 

she sustained an increased impairment at a later date causally related to the employment injury.8 

OWCP procedures provide that a claim for an increased schedule award may be based on an 

incorrect calculation of the original award or an increased impairment at a later date which is due 

to work-related factors. In such a situation, an increased schedule award may be payable if 

supported by the medical evidence.9

                                                             3

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 

5 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System. Id. at Chapter 2.1602.4b. 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. at § 10.608(a), (b). 

8 See K.J., Docket No. 06-1192 (issued November 17, 2006). 

9 Supra note 5 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.9 

(February 2013). In addition, OWCP procedures provide that a request for reconsideration of a schedule award 

based on a disagreement with the percentage awarded must be distinguished from a situation where a claimant who 

previously received an award is filing for an increased impairment due to a worsening of the claimant’s medical 

condition due to deterioration of his or her condition or increased exposure. Such a request for increased 

impairment is not subject to the one-year time limitation for reconsideration. Supra note 5 at Chapter 2.1602.5.a 

(February 2016). 
4

ANALYSIS 

In a September 15, 2016 decision, OWCP denied appellant’s request for reconsideration 

and did not review the merits of the claim, noting that he had not submitted any medical 

evidence indicating that Dr. Leforce’s impairment rating was incorrect. The Board finds that this 

was proper because appellant did not claim an incorrect calculation of the original award. As 

appellant has not made a claim for an increased schedule award for his lower extremities, he is 

not entitled to a merit decision on the medical evidence.10

In his September 6, 2016 request for reconsideration, appellant took issue with 

Dr. Leforce’s July 23, 2015 second opinion evaluation, noting that the physician was 

condescending and had not conducted a thorough evaluation. However, he neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Additionally, appellant did not advance any relevant legal arguments not previously considered 

by OWCP. The Board finds that he is not entitled to a review of the merits based on the first and 

second requirements under section 10.606(b)(3).11

Appellant also failed to submit any relevant and pertinent new evidence with his 

September 6, 2016 request for reconsideration. The issue on reconsideration was whether he had 

greater than three percent permanent impairment of the left and right lower extremities. This 

was a medical issue, and notwithstanding appellant’s criticism of Dr. Leforce’s second opinion 

evaluation, he did not submit any medical evidence demonstrating a greater impairment than 

previously awarded. Because appellant did not provide any relevant and pertinent new evidence, 

he is not entitled to a review of the merits based on the third requirement under section 

10.606(b)(3).12 Accordingly, OWCP properly declined to reopen his case under 5 U.S.C. 

§ 8128(a). 

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). 

                                                             10 Cf., supra note 8 (where the claimant used the term reconsideration in his May 19, 2005 letter, but clearly 

expressed a request for an increased schedule award, indicating that his condition had worsened and referred to a 

magnetic resonance imaging scan as support for an additional schedule award, the Board found that he had made a 

claim for an increased schedule award for his lower extremities and was entitled to a merit decision on the medical 

evidence). 

11 Id. at § 10.606(b)(3)(i) and (ii). 

12 Id. at § 10.606(b)(3)(iii). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 23, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board