United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.E., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

Window Rock, AZ, Employer 

__________________________________________ 

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Docket No. 17-0594 

Issued: September 14, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 23, 2017 appellant filed a timely appeal from an August 4, 2016 nonmerit 

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

elapsed from the last merit decision of July 8, 2016 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 claim.2

 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the August 4, 2016 decision. Since the 

Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board 

may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 

126 (2005). 
2

FACTUAL HISTORY 

On January 7, 2014 appellant, then a 57-year-old medical director, filed a traumatic 

injury claim (Form CA-1) alleging that on January 2, 2014 he slipped on ice and fell onto his 

right side when leaving work. He stopped work on January 3, 2014. OWCP accepted 

appellant’s claim for right distal radius and ulnar fracture. 

On February 7, 2014 appellant underwent authorized right wrist open reduction internal 

fixation surgery. 

In a March 10, 2014 telephone call note (Form CA-110), OWCP confirmed with the 

employing establishment that appellant elected continuation of pay from January 3 to 

February 16, 2014 and currently wanted to stay on sick leave instead of receiving benefits 

through OWCP. 

Appellant continued to receive medical treatment and undergo physical therapy. In a 

July 31, 2014 work capacity evaluation form, Dr. Edmund Rowland, a Board-certified 

orthopedic hand surgeon, diagnosed right distal radius and ulnar fracture. He checked a box 

marked “yes” that appellant was capable of performing his usual job and indicated that he would 

need time off to continue physical therapy. Dr. Rowland noted that appellant had reached 

maximum medical improvement (MMI). 

By decision dated August 6, 2014, OWCP terminated appellant’s entitlement to wageloss compensation benefits. It found that because the medical evidence of record established that 

he was capable of returning to full duty, appellant was no longer disabled from his date-of-injury 

position. 

On April 23, 2015 appellant filed a claim for schedule award (Form CA-7). 

In support of appellant’s request for a schedule award, OWCP received a November 20, 

2014 report from Dr. David L. Reinhard, Board-certified in physical medicine and rehabilitation. 

Dr. Reinhard described that on January 2, 2014 appellant fractured his right distal radius as a 

result of a work-related fall and underwent closed reduction surgery. He reviewed appellant’s 

history and conducted an examination. Dr. Reinhard observed restricted range of motion (ROM) 

of the right wrist with some pain with palpation over the distal radius. He also reported 

decreased right hand grip strength and some atrophy in the right forearm. Dr. Reinhard 

diagnosed comminuted distal right radius fracture, status post open reduction and internal 

fixation, and status post slip-and-fall injury at work leading to the right distal radius and ulnar 

styloid fractures. He determined that, according to the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2009), Table 

15-32, page 473, using the ROM method of impairment rating, appellant had zero percent 

impairment for 60 degrees of flexion of the right wrist, three percent impairment for 40 degrees 

of right wrist extension, two percent impairment for 13 degrees of right radial deviation, and two 

percent impairment for the 23 degrees of ulnar deviation for a total of seven percent right upper 

extremity permanent impairment. Dr. Reinhard noted that this impairment was also equivalent 

to four percent whole person impairment. 

Dr. Morley Slutsky, an OWCP medical adviser Board-certified in occupational medicine, 

reviewed appellant’s claim including Dr. Reinhard’s impairment rating in a May 13, 2015 report. 
3

He disagreed with Dr. Reinhard’s findings and explained that Dr. Reinhard used the ROM 

method with invalid ROM measurements, but the preferred method was the diagnosis-based 

impairment (DBI) method. Dr. Slutsky reported that appellant was a class one diagnosis for 

right wrist fracture. He assigned net adjustment factors of one for functional history, one for 

physical examination, and two for clinical studies, for a total net adjustment calculation of one. 

Dr. Slutsky concluded that appellant had a total of four percent right upper extremity permanent 

impairment. He indicated that appellant had a date of MMI of November 20, 2014. 

By letter dated June 22, 2015, OWCP informed appellant that it was enclosing a copy of 

Dr. Slutsky’s May 13, 2015 report and requested additional evidence to support his schedule 

award claim. Appellant was afforded 30 days to submit the additional evidence. 

In a letter dated July 15, 2015, appellant asserted that OWCP lowered his disability rating 

from seven percent to four percent by dismissing parts of Dr. Reinhard’s report as “invalid.” He 

noted that OWCP did not examine him in order to obtain the data that would be considered 

“valid” and in order to make a valid and accurate rating. Appellant alleged that it was 

inappropriate and indicated that he had been a medical doctor for 34 years, as well as a medical 

director for 28 years. He also reported that Dr. Reinhard clearly stated that he used ROM 

methodology because of his significant loss of ROM. 

On July 23, 2015 OWCP granted appellant a schedule award for four percent permanent 

impairment of the right upper extremity. The award ran for 12.48 weeks for the period 

November 20, 2014 through February 15, 2015. 

Appellant continued to submit various medical reports to OWCP. In a May 18, 2016 

report, Dr. Rowland noted the January 2, 2014 employment injury and described the medical 

treatment appellant received. He related that appellant complained of wrist pain with occasional 

crepitation and loss of motion. Upon examination of appellant’s right shoulder, Dr. Rowland 

observed full ROM with no crepitation and no acromioclavicular (AC) instability. Examination 

of appellant’s elbow showed ulnohumeral crepitation, full flexion, and extension to within 5 or 

10 degrees. Dr. Rowland indicated that examination of appellant’s right wrist revealed a loss of 

10 or 20 degrees of flexion, extension, and tenosynovial crepitation over the flexors. He 

diagnosed complication of internal fixation device, pain in the right elbow, right wrist, and right 

shoulder, and primary osteoarthritis of the right elbow. Dr. Rowland provided x-ray examination 

reports of appellant’s right upper extremity. 

According to a May 24, 2016 telephone memorandum call (Form CA-110), OWCP 

discussed appellant’s July 23, 2015 schedule award decision with appellant and advised that, if 

he disagreed with the schedule award, he needed to exercise one of the afforded appeal rights. 

On May 24, 2016 OWCP received information that appellant had retired from federal 

service. 

On July 7, 2016 OWCP received a June 24, 2016 report by Dr. David Schneider, a 

Board-certified orthopedic surgeon, which noted appellant’s continued problems with his right 

elbow. Dr. Schneider noted that appellant had a previous radial head fracture from 1978 and 

described the continued treatment that appellant had received. He indicated that, following 

appellant’s work injury, appellant suffered a wrist fracture, but his elbow also became 

problematic. Dr. Schneider provided examination findings and diagnosed tear of the right rotator 
4

cuff, post-traumatic osteoarthritis of the right elbow, and symptomatic right elbow. He 

recommended a right total elbow arthroplasty. 

On July 7, 2016 appellant requested authorization for elbow surgery. OWCP granted 

authorization for appellant’s surgery. 

On July 8, 2016 OWCP expanded acceptance of appellant’s claim to include aggravation 

of right elbow osteoarthritis and ulnar humeral joint derangement and unspecified injury of the 

right rotator cuff muscle or tendon. 

On July 13, 2016 appellant requested reconsideration of the July 23, 2015 schedule award 

decision. He asserted that OWCP’s medical adviser decided to downgrade his impairment and 

had not adequately measured his ROM. Appellant also alleged that the medical adviser only 

evaluated parts of his impairment. He described that his elbow had deteriorated to the extent that 

it was useless and he had to undergo surgery. Appellant further asserted that his shoulder was 

likely to continue to deteriorate because of lack of stability caused by the loss of musculature and 

strength. 

Appellant submitted a July 6, 2016 right shoulder magnetic resonance imaging scan 

report by Dr. Paul Hsieh, a Board-certified diagnostic radiologist, who noted mild supraspinatus 

tendinosis, with no rotator cuff tear, faint, ill-defined marrow edema in the mild humerus head, 

and degenerative changes at the AC joint and glenohumeral joint. 

OWCP also received a July 11, 2016 operative report, which indicated that appellant had 

undergone elbow surgery by Dr. Rowland. 

By decision dated August 4, 2016, OWCP denied further merit review of appellant’s 

claim. It found that appellant’s reconsideration request failed to raise a substantive legal 

question and he failed to submit relevant and pertinent new evidence sufficient to warrant merit 

review pursuant to 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application.3

 

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (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.4

 If OWCP chooses to grant reconsideration, it reopens and reviews the 

case on its merits.5

 If the request is timely but fails to meet at least one of the requirements for 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 

5 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 
5

reconsideration, OWCP will deny the request for reconsideration without reopening the case for 

review on the merits.6

Even if the term reconsideration is used, when a claimant is not attempting to show error 

in the prior schedule award decision and submits medical evidence regarding an increased 

permanent impairment at a date subsequent to the prior schedule award decision, it should be 

considered a claim for an increased schedule award.7 

ANALYSIS 

The Board has duly considered the matter and finds that this case is not in posture for 

decision. On July 23, 2015 OWCP granted appellant a schedule award for four percent 

permanent impairment of the right upper extremity based on the May 13, 2015 report of 

OWCP’s medical adviser. 

Following this decision, appellant submitted a May 18, 2016 report by Dr. Rowland and a 

June 24, 2016 report by Dr. Schneider. These reports addressed appellant’s continued problems 

with his right elbow and described the medical treatment that appellant had received. On July 8, 

2016 OWCP accepted the additional conditions of aggravation of right elbow osteoarthritis and 

ulnar humeral joint derangement and unspecified injury of the right rotator cuff muscle or 

tendon. 

By letter received by OWCP on July 13, 2016, appellant requested reconsideration of the 

July 23, 2015 schedule award decision. He asserted that OWCP’s medical examiner had 

improperly dismissed his treating physician’s impairment rating based on ROM findings and had 

only considered portions of his impairment rating. Appellant also alleged that his right upper 

extremity impairment had worsened. 

By decision dated August 4, 2016, OWCP declined to reopen appellant’s claim for 

consideration of the merits pursuant to 5 U.S.C. § 8128(a). The Board finds, however, that 

appellant was not seeking reconsideration of the previous schedule award determination. Rather, 

appellant submitted new evidence and argument showing increased impairment of the right 

upper extremity.8

 

The Board has held that a claimant may request a schedule award or increased schedule 

award at any time based on evidence of new exposure or medical evidence showing the 

progression of an employment-related condition resulting in permanent impairment or increased 

impairment.9

 OWCP’s procedures further provide that if a claimant is seeking an increased 

schedule award due to increased impairment and/or additional exposure, but not contesting the 

decision or prior award, this should not be treated as a reconsideration request and OWCP should 

 6 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 

7 See B.K., 59 ECAB 228 (2007). 

8 J.F., Docket No. 13-112 (issued November 6, 2013). 

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993). 
6

develop the issue of entitlement to an additional award.10 As the evidence of record establishes 

that OWCP had accepted additional right upper extremity conditions following the July 23, 2015 

schedule award and the medical evidence reflects greater impairment, appellant’s July 13, 2016 

request for reconsideration should have been treated as a request for an additional schedule 

award. Accordingly, the Board finds that OWCP improperly denied appellant’s request for 

reconsideration and failed to issue an appropriate decision regarding appellant’s claim for an 

increased schedule award.11 On remand, OWCP should issue a de novo decision regarding 

appellant’s claim for an increased schedule award. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the August 4, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board. 

Issued: September 14, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 The Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) 

(February 2016). 

11 D.S., Docket No. 17-0407 (issued May 24, 2017); E.T., Docket No. 13-1691 (issued September 25, 2013).