United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Edinburg, TX, Employer 

__________________________________________ 

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Docket No. 17-0038 

Issued: June 8, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 October 17, 2016 appellant filed a timely appeal from a September 23, 2016 nonmerit 

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

elapsed from the last merit decision, dated February 10, 2016, 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 this case. 

 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

 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 his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On February 27, 2013 appellant, then a 40-year-old supervisory border patrol agent, filed 

a traumatic injury claim (Form CA-1) alleging that he sustained a left eye injury when a tree 

branch struck him when tracking through a wooded area. OWCP accepted appellant’s condition 

for superficial injury of the left cornea and central opacity of the left cornea. Appellant did not 

stop work. 

On August 7, 2013 Dr. John D. Goosey, a Board-certified ophthalmologist, performed a 

lamellar keratoplasty of the left eye and diagnosed central corneal scar of the left eye. 

On November 13, 2014 appellant filed a claim for a schedule award (Form CA-7). 

On February 24, 2015 OWCP referred appellant for a second opinion to Dr. Thomas P. 

Dowhan, a Board-certified ophthalmologist, for a determination of whether appellant had 

permanent impairment attributable to his accepted conditions. In a report dated April 20, 2015, 

Dr. Dowhan noted a history of appellant’s work-related incident and subsequent treatment. He 

indicated that appellant was struck in the left eye by a tree branch while working. Dr. Dowhan 

noted that the injury left appellant with a superficial scar causing visual impairment. He advised 

that appellant underwent lamellar keratoplasty to correct the condition and restore vision. 

Appellant reported a significant decrease in vision in the left eye and photophobia on days when 

the sun was bright. Dr. Dowhan indicated that maximum medical improvement was reached on 

August 7, 2013. He noted that following surgery, appellant showed signs of graft rejection, but 

after medical management his condition has stabilized. Dr. Dowhan diagnosed corneal scar and 

central opacities. He opined that, pursuant to the sixth edition of the American Medical 

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

3

 Table 12-2 

and 12-3, Impairment of Visual Acuity, appellant had 75 percent permanent impairment of the 

left eye. 

 In a September 30, 2015 report, an OWCP medical adviser indicated that Dr. Dowhan 

failed to provide letter chart acuity for binocular vision. He requested that Dr. Dowhan provide a 

visual acuity score so that an acuity-related impairment rating could be accurately determined. 

On October 5, 2015 OWCP requested Dr. Dowhan provide a visual acuity score for both 

eyes. On November 19, 2015 Dr. Dowhan opined that, pursuant to the A.M.A., Guides, Table 

12-2 and 12-3, the functional acuity score was 85. He diagnosed visual loss of left eye due to 

corneal opacity. Dr. Dowhan calculated 15 percent visual permanent impairment. In a 

January 18, 2016 report, the medical adviser agreed with Dr. Dowhan’s impairment rating 

determination of 15 percent permanent impairment of the left eye. 

 3

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

In a decision dated February 10, 2016, OWCP granted appellant a schedule award for 15 

percent permanent impairment of the left eye. The period of the award ran from May 2 to 

October 16, 2014. 

On August 9, 2016 appellant, through counsel, requested reconsideration. He submitted a 

new report from Dr. Ronald H. Krasney, a Board-certified ophthalmologist, and asserted that, 

based on this new evidence, OWCP’s decision should be vacated and the previous decision 

overturned. In his July 5, 2016 report, Dr. Krasney noted a history of appellant’s injury and 

medical treatment. He noted that appellant experienced a difficult postoperative course with 

early signs of graft rejection which explained his persistent photophobic symptoms and persistent 

corneal opacities. Dr. Krasney referenced OWCP’s medical adviser’s note which considered 

impairment based on visual acuity in both eyes. However, he advised that this method did not 

truly consider the impairment in the left eye which includes loss of stereopsis. Dr. Krasney 

indicated that his “own personal comment on this matter is how anyone would feel if they had 

two of something and now only had one that is functioning.” He further noted that “to most 

anyone, this would be at least 50 percent loss and if it were one’s own personal situation this loss 

might be considered even more severe.” 

Appellant also submitted a March 9, 2016 report from Dr. Dowhan who treated him for 

left eye pain, sticky left eye, and headaches from blurred vision which was worse over the last 

week. Dr. Dowhan diagnosed pain in the left eye, foreign body in cornea of left eye, blurred 

vision, history of cornea transplant, history of photophobia of the left eye, and cornea edema. He 

noted removing the exposed part of a suture. 

In a September 23, 2016 decision, OWCP denied appellant’s request for reconsideration, 

finding that the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4 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 his written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence that: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by the 

(Office); or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”5

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.606(b)(3). 
4

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.6

ANALYSIS 

By decision dated February 10, 2016, OWCP granted appellant’s claim for a schedule 

award for 15 percent permanent impairment of the left eye. In a September 23, 2016 decision, 

OWCP denied appellant’s reconsideration request, without conducting a merit review, finding 

that the evidence submitted was insufficient to warrant review of the prior decision as it neither 

raised substantive legal questions, nor included new and relevant evidence. 

However, with his August 9, 2016 reconsideration request, appellant submitted relevant 

and pertinent evidence not previously considered by OWCP. With his request for 

reconsideration, appellant submitted a report from Dr. Krasney, a Board-certified 

ophthalmologist, dated July 5, 2016, who noted that appellant experienced a difficult 

postoperative course with early signs of graft rejection which explained his persistent 

photophobic symptoms and persistent corneal opacities. Dr. Krasney referenced OWCP’s 

medical adviser’s note which considered impairment based on visual acuity in both eyes, but 

advised that this method did not truly consider the impairment in the left eye which included loss 

of stereopsis. He indicated that his “own personal comment on this matter is how anyone would 

feel if they had two of something and now only had one that is functioning.” Dr. Krasney further 

noted that “to most anyone, this would be at least 50 percent loss and if it were one’s own 

personal situation this loss might be considered even more severe.” This particular medical 

evidence is relevant as it addressed permanent impairment of appellant’s left eye. Specifically, 

Dr. Krasney referenced OWCP’s medical adviser’s note which considered impairment based on 

visual acuity in both eyes, but not impairment in the left eye which includes loss of stereopsis. 

While this evidence may be of limited probative value as to the extent of permanent impairment, 

the Board has held that the requirement for reopening a claim for merit review does not include 

the requirement that a claimant must submit all evidence which may be necessary to discharge 

his or her burden of proof. Instead, the requirement pertaining to the submission of evidence in 

support of reconsideration only specifies that the evidence be relevant and pertinent and not 

previously considered by OWCP.7

 

The Board finds that, in accordance with 20 C.F.R. § 10.606(b)(3)(iii), the new report 

from Dr. Krasney is sufficient to require reopening appellant’s case for further review on its 

merits. The case shall be remanded for OWCP to reopen appellant’s claim for a merit review. 

Following this and such other development as deemed necessary, OWCP shall issue an 

appropriate merit decision on the appellant’s claim. 

 6 Id. at § 10.608(b). 

7 See Helen E. Tschantz, 39 ECAB 1382 (1988). 
5

CONCLUSION 

 The Board finds that OWCP, in its decision dated September 23, 2016, improperly denied 

appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

development in accordance with this decision. 

Issued: June 8, 2017 

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