United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

Rosebud, SD, Employer

__________________________________________

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Docket No. 18-1259

Issued: January 25, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 17, 2018 appellant filed a timely appeal from a May 9, 2018 nonmerit decision of 

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

from OWCP’s most recent merit decision, dated April 10, 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.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted evidence with her appeal to the Board. 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.
2

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 May 1, 2015 appellant, then a 64-year-old medical records technician, filed an 

occupational disease claim (Form CA-2) alleging that her federal work duties, which she had 

performed for over 20 years, had caused bilateral rotator cuff conditions. She stopped work on 

May 12, 2015 and returned to modified sedentary duties on June 1, 2015. Dr. Stuart Fromm, a 

Board-certified orthopedic surgeon, performed arthroscopic repair of a full-thickness rotator cuff 

tear on the right on May 14, 2015. 

Following an initial denial on September 2, 2015, on October 21, 2015 OWCP accepted

appellant’s claim for complete rotator cuff tears of the right and left shoulders. 

On June 22, 2016 appellant filed a claim for a schedule award (Form CA-7). By 

development letter dated July 5, 2016, OWCP informed her of the evidence needed to establish 

her schedule award claim. It afforded appellant 30 days to submit the necessary evidence. No 

additional evidence was received.

By decisions dated August 12 and November 3, 2016, OWCP denied appellant’s schedule 

award claim because she had not submitted competent medical evidence to indicate that she had a 

permanent impairment. 

Appellant thereafter requested reconsideration on November 30, 2016 and submitted an 

October 19, 2016 report in which Dr. Trevor R. Anderson, a Board-certified physiatrist, advised 

that based on limited right shoulder range of motion, in accordance with the sixth edition of the 

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

Guides),3appellant had 13 percent right upper extremity permanent impairment. In a February 21, 

2017 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon and OWCP medical 

adviser, reviewed Dr. Anderson’s report and advised that he had correctly assessed appellant’s 

right upper extremity permanent impairment. Dr. Katz concurred that appellant had 13 percent 

permanent impairment of the right upper extremity, with October 19, 2016 as the date of maximum 

medical improvement. 

By decision dated April 10, 2017, OWCP granted appellant a schedule award for 13 

percent permanent impairment of the right upper extremity, for a total of 40.56 weeks. The award 

ran from October 19, 2016 to July 29, 2017. 

On July 17, 2017 appellant requested reconsideration. She generally maintained that she 

was entitled to a greater award. 

 

3 A.M.A., Guides (6th ed. 2009).
3

By decision dated September 18, 2017, OWCP denied appellant’s July 17, 2017 request 

for reconsideration without reviewing the merits of her claim. It found that she neither raised 

substantive legal questions nor submitted new and relevant evidence.

On December 26, 2017 appellant again requested reconsideration. Medical evidence 

submitted in support of her reconsideration request included a November 19, 2017 emergency 

department report in which Angela Frederick, a nurse practitioner, described a complaint of right 

arm pain and numbness. Ms. Frederick diagnosed ulnar neuropathy of the right arm. In a 

November 27, 2017 treatment note, Dr. Fromm noted appellant’s complaint of right arm and hand 

numbness. He recommended electrodiagnostic testing including an electromyography and nerve 

conduction velocity (EMG/NCV) studies. Dr. Anderson performed right upper extremity 

EMG/NCV studies on December 28, 2017. He concluded that the study was consistent with 

median neuropathy at the wrist. Dr. Aaron D. Dykstra, a Board-certified orthopedic surgeon, saw 

appellant on January 15, 2018 for a complaint of bilateral hand pain. He noted the EMG/NCV

findings and diagnosed primary osteoarthritis of the left first carpometacarpal joint and bilateral 

carpal tunnel syndrome. Dr. Dykstra recommended a left upper extremity EMG/NCV. 

A January 15, 2018 magnetic resonance imaging (MRI) scan of the left shoulder 

demonstrated a full-thickness rotator cuff tear and significant degenerative changes. Dr. Fromm 

reviewed the MRI scan that day. He recommended arthroscopic rotator cuff repair. On 

February 7, 2018 Dr. Fromm performed left shoulder arthroscopic rotator cuff repair. 

By letter dated March 16, 2018, appellant noted the recent left shoulder surgery. She also 

indicated that she had been diagnosed with bilateral carpal tunnel syndrome. 

By decision dated May 9, 2018, OWCP denied appellant’s December 17, 2017 request for 

reconsideration without reviewing the merits of her claim. It found that she neither raised 

substantive legal questions nor included new and relevant evidence with regard to the extent of her 

right shoulder impairment or the April 10, 2017 schedule award decision. 

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 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.6

 

4 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.607.

6

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 (iFECS). Id. at Chapter 2.1602.4b.
4

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.7 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.8

ANALYSIS

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).

The Board first finds that OWCP properly considered appellant’s correspondence as a 

request for reconsideration and not as a claim for an increased schedule award as appellant did not 

claim a new award based on a new rating of permanent impairment for her right shoulder.9 The 

issue presented on appeal, therefore, 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.

With her December 26, 2017 reconsideration request, appellant did not establish that 

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

legal argument not previously considered. Thus, she was 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).10

While appellant submitted new medical evidence, none of it pertained to her right shoulder, 

for which she received a schedule award on April 10, 2017. Rather, the medical evidence 

submitted pertained to her accepted left shoulder rotator cuff tear and a new diagnosis of bilateral 

carpal tunnel syndrome, which had not been accepted by OWCP. The underlying issue is whether 

appellant has submitted sufficient evidence to establish entitlement to an increased schedule award 

for her right shoulder impairment. A claimant may be entitled to a merit review by submitting 

relevant and pertinent new evidence, but in this case appellant did not submit relevant and pertinent 

new evidence with her reconsideration request.11

The Board accordingly finds that appellant has not met any of the requirements of 

20 C.F.R. § 10.606(b)(3) and thus OWCP properly denied merit review. 

 

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

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

10 See J.B., Docket No. 17-0628 (issued June 28, 2017).

11 See G.T., Docket No. 18-0158 (issued May 11, 2018).
5

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 employment-related 

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 May 9, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 25, 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