United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Richmond, CA, Employer

__________________________________________

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Docket No. 19-1115

Issued: November 12, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 22, 2019 appellant, through counsel, filed a timely appeal from a February 21, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated January 3, 2019, which became final after 30 

days of issuance and is not subject to further review.2 As there was no merit decision issued by 

OWCP within 180 days of the filing of this appeal, pursuant to the Federal Employees’

 

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 20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018).
2

Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction 

over the merits of this case.4 

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

This case has previously been before the Board.5 The facts and circumstances as set forth 

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

follows.

On May 14, 2010 appellant, then a 48-year-old claims authorizer, filed an occupational 

disease claim (Form CA-2) alleging that she sustained right shoulder and arm strain causally 

related to factors of her federal employment. OWCP accepted the claim for rotator cuff syndrome 

and impingement syndrome of the right shoulder and dysthymic disorder. It assigned OWCP File 

No. xxxxxx521.

OWCP had previously accepted that appellant sustained right shoulder strain on May 4, 

2009 under OWCP File No. xxxxxx115 and left shoulder sprain, a partial infraspinatus tear, 

tendinitis, and cervicalgia under OWCP File No. xxxxxx606. It combined the claims into OWCP 

File No. xxxxxx521.

On April 30, 2012 appellant underwent a right shoulder acromioplasty with a distal clavicle 

excision and labral repair. On February 24, 2014 she underwent a synovectomy, bursectomy, 

ligament release, biceps tendon release, acromioplasty, debridement of the rotator cuff, and 

removal of the anchor from the labrum. OWCP paid appellant wage-loss compensation for 

intermittent periods of temporary total disability.

In an impairment evaluation dated February 18, 2015, Dr. Michael E. Hebrard, a Boardcertified physiatrist, found 26 percent permanent impairment of the right upper extremity and 14 

percent permanent impairment of the left upper extremity due to a loss of shoulder motion pursuant 

to Table 15-34 on page 477 of the sixth edition of the American Medical Association, Guides to 

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

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that, following the February 21, 2019 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.

5 Docket No. 18-1297 (issued January 3, 2019).

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

On April 28, 2017 appellant filed a schedule award claim (Form CA-7).

On June 7, 2017 OWCP referred appellant to Dr. Mohinder S. Nijjar, a Board-certified 

orthopedic surgeon, for a second opinion examination regarding the extent of any permanent 

impairment of the bilateral upper extremities. The accompanying statement of accepted facts 

described only appellant’s right upper extremity condition and requested that Dr. Nijjar calculate 

the extent of her permanent impairment of the right upper extremity.

In a July 26, 2017 impairment evaluation, Dr. Nijjar measured normal range of motion 

(ROM) of the shoulder with some tenderness over the acromioclavicular (AC) joint, anterior 

acromion process, and biceps tendon. He diagnosed right shoulder impingement syndrome and a 

partial rotator cuff tear, degenerative arthritis of the AC joint after surgery, and a SLAP (superior 

labral lesion from anterior to posterior) lesion status postsurgical debridement and subacromial 

decompression of the right shoulder. Dr. Nijjar identified the diagnosis as AC joint disease after 

a distal clavicle resection or AC separation using Table 15-5 on page 403 of the A.M.A, Guides, 

which yielded a default impairment of 10 percent. He further found a default impairment rating 

of three percent due to appellant’s SLAP lesion using Table 15-5 on page 404, which yielded four 

percent permanent impairment after application of grade modifiers, for a total right upper 

extremity permanent impairment of 14 percent. 

On October 12, 2017 Dr. David H. Garelick, a Board-certified orthopedic surgeon and 

OWCP district medical adviser (DMA), applied the A.M.A., Guides and FECA Bulletin No. 17-

067to Dr. Nijjar’s findings. He noted that Dr. Nijjar had identified the ROM as normal. 

Dr. Garelick concurred with Dr. Nijjar’s finding of 10 percent right upper extremity impairment 

due to the distal clavicle resection using Table 15-5 on page 403. He found that appellant could 

not receive an impairment rating for both the labral lesion and the distal clavicle resection as the 

A.M.A., Guides indicated that shoulder impairments often occurred together and instructed the 

evaluator to select the most significant diagnosis. Dr. Garelick used the impairment rating for the 

distal clavicle resection and determined that appellant had 10 percent permanent impairment of the 

right upper extremity. He opined that appellant had reached maximum medical improvement on 

July 26, 2017.

By decision dated November 7, 2017, OWCP granted appellant a schedule award for 10 

percent permanent impairment of the right arm. The period of the award ran for 31.2 weeks from 

October 15, 2017 to a fraction of a day on May 21, 2018.8

On November 14, 2017 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative.

A telephonic hearing was held on April 2, 2018. Counsel questioned why OWCP had not 

provided a left upper extremity rating. He further asserted that OWCP should consider the 

impairment determination based on ROM from Dr. Hebrard. 

 

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

8 OWCP adjusted the beginning date of the schedule award to October 15, 2017 as appellant had received wageloss compensation for total disability through October 14, 2017. 
4

By decision dated May 3, 2018, OWCP’s hearing representative affirmed the November 7, 

2017 decision. He noted that OWCP should consider expanding the acceptance of appellant’s 

claim to include a right shoulder labral tear based on Dr. Nijjar’s opinion. The hearing 

representative also “recommend[ed]” that OWCP develop the issue of whether she had a 

permanent impairment of the left upper extremity.

Appellant appealed to the Board. By decision dated January 3, 2019, the Board affirmed 

the May 3, 2018 decision.9 The Board found that the opinion of the DMA constituted the weight 

of the evidence and established that appellant had no more than 10 percent permanent impairment 

of the right upper extremity. The Board found that Dr. Hebrard’s ROM findings were stale as 

performed more than two years prior to Dr. Nijjar’s second opinion evaluation. 

On February 12, 2019 appellant, through counsel, requested reconsideration. He 

resubmitted the February 18, 2015 impairment evaluation from Dr. Hebrard. Counsel asserted that 

OWCP had failed to adjudicate the extent of appellant’s left upper extremity impairment.

By decision dated February 21, 2019, OWCP denied appellant’s request for 

reconsideration of the merits of her 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 compensation at any time on his own motion or on application.10

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

provide evidence or an argument which: (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.11

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

OWCP’s decision for which review is sought.12 If it chooses to grant reconsideration, it reopens 

 

9 Supra note 5.

10 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-

1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

11 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

12 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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). Chapter 2.1602.4b.
5

and reviews the case on its merits.13 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.14

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).

By decision dated May 3, 2018, OWCP granted appellant a schedule award for 10 percent 

permanent impairment of the right upper extremity. By decision dated January 3, 2019, the Board 

affirmed the May 3, 2018 decision. On February 12, 2019 appellant filed a timely request for 

reconsideration of the May 3, 2018 decision. Initially, the Board finds that OWCP properly 

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

schedule award as she did not submit any evidence showing increased permanent impairment or 

additional exposure.15 The underlying issue on reconsideration is whether the medical evidence 

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

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

warrant a merit review pursuant to 5 U.S.C. § 8128(a).16

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. On reconsideration counsel contended that OWCP 

erred in failing to determine whether appellant had a permanent impairment of the left upper 

extremity.17 The sole and relevant issue before the Board, however, is the extent of her permanent 

impairment of the right upper extremity. The Board has held that the submission of evidence that 

does not address the particular issue involved does not constitute a basis for reopening a case.18 

Thus, the Board finds that appellant has not advanced a relevant legal argument not previously 

considered by OWCP.19 Consequently, 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).20

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

evidence not previously considered relevant to the issue of whether she is entitled to a greater 

 

13 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

14 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

15 See A.A., Docket No. 19-0939 (issued August 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

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

17 The Board notes that OWCP’s hearing representative, in the May 3, 2018 decision, recommended that OWCP 

further develop the issue of whether appellant has a permanent impairment of the left upper extremity. 

18 L.C., Docket No. 18-0787 (issued September 26, 2019).

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

20 C.B., Docket No. 18-1108 (issued January 22, 2019).
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schedule award of the right upper extremity. Appellant resubmitted Dr. Hebrard’s February 18, 

2015 impairment evaluation. However, the submission of evidence, which duplicates evidence 

already in the case record, does not constitute a basis for reopening a case for further merit 

review.21 As appellant did not provide relevant and pertinent new evidence, she is not entitled to 

a merit review based on the third requirement under section 10.606(b)(3).22

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.23

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 February 21, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 12, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

21 T.W., Docket No. 19-0786 (issued September 18, 2019); M.C., Docket No. 18-0841 (issued September 13, 2019).

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

23 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).