United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.R., Appellant

and

U.S. POSTAL SERVICE, SOUTH SUBURBAN 

PROCESSING & DISTRIBUTION CENTER, 

Bedford Park, IL, Employer

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Docket No. 18-1225

Issued: February 7, 2019

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 31, 2018 appellant, through counsel, filed a timely appeal from a May 7, 2018 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).

2

 Pursuant to the 

 

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 The Board notes that it would have had jurisdiction over a March 29, 2018 merit decision of OWCP which found 

that appellant’s schedule award claim should be denied based upon an apparent rescission of previously accepted 

conditions in the claim. However, counsel has only sought appeal from the May 7, 2018 nonmerit decision. Thus, 

the Board will not review the March 29, 2018 OWCP decision. See 20 C.F.R. § 501.3. The propriety of the rescission 

and denial of a schedule award can be addressed by filing a request for reconsideration to OWCP within one year of 

the March 29, 2018 decision.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

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 January 22, 2012 appellant, then a 55-year-old laborer custodian, filed a traumatic 

injury claim (Form CA-1) for a right thumb (trigger finger) condition she allegedly sustained in 

the performance of duty on July 6, 2011. She explained that she attended therapy three days a 

week and that her injury was due to constant use of therapeutic exercise machines while in therapy. 

On the reverse side of the Form CA-1, the employing establishment controverted appellant’s claim 

noting that the injury did not occur on premises and she had not submitted medical evidence to 

support the claimed injury. It further noted that appellant last worked on April 22, 2009.4

In a report dated March 8, 2012, Dr. Mary K. Morrell, a Board-certified orthopedic 

surgeon, diagnosed right thumb trigger finger “which occurred at work on [July 6, 2011].” She 

further explained that the injury “[occurred] over time at work and then was aggravated while 

[appellant] was in [p]hysical [t]herapy.”

By decision dated April 9, 2012, OWCP accepted appellant’s July 6, 2011 traumatic injury 

claim for an aggravation of right trigger finger (acquired).

5

On January 9, 2013 OWCP noted that it had accepted an aggravation of acquired right 

trigger finger due to the use of exercise machines in therapy. It advised that appellant was in 

therapy for her accepted back condition under File No. xxxxxx262.

On June 27, 2016 appellant filed a claim for a schedule award (Form CA-7). In support of 

her claim she submitted an August 17, 2016 report of permanent impairment from Dr. Neil Allen, 

a physician Board-certified in neurology and internal medicine. Dr. Allen found that pursuant to 

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

Impairment, appellant had two percent permanent impairment of her right upper extremity.

 

3 5 U.S.C. § 8101 et seq.

4 Appellant has an accepted claim for a June 7, 2004 traumatic injury involving the thoracic and lumbar spines, 

adjudicated under OWCP File No. xxxxxx262. She also has an accepted occupational disease claim, also involving 

the thoracic and lumbar spines, which injury arose on or about February 6, 2007, adjudicated under OWCP File No. 

xxxxxx618.

5 OWCP also retroactively authorized appellant’s March 9, 2012 surgery. 
3

By decision dated October 21, 2016, OWCP denied appellant’s schedule award claim as 

she had not submitted medical evidence sufficient to establish permanent impairment of a 

scheduled member or function of the body. 

On October 24, 2016 appellant, through counsel, requested a telephonic hearing before an

OWCP hearing representative and submitted additional medical evidence. 

Following a preliminary review, by decision dated March 8, 2017, an OWCP hearing 

representative vacated the October 21, 2016 decision. She noted that OWCP had accepted 

appellant’s claim based on the March 8, 2012 report from Dr. Morrell. The hearing representative 

found that the record failed to establish that she had attended physical therapy. She noted that 

appellant had not responded to a March 5, 2012 OWCP development letter which inquired into the 

factual allegations of the claim. The hearing representative advised that a review of the case 

records for appellant’s other accepted employment injuries, under OWCP File Nos. xxxxxx262 

and xxxxxx618, did not support that she was in physical therapy in 2011. She found that as 

appellant had not worked since July 23, 2010, she had not experienced a traumatic injury on 

July 6, 2011. The hearing representative remanded the case for OWCP to determine, prior to 

adjudicating the schedule award issue, whether appellant was claiming a traumatic injury on 

June 6, 2011, an occupational disease, or a consequential injury under a separate file number. She 

further instructed OWCP to obtain a detailed statement from appellant regarding her activities in 

physical therapy, why she selected June 6, 2011 as the date of injury, and whether she had received 

physical therapy for a nonemployment-related condition. The hearing representative also advised 

OWCP to request that appellant submit copies of physical therapy reports.

OWCP, in an April 10, 2017 development letter, requested additional information from 

appellant in order to determine whether she had factually established her claim. 

By decision dated July 18, 2017, OWCP denied appellant’s schedule award claim. It found 

that it could not adjudicate the issue of whether she sustained an employment-related permanent 

impairment as she had not responded to its request for additional information regarding whether 

she sustained an employment injury, as alleged.

Appellant, through counsel, on August 7, 2017 requested a telephonic hearing before an 

OWCP hearing representative. 

During the telephonic hearing, held on January 12, 2018, counsel questioned why OWCP 

denied her schedule award claim before issuing a formal adjudication of her claim. Appellant 

advised that she was in therapy on July 6, 2011 and was not working. She explained that she had 

used machines in therapy for a month before experiencing right hand pain. 

By decision dated March 29, 2018, OWCP’s hearing representative affirmed the July 18, 

2017 decision denying a schedule award. She determined that appellant had not demonstrated that 

the condition for which she claimed a schedule award was causally related to employment factors, 

noting that she was not working at the time of the alleged incident and did not support her 

allegation that she was using exercise equipment while undergoing physical therapy for another 

claim.
4

On April 25, 2018 appellant, through counsel, requested reconsideration and submitted an 

August 17, 2016 impairment evaluation. 

By decision dated May 7, 2018, OWCP denied appellant’s request for reconsideration 

because she had not raised a relevant legal argument or submitted new and relevant evidence 

sufficient to warrant reopening her case for further merit review under section 8128(a). 

LEGAL PRECEDENT

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

will review an award for or against compensation, either under its own authority or on application 

by a claimant.6 Section 10.608(b) of OWCP’s regulations provide that a timely request for 

reconsideration may be granted if OWCP determines that the claimant has presented evidence 

and/or argument that meet at least one of the standards described in section 10.606(b)(3).7 This 

section provides that the application for reconsideration must be submitted in writing and set forth 

arguments and contain evidence that either: (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.8 Section 10.608(b) provides that when a request for reconsideration is 

timely, but fails to meet at least one of these three requirements, OWCP will deny the application 

for reconsideration without reopening the case for a review on the merits.9

ANALYSIS

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

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

Appellant disagreed with OWCP’s denial of her claim for a schedule award. On April 25, 

2018 appellant, through counsel, requested reconsideration. Appellant did not allege that OWCP 

erroneously applied or interpreted a specific point of law or advance a legal argument not 

previously considered by OWCP. Thus, the Board finds that 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 Board further finds that appellant has not submitted relevant or pertinent new evidence 

not previously considered with her April 25, 2018 request for reconsideration. The underlying 

issue in this case involves whether appellant has an accepted condition to her right upper extremity 

due to an employment injury upon which she can claim a schedule award. On reconsideration 

appellant resubmitted a copy of Dr. Allen’s August 17, 2016 report of permanent impairment. The 

Board notes that this medical report was previously of record. The Board has held that the 

 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.608(a).

 

8

Id. at § 10.606(b)(3).

9

Id. at § 10.608(b).
5

submission of evidence which repeats or duplicates evidence already in the case record does not 

constitute a basis for reopening a case.10 

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

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.11

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 May 7, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 7, 2019

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

 

10 See L.R., Docket No. 18-0400 (issued August 24, 2018).

11 See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,

Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); 

(when an application for reconsideration does not meet at least one of the three requirements enumerated under section 

10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the merits).