United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Baltimore, MD, Employer

__________________________________________

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Docket No. 19-0592

Issued: September 6, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 23, 2019 appellant, through counsel, filed a timely appeal from an October 17, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision on the issue of this case, dated 

October 23, 2017, to the filing of this appeal, pursuant to the Federal Employees’ Compensation 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of 

this issue.

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 September 10, 2013 appellant, then a 41-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on June 29, 2013 she felt and heard a “pop” followed by 

immediate pain in her neck, back, and shoulder when she lifted a box weighing 20 pounds and 

placed it under a cart while in the performance of duty. OWCP accepted the claim for displacement 

of cervical intervertebral disc without myelopathy and sprain of ligaments of cervical spine. 

Appellant stopped work on June 29, 2013 and returned to modified duty on December 6, 2013. 

OWCP initially paid appellant intermittent wage-loss compensation benefits on supplemental rolls

as of October 6, 2013 and on the periodic rolls as of June 1, 2014. On December 10, 2014 

appellant underwent an OWCP-authorized C3-4 discectomy, arthrodesis, and interbody fusion. 

She returned to a full-time modified position on January 26, 2016. 

On November 15, 2016 appellant filed a claim for a schedule award (Form CA-7).

By development letter dated December 1, 2016, OWCP advised appellant of the specific 

evidence needed to establish entitlement to a schedule award. It afforded appellant 30 days to 

submit the necessary evidence. 

OWCP received a January 5, 2017 report from Dr. Joshua B. Macht, a Board-certified 

internist, which evaluated appellant’s permanent impairment under the sixth edition of the 

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

Guides) and The Guides Newsletter Rating Spinal Nerve Extremity Impairment Using the Sixth 

Edition (July/August 2009) (The Guides Newsletter).

4

 Dr. Macht indicated that appellant’s 

preoperative testing showed evidence of right C5 radiculopathy, but the current radicular type of 

symptoms appellant described were nonverifiable and could not be related to a clear nerve root 

level by history. He found that appellant had a class 1, grade C impairment of the right upper 

extremity for mild sensory deficit at C5 which equaled one percent impairment. Dr. Macht also 

found that appellant had a class 1, grade C impairment of the right upper extremity for mild motor 

deficit at C5 which equaled four percent impairment. He combined those impairments and 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the October 17, 2018 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 A.M.A., Guides (6th ed. 2009).
3

concluded that appellant had five percent impairment of the right upper extremity due to her 

cervical injury with C5 radiculopathy.

In a February 2, 2017 report, Dr. James W. Butler, Board-certified in occupational 

medicine and serving as the district medical adviser (DMA), reviewed the medical evidence of 

record, including Dr. Macht’s impairment report, and concluded that the evidence did not 

demonstrate a measureable, permanent impairment of a scheduled member or function of the body. 

His finding was based on the fact that Dr. Hugo Benalcazar, a Board-certified neurosurgeon, had 

indicated in his June 9, 2016 report that appellant’s postoperative electromyogram (EMG) was 

negative and that she had normal sensory and motor function at the time of his examination. The 

DMA also found no evidence that appellant had nonverifiable radicular complaints.

By decision dated February 6, 2017, OWCP denied appellant’s schedule award claim. It 

accorded determinative weight to the DMA’s opinion that the evidence was insufficient to 

establish that she sustained a permanent impairment to a scheduled member or function of the 

body due to the accepted June 29, 2013 employment injury.

On February 10, 2017 appellant, through counsel, requested a hearing before an OWCP 

hearing representative, which was held telephonically on August 7, 2017. Counsel presented 

arguments regarding the evidentiary weight of the postoperative EMG. No new evidence was 

received. 

By decision dated October 23, 2017, an OWCP hearing representative affirmed OWCP’s 

February 6, 2017 schedule award decision. The hearing representative found that the DMA 

properly applied the information provided by Dr. Macht in his January 5, 2017 report to the 

standards set forth in the A.M.A., Guides to establish that appellant had no permanent impairment 

as a result of the June 29, 2013 employment injury. 

On July 19, 2018 OWCP received counsel’s request for reconsideration of its October 23, 

2017 decision. Counsel asserted that OWCP’s decision was “wrong as a matter of law because 

the DMA relied on postoperative EMG. He should have considered the presurgical findings.” 

Counsel referenced law pertaining to the legal concepts of fact of injury, causal relationship, and 

disability. He also indicated that an October 30, 2013 report of Dr. John Augustin, Board-certified 

in internal medicine, was submitted in support of his reconsideration request.5

Evidence received following the October 23, 2017 hearing representative decision 

included medical authorization requests, copies of myofascial trigger point injection procedure 

notes, and evidence pertaining to an overpayment and job offers. Treatment reports, disability 

notes and duty status reports (Form CA-17) from Dr. Hugo Benalcazar, a Board-certified 

neurosurgeon, dated August 15, September 14, November 28, and December 8, 2017 were also 

received.

By decision dated October 17, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of her claim.

 

5 The record does not contain an October 30, 2013 report from Dr. Augustin. 
4

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).

Initially, the Board finds that OWCP properly considered appellant’s correspondence as a 

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

claim a new award based on a new rating of permanent impairment for the accepted employmentrelated conditions.11

 Therefore, the issue presented on appeal is whether appellant met any of the 

requirements of 20 C.F.R. § 10.606(b)(3), warranting further review of the merits of her claim.12

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law or advance a relevant legal argument not previously considered by OWCP. Counsel asserted 

in his reconsideration request that OWCP’s decision was “wrong as a matter of law” because the 

DMA relied on a postoperative EMG to determine that appellant had no sensory loss or motor 

 

6 This section provides that 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

Id. at § 10.606(b)(3).

10 Id.

11 See B.W., Docket No. 18-1415 (issued March 8, 2019); G.T., Docket No. Docket No. 18-0158 (issued 

May 11, 2018).

12 Id.
5

weakness of her upper extremities. Counsel, however, did not identify the legal precedent 

allegedly contravened or provide further explanation as to why presurgical findings were relevant 

in determining schedule award entitlement as of the time appellant reached maximum medical 

improvement. Consequently, appellant is not entitled to further review of the merits of her 

schedule award claim based on the first and second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3). 

A claimant may be entitled to a merit review by submitting relevant and pertinent new 

evidence, but appellant did not submit such evidence in this case.13 The underlying issue in this 

case is whether appellant has established permanent impairment of a scheduled member or 

function of the body due to her work injury. The Board finds that the new evidence submitted is 

not relevant and pertinent as it does not contain new evidence addressing the current extent of 

appellant’s employment-related permanent impairment.14 While counsel indicated that an

October 30, 2013 report of Dr. Augustin was submitted in support of his reconsideration request, 

the record is devoid of such report. Appellant is therefore not entitled to a review of the merits of 

her claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).

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.15

On appeal counsel contends that OWCP’s October 17, 2018 decision caused appellant to 

lose her appeal rights. Appellant, however, 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.16

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).

 

13 See R.R., Docket No. 18-0068 (issued May 16, 2019); S.S., Docket No. 18-0647 (issued October 15, 2018).

14 E.L., Docket No. 18-1262 (issued March 11, 2019). 

15 See R.R., supra note 13; D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued 

August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

16 See B.W., Docket No. 18-1415 (issued March 8, 2019). 
6

ORDER

IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 6, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board