United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jacksonville, FL, Employer

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Docket No. 18-0110

Issued: May 1, 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 October 13, 2017 appellant filed a timely appeal from a May 1, 2017 nonmerit decision 

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

the last merit decision dated February 7, 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 over the merits of appellant’s 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). 

On appeal appellant asserts that he submitted sufficient medical evidence from his 

physician to establish entitlement to a schedule award.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 6, 1999 appellant, then a 43-year-old mail processor, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his left shoulder that day. He was assigned modified

work duties. OWCP accepted that the November 6, 1999 employment injury caused cervical 

strain; left shoulder strain; cervical herniated discs at C4-5, C5-6, and C6-7; and left shoulder 

impingement. 

Appellant was placed on administrative leave for the period June 7 to July 6, 2010 because 

no work was available within his restrictions. He received wage-loss compensation on the 

supplemental rolls beginning July 14, 2010, and on the periodic rolls beginning in August 2010. 

On October 27, 2011 Dr. Eric W. Scott, a Board-certified neurosurgeon, performed an anterior 

discectomy and decompression at C4-5 and C5-6. 

On August 12, 2013 appellant returned to restricted duty for approximately four hours a 

day and OWCP reduced his wage-loss compensation accordingly. He returned to full-time 

modified duty on April 1, 2015. By decision dated June 10, 2015, OWCP found that appellant’s 

actual earnings in the modified position of mail processing clerk fairly and reasonably represented 

his wage-earning capacity with zero loss of wage-earning capacity. Accordingly, it reduced his 

wage-loss compensation benefits to zero. Medical benefits for the effects of the employmentrelated injury continued. 

On August 24, 2016 appellant filed a schedule award claim (Form CA-7). 

By development letter dated August 30, 2016, OWCP informed appellant of the medical 

evidence needed to support his schedule award claim. This was to include an opinion from his 

physician that he had reached maximum medical improvement and an impairment rating in 

accordance with the sixth edition of the American Medical Association, Guides to the Evaluation 

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

submit the necessary evidence. 

In treatment notes dated September 28 and October 20, 2016, Dr. Christopher Roberts, 

Board-certified in anesthesiology and pain medicine, noted appellant’s complaints of cervical 

spine neck pain. He described physical examination findings and diagnosed cervical 

postlaminectomy syndrome, cervicalgia, and cervical facet joint syndrome. 

On November 1, 2016 appellant filed a second schedule award claim (Form CA-7). 

By letter dated November 7, 2016, OWCP asked Dr. Roberts to provide an impairment 

rating in accordance with the sixth edition of the A.M.A., Guides. Appellant thereafter submitted 

a November 22, 2016 magnetic resonance imaging scan of the cervical spine that demonstrated 

postsurgical changes and multilevel degenerative change, and broad-based disc protrusions with 

associated canal stenosis and foraminal stenosis. 

 

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

By decision dated February 7, 2017, OWCP denied appellant’s schedule award claim, 

finding that the evidence of record was insufficient to establish permanent impairment of a 

scheduled member in accordance with the sixth edition of the A.M.A., Guides. On April 25, 2017 

appellant requested reconsideration. He forwarded a March 19, 2017 report which was signed by 

a physician assistant and cosigned by Dr. Roberts. This report noted appellant’s cervical spine 

examination findings of painful limited neck range of motion and a positive facet loading test. 

Dr. Roberts advised that in accordance with Chapter 17 of the sixth edition of the A.M.A., Guides, 

The Spine and Pelvis, under Table 17-4 appellant had a class 3 cervical spine impairment for 

multiple disc herniations which equaled nine percent permanent impairment.3 

By decision dated May 1, 2017, OWCP denied appellant’s request for reconsideration of 

the merits of his schedule award claim. It indicated that the March 19, 2017 medical report was 

rendered by a physician assistant who did not qualify as a physician under FECA. OWCP noted 

that, by decision dated February 14, 2017, appellant had been granted a schedule award for five 

percent permanent impairment of the left arm under File No. xxxxxx889. It denied his

reconsideration request under the instant claim, adjudicated by OWCP under File No. xxxxxx494, 

because the evidence submitted did not contain a medical opinion indicating that he had reached 

maximum medical improvement and had permanent impairment of a scheduled member as a result 

of the work injury. 

LEGAL PRECEDENT

Under section 8128(a) of FECA,4 OWCP has the discretion to reopen a case for review on 

the merits. It must exercise this discretion in accordance with the guidelines set forth in section 

10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain 

review of the merits of his or her written application for reconsideration, including all supporting 

documents, sets forth arguments and contain evidence which: 

“(1) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(2) Advances a relevant legal argument not previously considered by OWCP; or 

“(3) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”

5

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP 

without review of the merits of the claim.6

 

3 This correspondence was also dated March 20, 2017. 

4 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b).
4

An 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.7

ANALYSIS

The Board finds that this case is not in posture for decision. 

In its May 1, 2017 decision, OWCP denied merit review of appellant’s request for an 

increased schedule award. 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. As

discussed infra, he submitted new and relevant evidence. OWCP, therefore, erred in denying merit 

review.

The Board first notes that, contrary to OWCP’s finding, Dr. Roberts signed the March 19, 

2017 report. While the report was signed by a physician assistant, it was also signed by

Dr. Roberts.8 In that report, Dr. Roberts concluded that appellant had nine percent permanent 

impairment under Table 17-4 as a result of his cervical disc herniations. 

Although the A.M.A., Guides includes guidelines for rating impairment due to disorders 

of the spine, under FECA, a schedule award is not payable for injury to the spine.9 FECA, 

however, was modified such that a claimant may be entitled to a schedule award for permanent 

impairment to an extremity even though the cause of the impairment originated in the spine.10

In the case at hand, OWCP did not inform Dr. Roberts of the procedures to be used for 

impairment due to a spinal condition. Section 3.700 of OWCP procedures memorializes proposed 

tables outlined in a July and August 2009 The Guides Newsletter.

11

 Specifically, OWCP will 

address lower extremity impairments originating in the spine through Table 16-1112 and upper 

extremity impairment originating in the spine through Table 15-14.13

 

7 See B.K., 59 ECAB 228 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and 

Permanent Disability Claims Chapter 2.808.9 (February 2013).

8 Section 8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 

5 U.S.C. § 8101(2). Registered nurses, licensed practical nurses, and physician assistants are not “physicians” as 

defined under FECA. Their opinions are of no probative value. See Roy L. Humphrey, 57 ECAB 238 (2005).

9 Pamela J. Darling, 49 ECAB 286 (1998).

10 Thomas J. Engelhart, 50 ECAB 319 (1999).

11 Federal (FECA) Procedure Manual, Part 3 -- Medical, Exhibit 1, note 5 Chapter 3.700 (January 2010); The Guides 

Newsletter is included as Exhibit 4.

12 Supra note 2 at 533.

13 Id. at 425.
5

As noted, 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 employmentrelated condition resulting in permanent impairment or increased impairment.14

 As he submitted 

an impairment evaluation from Dr. Roberts finding nine percent permanent impairment, the Board 

finds that the case should be remanded to OWCP to conduct a merit review of appellant’s schedule 

award claim.

15

 Following this and such further development deemed necessary, OWCP shall issue 

a de novo decision regarding appellant’s request for an additional schedule award. 

CONCLUSION

The Board finds that OWCP improperly 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 1, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded to OWCP for proceedings consistent 

with this decision of the Board.

Issued: May 1, 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

 

14 Supra note 7.

15 Id. at Chapter 2.808.6e (March 2017).