United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Youngstown, OH, Employer 

__________________________________________ 

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Docket No. 17-0373 

Issued: April 12, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 8, 2016 appellant, through counsel, filed a timely appeal from the 

November 10, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last merit decision of June 18, 2015 to the 

filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

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

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

FACTUAL HISTORY 

On December 9, 2013 appellant, then a 53-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that day she injured her right middle finger when the rear 

door of the postal vehicle shut on her right hand. She stopped work on December 9, 2013. 

OWCP accepted the claim for closed fracture right metacarpal. It subsequently expanded the 

claim to include nonunion of right fracture. Wage-loss compensation and medical benefits were 

paid including a January 3, 2014 surgery for open reduction, debridement, and internal fixation 

of plates and screws of the right middle finger. OWCP also authorized a second surgery on 

March 21, 2014, which involved removal of hardware and right finger revision open reduction. 

Following a period of temporary total disability, appellant returned to full-duty work on 

September 30, 2014. 

Appellant also has an accepted occupational disease claim for a right shoulder condition 

that arose on or about February 25, 1990. 

On January 26, 2015 appellant filed a claim for a schedule award (Form CA-7). No 

evidence was received with her claim. On February 2, 2015 OWCP advised appellant of the 

deficiencies in her claim and providing her an opportunity to submit the evidence necessary to 

establish her claim. In response, it received duplicate copies of medical reports dated 

December 12, 2013, January 3, and July 14, 2014 from Dr. Adrian Butler, a Board-certified 

orthopedic surgeon. 

By decision dated March 10, 2015, OWCP denied appellant’s claim for a schedule award 

as she had failed to provide a permanent impairment rating from a qualified physician based on 

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

Impairment (A.M.A., Guides) (2009). 

In an April 6, 2015 letter appellant, through counsel, requested an oral hearing with a 

representative of OWCP’s Branch of Hearings and Review. 

In an April 17, 2015 report, Dr. Catherine Watkins Campbell, a family practitioner, 

provided results on examination and noted that appellant had reached maximum medical 

improvement (MMI) on November 19, 2014. She found 49 percent middle finger digit 

permanent impairment based on loss of range of motion (ROM) under Table 15-31, A.M.A., 

Guides 470 (6th ed. 2009). Dr. Watkins Campbell indicated that the digit impairment converted 

to nine percent right upper extremity impairment. 

By decision dated October 9, 2015, the hearing representative conducted a preliminary 

review and determined that the case was not in posture for a hearing. She remanded the case to 

OWCP for further medical development. 
3

As instructed by the hearing representative and in accordance with its procedures, OWCP 

forward a statement of accepted facts along with the case file, including Dr. Watkins Campbell’s 

April 17, 2015 report, to its district medical adviser (DMA) for a schedule award impairment 

determination. In an October 19, 2015 report, the DMA, Dr. Morley Slutsky, Board-certified in 

occupational medicine indicated that appellant had reached MMI on February 16, 2015. He 

disagreed, in part, with Dr. Watkins Campbell’s impairment findings and provided a detailed 

explanation for his disagreement. Citing to tables and figures in the A.M.A., Guides, the DMA 

concluded that appellant had a final adjusted right middle finger digit ROM impairment of 57 

percent, as opposed to Dr. Watkins Campbell’s 49 percent rating. The DMA’s 57 percent right 

middle finger digit impairment converted to 10 percent right upper extremity impairment. 

By decision dated December 2, 2015, OWCP denied the claim for an increased schedule 

award. It noted that appellant had already received schedule awards totaling 15 percent right 

upper extremity impairment under File No. xxxxxx664. As the current 10 percent rating was 

less than the total prior awards, OWCP found that she was not entitled to an additional award.3

 

On June 24, 2016 OWCP received counsel’s May 18, 2016 request for reconsideration on 

appellant’s behalf. Counsel submitted an April 17, 2015 report from Dr. Watkins Campbell, 

which he claimed had not been previously considered. 

By decision dated November 10, 2016, OWCP denied counsel’s request for 

reconsideration without a merit review. It found that his May 18, 2016 letter did not meet the 

requirements for a review under 20 C.F.R. § 10.606(b)(3). 

LEGAL PRECEDENT 

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 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.6 Atimely application for reconsideration, including all supporting documents, must set 

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

 3

 The December 2, 2015 decision referenced three prior schedule awards (December 27, 2007, May 15, 2012, and 

January 4, 2013) that appellant reportedly received with respect to her right shoulder condition under File No. 

xxxxxx664. However, the referenced decisions or the associated impairment ratings are not in the current case 

record. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a 

(June 2011). 

4

 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). 

5

 20 C.F.R. § 10.607. 

6 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 the OWCP decision for which review is sought. Supra note 3 at 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. 
4

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.7 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.8 

ANALYSIS 

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

without further merit review.9

 

The Board first finds that OWCP properly considered counsel’s request as a request for 

reconsideration and not as a claim for an increased schedule award. In his correspondence to 

OWCP, counsel specifically noted that he was requesting reconsideration of OWCP’s 

December 2, 2015 decision,10 and requested that the previous decision be overturned following 

review of the evidence of record. As counsel was contesting the prior decision, not seeking a 

new award based upon new impairment, the Board finds a proper reconsideration request.11

As noted above, the Board does not have jurisdiction over the merits of the December 2, 

2015 decision. The issue presented on appeal is whether the request for reconsideration met any 

of the requirements of 20 C.F.R. § 10.606(b)(3), thereby warranting a review of the merits of the 

claim. In his May 18, 2016 correspondence, counsel 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. He resubmitted the April 17, 2015 impairment rating and claimed that 

OWCP had failed to consider it. To the contrary, OWCP had previously forwarded 

Dr. Watkins Campbell’s April 17, 2015 report to its DMA for review, and OWCP specifically 

referenced his report in its December 2, 2015 decision. The medical adviser had reviewed 

Dr. Watkins Campbell’s report and found that appellant was entitled to 10 percent right upper 

extremity permanent impairment rather than Dr. Watkins Campbell’s 9 percent right upper 

extremity permanent impairment rating. Providing additional evidence that either repeats or 

duplicates information already in the record of evidence does not constitute a basis for reopening 

a claim.12

The Board finds that counsel failed to show that OWCP erroneously applied or 

interpreted a point of law, failed to advance a point of law or fact not previously considered by 

OWCP, and failed to submit relevant and pertinent new evidence not previously considered. 

Consequently, appellant has not met any of the regulatory requirements and OWCP properly 

 7 Id. at § 10.606(b)(3). 

8 Id. at § 10.608(a), (b). 

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

10 See J.K., Docket No. 14-1082 (issued November 24, 2014). 

11 See A.C., Docket 13-1810 (issued January 6, 2014); supra note 6 at Chapter 2.1602.3(b) (October 2011). 

12 James W. Scott, 55 ECAB 606, 608 n.4 (2004). 
5

declined her request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).13 

Thus, OWCP did not abuse its discretion in refusing to reopen her claim for a review on the 

merits. 

Appellant may request a schedule award or increased schedule award 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 OWCP properly denied appellant’s request for merit review under 5 

U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the November 10, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006).