United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

MEDICAL COMMAND, Camp Lejeune, NC, 

Employer 

__________________________________________ 

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Docket No. 17-0628 

Issued: June 28, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 27, 2017 appellant filed a timely appeal from a November 22, 2016 nonmerit 

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

days elapsed from February 1, 2016, the date of the most recent merit decision, 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 this claim. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 11, 2013 appellant, then a 58-year-old office secretary, filed a traumatic 

injury claim (Form CA-1) alleging that on January 9, 2013, she injured her wrists and left foot 

when she tripped and fell on a tiled floor. She stopped work on January 9, 2013. 

By decision dated September 11, 2013, OWCP accepted appellant’s claim for a closed 

fracture of the fifth left metatarsal bone. On September 19, 2013 it updated appellant’s list of 

accepted conditions to include cellulitis of the left foot, except for the toes. Appellant received 

medical benefits and wage-loss compensation benefits on the supplemental rolls as of August 20, 

2013 and on the periodic rolls as of October 20, 2013. 

Appellant filed a claim for a schedule award (Form CA-7) on May 23, 2014. OWCP 

thereafter received a July 23, 2014 report from Keith L. Blankenship, a physical therapist, who 

rated appellant’s left 5th metatarsal shaft fracture under the sixth edition of the A.M.A., Guides as 

three percent permanent impairment of the left lower extremity. This report was reviewed by 

Dr. James W. Dyer, a Board-certified orthopedic surgeon, acting as OWCP’s medical adviser, on 

November 19, 2014. Dr. Dyer concurred that pursuant to the A.M.A., Guides, Table 16-2, page 

504, a 5th metatarsal fracture with complete healing was equal to three percent permanent 

impairment of the left lower extremity.2

 

On December 15, 2014 OWCP issued a schedule award for three percent permanent 

impairment of the left lower extremity. Appellant requested reconsideration of this decision on 

January 26, 2015. 

On April 27, 2015 OWCP received a report from Dr. Sean P. Scully, a Board certified 

orthopedic surgeon. Dr. Scully noted that appellant’s diagnosis was closed fracture of the 

metatarsal bone. He also noted his belief that she was developing post-traumatic midfoot 

arthritis. Dr. Scully related that pursuant to the A.M.A., Guides, if appellant’s arthritis was 

incorporated into an impairment rating she would be entitled to an award for six percent 

permanent impairment of the left lower extremity. 

On June 4, 2015 another OWCP medical adviser reviewed Dr. Scully’s report.3

 This 

medical adviser related that appellant had reached maximum medical improvement on March 26, 

2015 and that he concurred with Dr. Scully’s assessment that pursuant to Table 16-2 of the 

A.M.A., Guides appellant had an additional three percent permanent impairment of the left lower 

extremity. 

On June 10, 2015 OWCP issued a schedule award for an additional three percent 

permanent impairment of the left lower extremity leg for a total six percent permanent 

impairment. 

 2

 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., 

Guides, published in 2009. See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure 

Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013). 

3

 The physician’s signature is illegible. 
3

Appellant again requested reconsideration on August 20, 2015. With her request she 

submitted a narrative statement, hospital records, and a narrative report dated September 17, 

2013 signed by a nurse practitioner. 

By decision dated August 31, 2015, OWCP reviewed the merits of appellant’s claim and 

affirmed its prior decision of June 10, 2015. It noted that none of the evidence submitted by 

appellant contained evidence of a higher impairment rating. 

On November 23, 2015 appellant again requested reconsideration. OWCP received a 

September 13, 2013 emergency room report signed by Dr. Marshall Frink, a family practitioner. 

In this report, Dr. Frink related that appellant had developed postoperative cellulitis after 

hardware was removed from her left foot on August 23, 2013. Appellant submitted medical 

evidence already of record from Dr. Scully. She also submitted a hospital discharge report dated 

February 27, 2014, signed by Dr. Scully, which noted that appellant had undergone a total left 

knee arthroplasty on February 24, 2014. 

By decision dated February 1, 2016, OWCP reviewed the merits of appellant’s claim and 

denied modification of the decision of August 31, 2015. It noted that she had not provided 

sufficient evidence to warrant an increased schedule award. 

By letter dated July 10, 2016 and received July 18, 2016, appellant requested 

reconsideration of OWCP’s February 1, 2016 decision. With her request, she attached a 

narrative statement that referenced the A.M.A., Guides; a medical report dated February 17, 

2016 from Dr. Scully, diagnosing her with a bunion; several results of diagnostic testing of her 

right knee and foot; an undated and unsigned document recommending an impairment rating of 

“more than [three] percent”; an undated letter from her Board-certified psychiatrist, Dr. Tavid 

Tipton; a letter dated April 14, 2014 from Dr. Scully noting that her knee problems may stem 

from a left foot injury; a brief from an attorney requesting acceptance of major depressive 

disorder as a condition under appellant’s claim; various records from counselors; and records of 

her prescribed medications. 

By decision dated November 22, 2016, OWCP denied appellant’s request for 

reconsideration. It found that appellant had submitted repetitious or irrelevant evidence and 

argument in support of her request for reconsideration. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration does not meet at least one of the three 

 4

 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 
4

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.5

ANALYSIS 

OWCP issued a June 10, 2015 decision granting appellant a schedule award for six 

percent permanent impairment of the left lower extremity. 

The last merit decision in this claim was a February 1, 2016 OWCP decision denying 

modification of the schedule award for six percent. By letter dated July 10, 2016, appellant 

requested reconsideration of the February 1, 2016 decision. With her request, she attached a 

narrative statement; a medical report dated February 17, 2016 from Dr. Scully diagnosing her 

with a bunion; several results of diagnostic testing of her right knee and foot; an undated and 

unsigned document recommending an impairment rating of “more than 3 percent”; an undated 

letter from her Board-certified psychiatrist, Dr. Tavid Tipton; a letter dated April 14, 2014 from 

Dr. Scully, noting that her knee problems may stem from a left foot injury; a brief from an 

attorney requesting acceptance of major depressive disorder as a condition under appellant’s 

claim; various records from counselors; and records of her prescribed medications. 

By decision dated November 22, 2016, OWCP denied appellant’s request for 

reconsideration. It found that appellant had submitted only repetitious or irrelevant evidence in 

support of her request for reconsideration of the decision of February 1, 2016. 

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

reconsideration and not as a claim for an increased schedule award. In her July 10, 2016 letter, 

appellant specifically claimed reconsideration of facts which she alleged had not been considered 

in the February 1, 2016 decision.6

 She was not claiming a new award based on a new rating of 

permanent impairment.7 The issue presented on appeal is whether appellant met any of the 

requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the 

merits of her claim. In her July 10, 2016 request for reconsideration, she 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. Thus, she is not entitled to a review of the merits of 

her 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 

entitlement to a schedule award greater than the six percent already awarded. A claimant may be 

entitled to a merit review by submitting relevant and pertinent new evidence, but appellant did 

not submit any pertinent new and relevant evidence with her request for reconsideration. 

Appellant did not submit any medical evidence containing a greater impairment rating than six 

percent permanent impairment of her left lower extremity and none of the medical evidence 

submitted was relevant to the extent of her permanent impairment. While appellant submitted a 

 5 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

6 See S.H., Docket No. 17-0373 (issued April 12, 2017). 

7 See A.C., Docket No. 13-1810 (issued January 6, 2014). 
5

narrative statement in which she referenced the A.M.A., Guides, appellant is not a physician and 

her own interpretation of the calculation of her permanent impairment is not medical evidence 

and is thus irrelevant.8

 As such, the evidence submitted on reconsideration of the February 1, 

2016 decision was irrelevant, and insufficient to warrant reconsideration of appellant’s claim. 

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

20 C.F.R. § 10.606(b)(3) and thus properly denied merit review. She did not establish that 

OWCP erroneously applied or interpreted a specific point of law, advance a relevant legal 

argument not previously considered by OWCP, or submit relevant and pertinent new evidence 

not previously considered. 

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. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 22, 2016 is affirmed. 

Issued: June 28, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 See C.A., Docket No. 13-1877 (issued April 8, 2014).