United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

DEPARTMENT OF DEFENSE, ARMED 

FORCES RETIREMENT HOME, Gulfport, MS, 

Employer

__________________________________________

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Docket No. 18-1415

Issued: March 8, 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 March 14, 2018 merit decision and 

a June 29, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish any 

permanent impairment of the right upper extremity, or greater than nine percent permanent 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the June 29, 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.
2

impairment of the left upper extremity, for which she has previously received schedule award

compensation; and (2) whether OWCP properly denied her request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts 

are as follows.

On May 12, 2004 appellant, then a 41-year-old physical therapy assistant, filed a traumatic 

injury claim (Form CA-1) alleging that, on May 11, 2004, she injured her left shoulder and left 

side of her neck when helping to reposition a patient while in the performance of duty. On July 7, 

2004 OWCP accepted the claim for aggravation of cervical radiculopathy. Appellant continued 

to work limited duty. 

On November 25, 2005 appellant filed a claim for a schedule award (Form CA-7).

By decision dated July 30, 2007, OWCP granted appellant a schedule award for nine 

percent permanent impairment of the left upper extremity.4 On September 25, 2007 appellant 

appealed to the Board. By decision dated March 11, 2008, the Board affirmed the July 30, 2007 

decision.5

On March 5, 2017 appellant filed a claim for an additional schedule award (Form CA-7). 

She indicated that she had retired, effective October 1, 2015. Medical evidence submitted included 

reports regarding a November 3, 2016 hospitalization when Dr. Robert Kimber, an orthopedic 

surgeon, performed anterior cervical discectomy and fusion. 

By development letter dated March 28, 2017, OWCP informed appellant of the type of 

medical evidence needed to establish her claim for an additional schedule award. It afforded her 

30 days to submit the necessary evidence.

In May 25, 2017 correspondence, appellant indicated that her physician was unwilling to 

provide an impairment evaluation. 

On October 13, 2017 OWCP referred appellant to Dr. Simon Finger, a Board-certified 

orthopedic surgeon, for a second opinion to evaluate appellant’s work-related condition and any 

 

3 Docket No. 07-2428 (issued March 11, 2008); Order Dismissing Appeal, Docket No. 08-1670 (issued 

December 22, 2008); Order Dismissing Appeal, Docket No. 15-0875 (issued April 29, 2015); and Order Dismissing 

Appeal, Docket No. 15-1763 (issued February 10, 2016).

4 The award was based on the opinion of Dr. Raymond Fletcher, an OWCP referral physician who is Board-certified 

in orthopedic surgery. In a June 6, 2007 report, he opined that appellant had nine percent permanent impairment of 

the left upper extremity. By report dated June 25, 2007, an OWCP medical adviser concurred with Dr. Fletcher’s 

opinion. 

5 Docket No. 07-2428; supra note 3.
3

resulting permanent impairment, in accordance with the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6

In a November 14, 2017 report, Dr. Finger noted that appellant had undergone cervical 

spine surgery in November 2016 and was currently experiencing improving hand weakness. He 

described his review of the statement of accepted facts and medical record. Examination findings 

included full painless neck range of motion, bilateral negative upper extremity Spurling’s signs, 

full lumbar spine range of motion, and a negative straight leg raise. Dr. Finger found no atrophy 

in the upper and lower extremities, and no motor or sensory deficits present. He advised that

maximum medical improvement (MMI) had been reached on November 14, 2017 and that, in 

accordance with The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the 

Sixth Edition (July/August 2009) (The Guides Newsletter), appellant had zero permanent

impairment because she had no motor or sensory loss.

In a January 31, 2018 report, Dr. Arthur Harris, a Board-certified orthopedic surgeon and 

OWCP district medical adviser (DMA), noted that appellant had previously received a schedule 

award for nine percent permanent impairment of the left upper extremity. He reviewed the medical 

record, including Dr. Finger’s November 14, 2017 evaluation, which he found to be the date of 

MMI. The DMA opined that appellant had no upper extremity impairment in accordance with The 

Guides Newsletter because she had no neurologic deficit consistent with radiculopathy in the upper 

extremity.

By decision dated March 14, 2018, OWCP noted that appellant had previously received a 

schedule award for nine percent permanent impairment of the left upper extremity. It found that, 

based on Dr. Finger’s physical examination findings as reviewed by the DMA, she was not entitled 

to an additional upper extremity schedule award because she had no peripheral nerve impairment 

on examination. 

On June 8, 2018 appellant requested reconsideration. She submitted evidence previously 

of record including diagnostic studies and records of the November 2016 hospitalization.

OWCP also received additional medical evidence. Dr. Eric Letonoff, an osteopath Boardcertified in orthopedic surgery, examined appellant on June 24, 2014. He diagnosed bilateral 

carpal tunnel syndrome and radicular syndrome of both upper extremities. In treatment notes dated 

November 21, 2016 to February 22, 2017, Dr. Kimber described appellant’s postoperative care

following the November 2016 cervical spine surgery.

By decision dated June 29, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a), finding that she had not submitted new and 

relevant evidence, or legal argument sufficient to warrant reopening the merits of her schedule 

award claim.

 

6 A.M.A., Guides (6th ed. 2009).
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LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,

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and its implementing federal regulations,

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set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued after 

May 1, 2009, the sixth edition will be used.10

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.11 In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for 

permanent impairment to a member of the body covered by the schedule regardless of whether the 

cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as the 

schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to an extremity even though the cause of the impairment 

originated in the spine.12

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

alternative approach to rating spinal nerve impairments.13 OWCP has adopted this approach for 

rating permanent impairment of the upper or lower extremities caused by a spinal injury, as 

provided in section 3.700 of its procedures, which memorializes proposed tables outlined in a 

July/August 2009 The Guides Newsletter.

14

 Specifically, OWCP will address upper extremity 

impairment originating in the spine through Table 15-14.15

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

11 J.M., Docket No. 18-0856 (issued November 27, 2018); Pamela J. Darling, 49 ECAB 286 (1998).

12 J.M., id; Thomas J. Engelhart, 50 ECAB 319 (1999).

13 R.B., Docket No. 17-1995 (issued August 13, 2018); Rozella L. Skinner, 37 ECAB 398 (1986).

14 Supra note 10 at Chapter 3.700, Exhibit 1, (January 2010); The Guides Newsletter is included as Exhibit 4.

15 Supra note 6 at 425.
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ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of her right upper extremity, or more than nine percent permanent impairment of her 

left upper extremity for which she previously received schedule award compensation.

OWCP accepted that appellant sustained an aggravation of cervical radiculopathy. By 

decision dated July 30, 2007, it granted appellant a schedule award for nine percent permanent 

impairment of the left upper extremity. By decision dated March 11, 2008, the Board affirmed the 

July 30, 2007 decision. The Board’s review of the medical evidence submitted prior to July 30, 

2007 is res judicata absent any further review by OWCP under section 8128 of FECA.16

On March 5, 2017 appellant submitted a claim for an additional schedule award. By 

decision dated March 14, 2018, OWCP denied the claim based on the opinions of Dr. Finger, an 

OWCP referral physician, as reviewed by the DMA, Dr. Harris.

The Board finds that Dr. Finger properly determined that appellant had no additional 

permanent impairment of either upper extremity.

In his November 14, 2017 report, Dr. Finger explained that he was rating permanent 

impairment of appellant’s upper extremities under the standards of The Guides Newsletter. He

properly determined that, as appellant exhibited no sensory or motor loss in either upper extremity, 

appellant had no impairment according to the standards of The Guides Newsletter. On January 31, 

2018 the DMA reviewed Dr. Finger’s report and concurred that, as appellant had no upper 

extremity motor or sensory deficits related to the accepted aggravation of cervical radiculopathy, 

she had no upper extremity permanent impairment under The Guides Newsletter. 

On appeal appellant asserts that her condition has worsened since Dr. Fletcher reported 

nine percent permanent impairment of the left upper extremity in June 2007.17 The only 

contemporaneous impairment evaluation of record, however, is the November 14, 2017 evaluation 

provided by Dr. Finger. The Board finds that the weight of the medical evidence rests with the 

opinions of Dr. Finger and the DMA. Dr. Finger based his opinion on an accurate factual and 

medical history and provided findings on examination to support his opinion. There is no 

contemporaneous medical evidence of record, in conformance with the sixth edition of the A.M.A., 

Guides or The Guides Newsletter establishing that appellant has permanent impairment of a 

scheduled member due to the accepted cervical condition.18

Appellant, therefore, has not established permanent impairment of the right upper 

extremity, nor has she established permanent impairment of the left upper extremity greater than 

the nine percent previously awarded.

 

16 See A.T., Docket No. 16-0738 (issued May 19, 2016). 

17 Supra note 4. As noted, Dr. Fletcher provided an impairment evaluation in June 2007. 

18 J.M., supra note 11.
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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. 

LEGAL PRECEDENT -- ISSUE 2

Under section 8128(a) of FECA,19 OWCP has the discretion to reopen a case for review on 

the merits. It must exercise this discretion in accordance with the guidelines set forth in section 

10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain 

review of the merits of his or her written application for reconsideration, including all supporting 

documents, sets forth arguments and contain evidence which 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.20

Section 10.608(b) provides that any application for review of the merits of the claim, which 

does not meet at least one of the requirements listed in section 10.606(b), will be denied by OWCP 

without review of the merits of the claim.21

ANALYSIS -- ISSUE 2

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 cervical 

radiculopathy.22 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. 

With her June 8, 2018 reconsideration request, 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. 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).23

Appellant submitted evidence previously of record with her reconsideration request. The 

Board has long held that evidence previously of record does not constitute a basis for reopening a 

 

19 5 U.S.C. § 8128(a).

20 20 C.F.R. § 10.608(b).

21 Id. at § 10.608(b).

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

23 See M.M., Docket No. 18-0292 (issued July 9, 2018).
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case.24 While appellant submitted new medical evidence, none of it contained an impairment 

rating. Rather the medical evidence submitted pertained to her hospitalization for cervical spine 

surgery in November 2016, follow-up treatment notes by Dr. Kimber, and a new diagnosis of 

bilateral carpal tunnel syndrome, which has not been accepted by OWCP. The submission of 

evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.25 The underlying issue is whether appellant has submitted sufficient 

evidence to establish entitlement to a schedule award for a right upper extremity impairment and 

an increased left upper extremity schedule award due to the accepted cervical radiculopathy. 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.26

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.

CONCLUSION

The Board finds that appellant has not established permanent impairment of the right upper 

extremity, or greater than nine percent permanent impairment of the left upper extremity, for which 

she has previously received schedule award compensation. The Board further finds that OWCP 

properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 

5 U.S.C. § 8128(a).

 

24 Id.; see also D.K., 59 ECAB 141 (2007).

25 See P.H., Docket No. 18-1020 (issued November 1, 2018); Edward Matthew Diekemper, 31 ECAB 224, 

225 (1979). 

26 See supra note 22.
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ORDER

IT IS HEREBY ORDERED THAT the June 29 and March 14, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 8, 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