United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.H., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, 

Staten Island, NY, Employer

__________________________________________

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Docket No. 19-0847

Issued: September 13, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 11, 2019 appellant filed a timely appeal from a February 4, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated June 1, 2018, 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 additional evidence on appeal. 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 his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On September 4, 2014 appellant, then a 59-year-old supervisory facility operations 

specialist, filed a traumatic injury claim (Form CA-1) alleging that on August 27, 2014 he injured 

his back and both shoulders when he was attacked by a coworker while in the performance of duty. 

OWCP accepted the claim for bilateral shoulder impingement and a bilateral rotator cuff tear. 

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

10 percent permanent impairment of the left upper extremity and 5 percent permanent impairment 

of the right upper extremity. By decision dated June 16, 2017, an OWCP hearing representative 

vacated the February 13, 2017 decision and remanded the case for OWCP to apply the provisions 

of FECA Bulletin No. 17-06.3 

Following further development, by decision dated September 12, 2017, OWCP granted 

appellant a schedule award for 10 percent permanent impairment of the left upper extremity and 5

percent permanent impairment of the right upper extremity.4 By decision dated December 7, 2017, 

an OWCP hearing representative vacated the September 12, 2017 decision and again remanded 

the case for further development in accordance with FECA Bulletin No. 17-06.

On February 1, 2018 Dr. David H. Garelick, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), recommended a second opinion examination to determine the 

extent of appellant’s upper extremity impairment. 

OWCP referred appellant to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a 

second opinion examination. 

In an April 10, 2018 impairment evaluation, Dr. Sultan diagnosed post-traumatic bilateral 

shoulder derangement superimposed on preexisting bilateral degenerative changes of the shoulders 

treated with a bilateral arthroscopy. He measured range of motion (ROM) of the bilateral 

shoulders, noting that he had obtained three separate measurements. Dr. Sultan found that 

appellant had six percent permanent impairment of each upper extremity due to his rotator cuff 

tear according to Table 15-5 on page 403 of the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He indicated that he had 

based his ROM measurements on the protocols of the fifth edition of the A.M.A., Guides.

 

3 FECA Bulletin No. 17-06 (issued May 8, 2017).

4 OWCP initially issued the decision on September 6, 2017, but reissued the decision on September 12, 2017 as it 

had failed to include the relevant medical evidence with the decision. 

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

On May 18, 2018 Dr. Garelick concurred with Dr. Sultan’s finding of six percent 

permanent impairment of each upper extremity using the diagnosis-based impairment method. He 

found, however, that appellant had nine percent permanent impairment of each upper extremity 

due to loss of motion pursuant to Table 15-34 on page 475 of the A.M.A., Guides. Dr. Garelick 

noted that appellant had previously received a schedule award for 10 percent left upper extremity 

and 5 percent right upper extremity for his shoulder condition, and thus was entitled to an 

additional award for 4 percent permanent impairment of the right upper extremity.

By decision dated June 1, 2018, OWCP granted appellant a schedule award for an 

additional four percent permanent impairment of the right upper extremity. The period of the 

award ran for 12.48 weeks from April 10 to July 6, 2018.

In a letter postmarked July 11, 2018, appellant requested a telephonic hearing before an 

OWCP hearing representative. 

By decision dated August 14, 2018, OWCP denied appellant’s request for a telephonic 

hearing as untimely under 5 U.S.C. § 8124(b).6 

On October 1, 2018 appellant requested reconsideration. In a separate letter of even date, 

he again requested a telephonic hearing before an OWCP hearing representative. In an 

accompanying statement, he explained that he had recorded the examination with Dr. Sultan and 

obtained a professional transcription which established that Dr. Sultan had failed to obtain three

ROM measurements of the shoulder. Appellant also contended that Dr. Sultan indicated that he 

had used the fifth edition of the A.M.A., Guides. He asserted that Dr. Sultan had not included all 

of his physical complaints in his report, citing the audio recording. Appellant noted that he did not 

treat patients. He submitted copies of Dr. Sultan’s examination and Dr. Garelick’s May 18, 2018 

report.

On October 26, 2018 OWCP informed appellant that it had previously denied his request 

for a telephonic hearing as untimely and advised him to follow the appeal rights accompanying 

the June 1, 2018 decision. 

By decision dated February 4, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of his claim under 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 or her own motion or on application.7

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

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

 

6 OWCP initially denied appellant’s request for a telephonic hearing on August 3, 2018; however, it issued a 

corrected copy of its decision on August 14, 2018.

7 5 U.S.C. § 8128(a).
4

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

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

of OWCP decision for which review is sought.9 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.10 If the request is timely, but fails to meet at least one 

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

reopening the case for review on the merits.11

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).

By decision dated June 1, 2018, OWCP granted appellant a schedule award for an 

additional four percent permanent impairment of the right upper extremity. On October 1, 2018 

appellant timely requested reconsideration. Initially, the Board finds that OWCP properly 

considered his correspondence as a request for reconsideration and not as claim for an increased 

schedule award.12 The underlying issue on reconsideration is whether the medical evidence 

demonstrates a greater permanent impairment. Thus, the Board must determine whether appellant 

presented sufficient evidence or argument regarding the extent of permanent impairment to 

warrant a merit review pursuant to 5 U.S.C. § 8128(a).13

The Board finds that appellant has not alleged or demonstrated that OWCP erroneously 

applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant 

legal argument not previously considered. He contended that Dr. Sultan failed to obtain three 

ROM measurements as indicated in his report, noting that he had recorded the examination. 

Appellant further asserted that Dr. Sultan had referenced the fifth edition of the A.M.A., Guides

in reaching his impairment rating. While Dr. Sultan indicated that he had used the fifth edition of 

the A.M.A., Guides in measuring ROM, he further indicated that he had obtained three separate 

ROM measurements. Dr. Garelick, the DMA, reviewed the measurements obtained by Dr. Sultan 

and applied the sixth edition of the A.M.A., Guides in rating appellant’s impairment using the 

 

8 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

9

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 its 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.

10 Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).

11 Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

12 B.W., Docket No. 18-1415 (issued March 8, 2019).

13 S.W., Docket No. 18-1261 (issued February 22, 2019).
5

ROM method. Thus, the Board finds that appellant has not advanced a relevant legal argument 

not previously considered by OWCP.14 

Appellant further asserted that Dr. Sultan failed to include all his physical complaints in 

his report. His argument, however, is not relevant to the underlying issue of his entitlement to an 

additional schedule award, which is a medical issue that must be addressed by relevant and 

pertinent new medical evidence.15 Consequently, appellant is not entitled to a review of the merits 

of his claim based on the first and second above-noted requirements under section 10.606(b)(3).16

The Board further finds that appellant has not provided any relevant and pertinent new 

evidence not previously considered relative to the issue of whether he is entitled to a greater 

schedule award. Appellant submitted copies of the reports of Dr. Sultan and Dr. Garelick, but this 

duplicated evidence already of record and thus failed to constitute relevant and pertinent new 

evidence.17 As he had not provided relevant and pertinent new evidence, he is not entitled to a 

merit review based on the third requirement under section 10.606(b)(3).18

The Board, accordingly, finds that appellant has not met 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.19

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).

 

14 P.W., Docket No. 17-1911 (issued June 6, 2018).

15 T.W., Docket No. 18-1088 (issued February 14, 2019).

16 C.B., Docket No. 18-1108 (issued January 22, 2019).

17 See supra note 15.

18 R.L., Docket No. 18-0175 (issued September 5, 2018).

19 See L.A., Docket No. 18-1226 (issue December 28, 2018) (when an application for reconsideration does not meet 

at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits).
6

ORDER

IT IS HEREBY ORDERED THAT the February 4, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 13, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board