United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, OFFICE OF FEDERAL 

ASSISTANCE MANAGEMENT, Rockville, MD, 

Employer

__________________________________________

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Docket No. 19-1558

Issued: April 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On July 15, 2019 appellant filed a timely appeal from a February 28, 2019 nonmerit 

decision of the Office of Workers’ Compensation Program (OWCP).1 As more than 180 days 

elapsed from OWCP’s last merit decision, dated January 2, 2019, to the filing of this appeal, 

 

1 The Board notes that, during the pendency of this appeal, OWCP issued an August19, 2019 decision, which 

denied modification of the January 2, 2019 schedule award decision that is the subject of the current appeal. The 

Board and OWCP may not simultaneously exercise jurisdiction over the same issue in a case on appeal. 20 C.F.R. 

§§ 501.2(c)(3), 10.626. See S.C.,Docket No. 18-0517 (issued February 25, 2020); ArloniaB. Taylor, 44 ECAB 591 

(1993); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s August 19, 2019 decision is set aside as 

null and void.
2

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.3

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 August 3, 2016 appellant, then a 55-year-old grants management specialist, filed an 

occupational disease claim (Form CA-2) alleging that factors of her federal employment, including 

typing and casing of letters, caused trigger finger and de Quervain tendinitis of the left hand. She 

first realized her condition and that it was caused or aggravated by her employment on 

May 11, 2015. Appellant retired from the employing establishment effective January 1, 2016.4

On October 4, 2016 OWCP accepted appellant’s claim for left index trigger finger. On 

December 8, 2016 appellant underwent an OWCP authorized left carpal tunnel release, left index 

trigger finger release, and left wrist first dorsal extensor compartment release, which was 

performed by Dr. Jonathan Pribaz, a Board-certified orthopedic surgeon. On January 17, 2018 she

filed a claim for a schedule award (Form CA-7). 

In a December 21, 2017 report, Dr. Angela Jones, a Board-certified orthopedic surgeon 

and OWCP second opinion physician, reviewed a statement of accepted facts (SOAF)5 and the 

medical file and noted examination findings of the left trigger finger, which included stiffness and 

soreness, and decreased range of motion. Regarding appellant’s current claim, Dr. Jones opined 

that appellant had reached maximum medical improvement (MMI) on September 1, 2017, a year 

following her surgery. She indicated that her impairment evaluation was based on the singular 

diagnosis of trigger digit. Dr. Jones opined, under the sixth edition of the American Medical 

 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that,following the February28, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.

4 Under OWCP File No. xxxxxx076, date of injury July 14, 1995, appellant has an accepted occupational disease 

claim for bilateral carpal tunnel, sprain of the radial collateral ligament of the bilateral elbow and forearm, and sprain 

of the acromioclavicular bilateral shoulder and upper arm. OWCP File No. xxxxxx076 was administratively combined 

with OWCP File No. xxxxxx433 which served as the master case file. Under OWCP File No. xxxxxx433, date of 

injury of September 15, 1995, appellant has an accepted occupational claim for bilateral carpal tunnel, sprain of the 

radial collateral ligament of the bilateral elbow and forearm, sprain of the acromioclavicular bilateral shoulder and 

upper arm, and unspecified mononeuritis of bilateral upper limb. Appellant has received schedule awards for a total 

25 percent left upper extremity and total 25 percent right upper extremity impairment under this master file. 

5 The SOAF reviewed by Dr.Jones is not of record.
3

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

6

the range of 

motion (ROM) methodology for an index finger impairment involving each of the joints was used, 

as it resulted in the higher impairment rating over the diagnosis-based impairment (DBI) 

methodology. She provided her calculations, cited to tables within the A.M.A, Guides, and opined 

that appellant had 14 percent combined left digit impairment which converted to 3 percent upper 

extremity impairment utilizing the ROM methodology.

In a January 5, 2018 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon 

serving as a district medical adviser (DMA), reviewed a SOAF dated December 6, 2017,

7

the 

medical file and Dr. Jones’ December 21, 2017 report. Applying Dr. Jones’ examination findings

to the A.M.A, Guides, the DMA calculated eight percent impairment of the index digit for residual 

problems status post release of trigger digit which converted to one percent upper extremity 

impairment under the DBI methodology. Under the ROM methodology, the DMA calculated 20 

percent impairment of the index digit which converted to 4 percent upper extremity impairment. 

He indicated that as the ROM methodology produced the higher impairment rating, it would be 

used. The DMA opined that appellant reached MMI December 21, 2017, when she was evaluated 

by Dr. Jones. He further explained the differences between his impairment calculation and that of

Dr. Jones. The DMA indicated that as appellant was previously awarded 45 percent permanent 

impairment of the left upper extremity and was entitled to an additional 4 percent impairment for 

the index digit, she had a combined 49 percent total left upper extremity impairment. 

On March 8, 2018 OWCP requested a clarification report from the DMA regarding his 

comments that OWCP previously awarded appellant a total of 45 percent permanent impairment 

to the left upper extremity. It advised that appellant was previously awarded a total of 25 percent 

permanent impairment for the left upper extremity. An attached amended March 8, 2018 SOAF 

noted the history of appellant’s employment injuries. It indicated that in OWCP File No. 

xxxxxx433, appellant had been awarded 20 percent permanent impairment for the left upper 

extremity and 20 percent permanent impairment for the right upper extremity with subsequent 

awards for an additional 5 percent impairment for the right upper extremity and 5 percent 

impairment for the left upper extremity. 

In a March 10, 2018 supplemental report, the DMA reviewed the amended March 8, 2018 

SOAF. He opined that, as appellant previously received 25 percent permanent impairment to the 

left upper extremity and was entitled to an increase impairment of 4 percent, she had 29 percent 

total left upper extremity permanent impairment.

By decision dated January 2, 2019, OWCP granted appellant an additional schedule award 

for four percent permanent impairment of the left upper extremity affording the weight of the 

medical evidence to the DMA. It indicated that this represented 49 percent total impairment minus 

45 percent impairment previously awarded. The award ran for 1.84 weeks for the period 

December 21, 2017 through January 2, 2018.

 

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

7 The SOAF sent to Dr.Harris is not in the current record. 
4

On January 7, 2019 appellant requested reconsideration. In a January 7, 2019 letter, she 

contended that Dr. Jones’ report did not address all her permanent conditions concerning her left 

upper extremity. Appellant indicated that Dr. David Weiss, a Board-certified orthopedic surgeon 

and osteopath, provided a comprehensive report of her permanent medical conditions in his 

August 21, 2018 medical report.

In a January 22, 2019 letter, appellant requested that OWCP expand the acceptance of her 

case to include all the medical conditions identified in Dr. Weiss’ August 21, 2018 report. She 

addressed several issues she had concerning the case development of OWCP File No. xxxxxx433. 

Appellant also indicated that her carpal tunnel surgery had failed and that she needed further 

medical treatment.

By decision dated February 28, 2019, OWCP denied further merit review of appellant’s 

claim. It found that her request for reconsideration neither raised substantive legal questions nor 

included new and relevant evidence.

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 compensation, at any time, on his or her own motion or on application.8

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.9

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.11 If the request is timely, but fails to meet at least one of the 

 

8

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

9

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

No. 08-1569 (issued December 9, 2008).

10 Id. at § 10.607(a). The one-year period begins on the next day after the date of the originally contested decision.

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, 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.

11 Id. at § 10.608(a); see D.L., Docket No. 18-0449 (issued October 23, 2019); see also M.S., 59 ECAB 231 (2007).
5

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.12

ANALYSIS

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

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

In her January 7, 2019 reconsideration request, appellant contended that Dr. Jones’ report 

failed to address all of her permanent medical conditions concerning her left upper extremity. She 

also requested, in a January 22, 2019 letter, that OWCP evaluate her left upper extremity 

permanent impairment including all the medical conditions identified in Dr. Weiss’ August 21, 

2018 medical report. As appellant seeks to have all of her conditions reviewed in the determination 

of the schedule award, that the Board finds that OWCP should combine the current File No. 

xxxxxx331 with File No. xxxxxx433 so that all her left upper extremity accepted conditions are 

considered in her schedule award rating, the Board finds that this is a relevant legal argument made 

for the first time on reconsideration, under criteria number two under 20 C.F.R. § 10.606(b)(3).13

OWCP’s procedures provide that cases should be administratively combined when correct 

adjudication of the issues depends on frequent cross-referencing between files.14 For example, if 

a new injury case is reported for an employee who previously filed an injury claim for a similar 

condition or the same part of the body, doubling is required.

Appellant requested that OWCP take into account all of the accepted conditions of her left 

upper extremity, and, as such OWCP should combine the current File No. xxxxxx331 with File 

No. xxxxxx433 (which included File No. xxxxxx076). As appellant advanced a legal argument 

relevant to her claim which had not previously been considered by OWCP, such argument warrants 

further consideration by a merit review of her claim.15

The Board will therefore remand the case to OWCP to combine this claim with Master File 

No. xxxxxx433. Following this and such other further development as it deems necessary, OWCP 

shall issue a de novo decision. 

CONCLUSION

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

 

12 Id. at § 10.608(b); G.D., Docket No. 19-0815 (issued January 16, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

13 See L.S., Docket No. 18-0858 (issued November 19, 2019). 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) 

(February 2000); J.C., Docket No. 18-0649 (issued August 9, 2019).

15 See Q.M., Docket No. 18-0345 (issued May 17, 2019); D.M., Docket No. 16-1754 (issued January 10, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the February 28, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: April 16, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board