United States Department of Labor

Employees’ Compensation Appeals Board

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T.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cheyenne, WY, Employer

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Docket No. 18-1088

Issued: February 14, 2019

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 May 4, 2018 appellant filed a timely appeal from a December 12, 2017 nonmerit 

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

elapsed from the last merit decision, dated October 31, 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 this 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).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the prior decision of the Board are incorporated herein by reference. The relevant 

facts are as follows. 

On January 20, 2016 appellant, then a 62-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 19, 2016 he strained his right shoulder when he lifted 

his arm to place mail in a mailbox. OWCP accepted the claim on February 17, 2016 for right 

shoulder rotator cuff tear.

3

 Subsequently, it authorized appellant’s right shoulder arthroscopic 

surgery, which was performed on February 23, 2016. 

In an August 2, 2016 report, Dr. James E. Rafferty, a treating physician Board-certified in 

occupational medicine, noted that appellant was employed as a city mail carrier and that he had 

previously undergone arthroscopic surgery to repair his right shoulder rotator cuff. He reviewed 

appellant’s medical history, detailed examination findings, and noted that appellant had a 

permanent impairment of his right shoulder based on his diagnosis of right rotator cuff tear. 

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

Permanent Impairment4(A.M.A., Guides), and citing to the applicable tables and figures,

Dr. Rafferty calculated four percent permanent impairment of appellant’s right upper extremity.

On August 26, 2016 appellant filed a claim for a schedule award (Form CA-7). 

On October 31, 2016 Dr. Morley Slutsky, a Board-certified occupational medicine 

physician and district medical adviser (DMA), reviewed medical records including Dr. Rafferty’s 

report. He noted that appellant had previously received a schedule award for 23 percent right 

upper extremity permanent impairment.5 Dr. Slutsky found that the date of maximum medical 

improvement (MMI) to be the date of Dr. Rafferty’s report, August 2, 2016. Using the A.M.A., 

Guides, he found five percent permanent impairment of the right upper extremity based on a 

diagnosis of right shoulder partial thickness tear, with residual dysfunction.

6

 

 

2 Docket No. 17-0394 (issued June 1, 2017). 

3 On June 14, 2004 appellant, then a 50-year-old modified letter carrier, filed an occupational disease claim (Form 

CA-2) alleging that on June 2, 2004 he first realized that his right shoulder pain was caused by his repetitive work 

duties. OWCP assigned that claim OWCP File No. xxxxxx252 and on July 26, 2004 accepted the claim for right 

shoulder cuff tear and right shoulder osteoarthritis. By decision dated June 7, 2005, it granted appellant a schedule 

award for 23 percent permanent impairment of the right upper extremity. 

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

5 The record contains an impairment rating by Dr. Pete M. Kuhn, a Board-certified orthopedic surgeon, under 

OWCP File No. xxxxxx252. He used the fifth edition of the A.M.A., Guides to calculate 12 percent right upper 

extremity permanent impairment using range of motion findings. 

6 A.M.A., Guides 402, Table 15-2.
3

In an addendum dated November 8, 2016, Dr. Slutsky noted that appellant had previously 

been granted a schedule award for 23 percent permanent impairment, of which 12 percent was for 

permanent impairment of the right shoulder. 

By decision dated November 16, 2016, OWCP noted that appellant had previously been 

granted a schedule award for 23 percent permanent impairment of the right upper extremity. It 

found that the medical evidence he submitted was insufficient to warrant an increased schedule 

award. 

On December 12, 2016 appellant appealed to the Board. By decision dated June 1, 2017, 

the Board set aside OWCP’s November 16, 2016 decision denying his claim for an additional 

schedule award and remanded the case. The Board noted that the record before it was incomplete 

as it did not contain OWCP’s decision granting appellant 23 percent permanent impairment for the 

right upper extremity or all of the medical evidence used in calculation of the impairment rating. 

The Board requested that OWCP combine his current claim with his previously accepted claim 

under OWCP File No. xxxxxx252 and conduct further development as deemed necessary.

7

Following the Board’s remand, OWCP referred appellant for a second opinion evaluation 

with Dr. Mark Rangitsch, a Board-certified orthopedic surgeon, to determine whether appellant 

was entitled to an increased schedule award. In a report dated August 21, 2017, Dr. Rangitsch, 

based upon a review of medical evidence, a statement of accepted facts, and physical examination, 

diagnosed a right rotator cuff tear. Using the sixth edition of the A.M.A., Guides he determined 

that appellant had six percent right upper extremity permanent impairment. 

OWCP referred the evidence of record to the DMA, Dr. Slutsky, who reviewed the relevant 

medical evidence on October 7, 2017 and opined that appellant had 12 percent right upper 

extremity permanent impairment. Dr. Slutsky found that the date of MMI was August 21, 2017, 

the date of Dr. Rangitsch’s report. 

By decision dated October 31 2017, OWCP denied modification of its prior decision, 

finding that the evidence submitted was insufficient to warrant an increased schedule award. 

On November 13, 2017 appellant requested reconsideration. He contended that OWCP 

erred in consolidating OWCP File Nos. xxxxxx252 and xxxxxx516 as they were separate cases

and he was entitled to schedule awards for each claim. In support of his claim appellant 

resubmitted Dr. Rangitsch’s August 21, 2017 report and Dr. Slutsky’s October 7, 2017 report. 

By decision dated December 12, 2017, OWCP denied merit review of appellant’s claim. 

It found that he submitted no new evidence or relevant argument in support of his request for 

reconsideration. 

 

7 Supra note 2.
4

LEGAL PRECEDENT

Section 8128 (a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.8 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.9 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.10 

To require OWCP to reopen a case for merit review, 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.11 When a timely request for reconsideration fails to meet one of the above standards, 

OWCP will deny the application for review without reopening the case for a review on the merits.12

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).

In his timely request for reconsideration, appellant did not establish that OWCP 

erroneously applied or interpreted a specific point of law. He also did not advance a new and 

relevant legal argument. Appellant asserts that he was entitled to a schedule award for both of his 

individual workers’ compensation claims and that the claims should not have been combined. The 

underlying issue in this case is whether he has met his burden of proof to establish entitlement to 

an increased schedule award for right upper extremity permanent impairment. That is a medical 

issue which must be addressed by relevant and pertinent new medical evidence.13 

The Board finds that, although appellant has made a new legal argument on appeal, it has 

no reasonable color of validity as it has no bearing on the underlying issue.14 Appellant’s request 

for reconsideration, therefore, 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 by 

 

8 5 U.S.C. § 8128(a). 

9 20 C.F.R. § 10.607.

10 Id. at § 10.607(a). 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. Id. at Chapter 2.1602.4b.

11 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 

12 Id. at § 10.608(b).

13 See Bobbie F. Cowart, 55 ECAB 746 (2004).

14 A.M., Docket No. 18-1033 (issued January 8, 2019); Michael E. Smith, 50 ECAB 313 (1999).
5

OWCP. Consequently, he was not entitled to a review of the merits based on the first and second 

above-noted requirements under 20 C.F.R. § 10.606(b)(3).

With regard to the third requirement, in support of his reconsideration request, appellant 

resubmitted Dr. Rangitsch’s August 21, 2017 report and Dr. Slutsky’s October 7, 2017 report. The 

Board finds that, as these reports were duplicative of evidence of record and previously considered 

by OWCP, they did not constitute relevant and pertinent new evidence.15 A claimant may obtain 

a merit review of an OWCP decision by submitting relevant and pertinent new evidence, however, 

in this case, appellant failed to submit relevant and pertinent new medical evidence addressing the

underlying issue of increased permanent impairment of the right upper extremity.

16

 Therefore, the 

Board finds that he was not entitled to a review of the merits based on the third requirement under 

20 C.F.R. § 10.606(b)(3).

The Board finds that, as appellant did not satisfy any of the three requirements under 20 

C.F.R. § 10.606(b)(3) to warrant further merit review of his claim, OWCP properly denied his 

request for reconsideration.

CONCLUSION

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).

 

15 Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a case. See A.R., Docket No. 17-1504 (issued May 25, 2018). 

16 M.H., Docket No. 13-2051 (issued February 21, 2014).
6

ORDER

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

Programs dated December 12, 2017 is affirmed.

Issued: February 14, 2019

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