United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Atlanta, GA, Employer

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Docket No. 17-1069

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 17, 2017 appellant filed a timely appeal from a November 2, 2016 merit decision 

and a January 26, 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 over the merits of the claim.2

ISSUES

The issues are: (1) whether appellant has established permanent impairment of his right 

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

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

 

1 5 U.S.C. § 8101 et seq.

2 The record provided the Board includes evidence received after OWCP issued its January 26, 2017 decision. The 

Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board 

is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On May 26, 2015 appellant, then a 53-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, he injured his right ankle when he stepped in a pothole 

while in the performance of duty. He stopped work on May 26, 2015. OWCP accepted the claim

for closed fracture fifth metatarsal bone, right and right foot sprain. It paid wage-loss 

compensation on the supplemental rolls commencing July 11, 2015. Appellant returned to work 

in full-duty status on August 5, 2015. He continued to submit medical evidence to OWCP.

In a July 29, 2016 report, Dr. Daniel R. Orcutt, a Board-certified orthopedic surgeon, 

advised that appellant was at maximum medical improvement (MMI). Physical examination of 

the right ankle and foot was reported as normal with mild tenderness of the fifth metatarsal. 

Dr. Orcutt provided an assessment of healed comminuted right fifth metatarsal fracture, minimally 

displaced with some mild intermittent pain. He noted that a magnetic resonance imaging (MRI) 

scan showed that the fracture was healed.

On September 21, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In a September 28, 2016 letter, OWCP requested that appellant submit a medical report 

from his treating physician evaluating permanent impairment, pursuant to the sixth edition of the 

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

A.M.A., Guides).

3 Appellant was afforded 30 days to submit the required medical evidence.

In an October 3, 2016 report, Dr. Orcutt assessed comminuted right fifth metatarsal 

fracture, minimally displaced with routine healing. As appellant continued to have mild 

intermittent pain in his lateral foot, Dr. Orcutt recommended orthotics. He also indicated that 

appellant was at MMI. Dr. Orcutt advised that, if appellant’s foot pain was not improved with 

orthotics, then he would be rated for permanent impairment. An October 3, 2016 durable medical 

equipment order for custom orthotic was provided, which OWCP approved. 

By decision dated November 2, 2016, OWCP denied appellant’s claim for a schedule 

award as the evidence of record was insufficient to establish permanent impairment of a scheduled 

member or function of the body. 

On January 17, 2017 appellant requested reconsideration of OWCP’s November 2, 2016 

decision. In an accompanying January 9, 2017 letter, he also requested a copy of his medical 

records and billing information.

Medical reports from Dr. Orcutt dated November 11 and December 12, 2016 were 

received. Dr. Orcutt noted that appellant had lateral foot pain with the orthotics. He continued to 

report that appellant was at MMI. Dr. Orcutt again reiterated that if appellant’s foot pain was not 

improved with orthotics, then he would be rated for permanent impairment.

 

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

By decision dated January 26, 2017, OWCP denied appellant’s request for reconsideration 

of its November 2, 2016 decision. It found that appellant had not submitted new and relevant 

evidence or argument in support of his request for reconsideration. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA and its implementing regulations 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.4 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 to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for 

evaluating schedule losses.5

It is the claimant’s burden of proof to establish that he or she has sustained a permanent 

impairment of the scheduled member or function as a result of any employment injury.6 OWCP 

procedures provide that, to support a schedule award, the file must contain competent medical 

evidence which shows that the impairment has reached a permanent and fixed state and indicates 

the date on which this occurred (date of MMI), describes the impairment in sufficient detail so that 

it can be visualized on review, and computes the percentage of impairment in accordance with the 

A.M.A., Guides.

7

 The evaluation of permanent impairment should include a detailed report that 

provides history of clinical presentation, physical findings, functional history, clinical studies or 

objective tests, analysis of findings, and the appropriate impairment based on the most significant 

diagnosis, as well as a discussion of how the impairment rating was calculated.8

ANALYSIS -- ISSUE 1

Appellant claimed a schedule award based on his accepted right foot injury. By decision 

dated November 2, 2016, OWCP denied his schedule award claim finding that he had failed to 

submit medical evidence of a permanent impairment resulting from his work injury.

The Board finds that appellant has not submitted evidence sufficient to establish permanent 

impairment to a scheduled member warranting a schedule award. By development letter dated 

September 28, 2016, OWCP informed him of the type of evidence necessary to establish his 

schedule award claim and specifically requested that he submit an impairment evaluation from his 

 

4 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5 K.H., Docket No. 09-0341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition 

will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).

6 Tammy L. Meehan, 53 ECAB 229 (2001).

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

2.808.5 (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010).

8

Id. at 2.808.6(a).
4

attending physician in accordance with the sixth edition of the A.M.A., Guides. Appellant was

afforded 30 days to submit the necessary evidence. 

The October 3, 2016 medical report from Dr. Orcutt noted appellant’s continued foot pain 

and recommended orthotics. Dr. Orcutt indicated that appellant was at MMI. He also advised that 

if appellant’s foot pain was not improved with orthotics, then he would undergo a permanent 

impairment evaluation. The Board finds that Dr. Orcutt’s report is insufficient to establish a 

permanent impairment. While Dr. Orcutt indicated MMI had been reached, he failed to provide 

an impairment rating for the right lower extremity, noting that it was dependent upon appellant’s 

success with orthotics.9 His report is therefore insufficient to establish permanent impairment of 

the right lower extremity.

It is appellant’s burden of proof to establish a permanent impairment of a scheduled 

member.10 The medical evidence must include a description of any physical impairment in 

sufficient detail so that the claims examiner and others reviewing the file would be able to clearly 

visualize the impairment with its resulting restrictions and limitations.11 Appellant did not submit 

such evidence and thus, he did not meet his burden of proof to establish his schedule award claim.12

LEGAL PRECEDENT -- ISSUE 2

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

matter of right.13 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.14 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.15 

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

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

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

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

 

9 E.D., Docket No. 10-0967 (issued January 7, 2011).

10 Supra note 5.

11 See A.L., Docket No. 08-1730 (issued March 16, 2009).

12 See D.T., Docket No. 17-0102 (issued April 13, 2017); V.W., Docket No. 09-2026 (issued February 16, 2010); 

L.F., Docket No. 10-0343 (issued November 29, 2010).

13 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 own motion or on application.” 5 U.S.C. § 8128(a).

14 20 C.F.R. § 10.607.

15 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 (iFECS). Id. at Chapter 2.1602.4b.
5

considered by OWCP.16 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.17

ANALYSIS -- ISSUE 2

OWCP issued a November 2, 2016 decision finding that appellant had not established 

permanent impairment of a scheduled member or function of the body, warranting a schedule 

award under FECA. On January 9, 2017 appellant requested reconsideration of that decision. 

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

In his request for reconsideration, appellant did not show that OWCP erroneously applied 

or interpreted a specific point of law, or advance a new and relevant legal argument not previously 

considered. Rather, he submitted a January 9, 2017 statement which requested a copy of his 

medical records and billings. This is immaterial or irrelevant as it does not challenge the 

correctness of the schedule award decision to require merit review. It is not a basis for reopening 

the case.18 Thus, appellant is not entitled to a review of the merits of his claim based on the first 

and second above-noted requirements under section 10.606(b)(3). 

The underlying issue is whether appellant has submitted sufficient evidence to establish 

permanent impairment related to his accepted injury. A claimant may be entitled to a merit review 

by submitting relevant and pertinent new evidence, but appellant did not submit any such evidence 

in this case. While appellant submitted new progress reports from Dr. Orcutt dated November 11, 

2016 and December 12, 2016, those reports do not contain an impairment rating in accordance to 

the A.M.A., Guides.

19

 Rather, they again appear to hinge an impairment rating on appellant’s 

success with the orthotics. As such, they are insufficient to warrant reconsideration of appellant’s 

claim. 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.20

The Board accordingly findings that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show 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. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review.

 

16 20 C.F.R. § 10.606(b)(3).

17 Id. at § 10.608(a), (b).

18 Joseph A. Brown, Jr., 55 ECAB 542 (2004).

19 See B.D., Docket No. 16-1177 (issued October 27, 2016).

20 See Y.C., Docket No. 17-1212 (issued April 11, 2018). 
6

On appeal appellant contends that his physician had submitted a schedule award rating. 

However, such a report was not part of the record at the time of the January 26, 2017 decision. 

OWCP did not err by failing to consider evidence that was not of record in this case.21 

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

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

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not established permanent impairment of his right lower 

extremity entitling him to a schedule award. The Board also 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 January 26, 2017 and November 2, 2016 

decisions of the Office of Workers’ Compensation Programs are 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

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

 

21 See N.T., Docket No. 14-1895 (issued March 4, 2015).