United States Department of Labor

Employees’ Compensation Appeals Board

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P.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Carson City, NV, Employer

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Docket No. 18-0962

Issued: September 18, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 19, 2018 appellant filed a timely appeal from a September 19, 2017 nonmerit 

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

elapsed from the last merit decision, dated May 9, 2017, to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction to review the merits of the case.

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from September 19, 2017, the date of OWCP’s last decision, was Sunday, 

March 18, 2018. As the last day of the filing period fell on a weekend, appellant had until Monday, March 19, 2018 

to file an appeal. See 20 C.F.R. § 501.3(f)(2). Because using March 22, 2018, the date the appeal was received by 

the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the 

date of filing. See 20 C.F.R. § 501.3(f)(1). The date of the U.S. Postal Service postmark is March 19, 2018, rendering 

the appeal timely filed. Id.

2 5 U.S.C. § 8101 et seq.
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 January 5, 2015 appellant, then a 59-year-old distribution clerk, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right thumb that day when unloading a truck while 

in the performance of duty. OWCP accepted appellant’s claim for right thumb trigger finger and 

neck sprain. It also authorized a March 16, 2015 right thumb trigger finger release.3 On 

December 17, 2017 Dr. Jeffery L. Cummings, Board-certified in orthopedic surgery advised that 

appellant had reached maximum medical improvement as of December 11, 2015. He indicated 

that he did not perform permanent impairment examinations. 

On January 11, 2016 appellant filed a claim for a schedule award (Form CA-7).

In order to obtain an impairment rating for schedule award purposes, OWCP referred 

appellant to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and OWCP referral 

physician. In a March 8, 2017 report, utilizing the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 he found that 

appellant had zero percent upper extremity permanent impairment due to her accepted cervical 

sprain. With regard to appellant’s accepted right thumb condition, Dr. Swartz found two percent 

right upper extremity permanent impairment based on a diagnosis of trigger digit (thumb) under 

the diagnosis-based impairment (DBI) method of rating permanent impairment.5

In a May 4, 2017 report, OWCP’s district medical adviser (DMA) reviewed the relevant 

medical evidence, including Dr. Swartz’s March 8, 2017 second opinion evaluation, and concurred 

with the rating of two percent right upper extremity permanent impairment. 

By decision dated May 9, 2017, OWCP found that, relying upon the second opinion 

physician, Dr. Swartz and the DMA’s calculations, appellant had two percent permanent 

impairment of the right upper extremity.

On July 5, 2017 appellant requested reconsideration of OWCP’s May 9, 2017 decision

contending that she was entitled to additional schedule award compensation due to the number of 

years that she worked for the Federal Government. She argued that OWCP discriminated against 

her. Appellant argued that her right thumb was not functioning and she was only using her left 

hand and half of her right hand. She further argued that Dr. Swartz had not examined her thumb, 

but rather he just asked her questions. Appellant explained that she had no use of her right hand 

 

3 Dr. Jeffrey R. Cummings, an orthopedic surgeon, performed the surgery. 

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

5

Id. at Table 15-2, Digit Regional Grid, A.M.A., Guides 392. 
3

because of her faulty thumb and index finger. She also made several arguments about all the 

activities of daily living that she could no longer enjoy because of her injury.

By decision dated September 19, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of her claim.

LEGAL PRECEDENT

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

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 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.8 

A timely application for reconsideration, including all supporting documents, must 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.9 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.10

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). 

Preliminarily the Board finds that OWCP did not receive additional evidence of permanent 

impairment with appellant’s October 23, 2017 reconsideration request.11 The Board will therefore 

 

6 This section provides in pertinent part: the 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). 

7 20 C.F.R. § 10.607. 

8

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. 

9 20 C.F.R. § 10.606(b)(3). 

10 Id. at § 10.608(a), (b). 

11 See S.C., Docket No. 18-0992 (issued February 21, 2019); K.K., Docket No. 15-1684 (issued October 23, 2015) 

(When a claimant does not submit relevant evidence with respect to an increased schedule award, then OWCP may 

properly determine that appellant has filed an application for reconsideration of a schedule award decision.)
4

consider this a proper reconsideration request as opposed to a claim for an increased schedule 

award.

OWCP issued a decision dated May 9, 2017, finding that appellant was entitled to a 

schedule award for two percent permanent impairment of her right upper extremity, based on the 

accepted injury of a right trigger finger and neck sprain. On June 14, 2017 appellant requested 

reconsideration of OWCP’s May 9, 2017 decision. 

On reconsideration appellant 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. 

She argued in the June 14, 2017 request for reconsideration that OWCP had discriminated against 

her, that her right thumb was not functioning and she was only using her left hand and half of her 

right hand, that Dr. Swartz did not examine her thumb but just asked her questions, and that she 

could no longer perform activities of daily because of her injury. However, appellant did not 

present evidence to show discrimination. Furthermore, the issue of the use of her thumb is medical 

in nature and she would need to support these arguments with new medical evidence. The Board 

finds that these arguments do not show error by OWCP. As such, appellant 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). 

On reconsideration, appellant did not submit additional medical evidence demonstrating a 

greater impairment due to her accepted injuries. As she has not submitted relevant and pertinent 

new evidence on appeal, appellant is not entitled to a review of the merits of her claim based on 

the third requirement under section 10.606(b)(3). 

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. 

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). 
5

ORDER

IT IS HEREBY ORDERED THAT the September 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board