United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.T., daughter of L.S., Appellant

and

U.S. POSTAL SERVICE, NASHVILLE 

PROCESSING & DISTRIBUTION CENTER, 

Nashville, TN, Employer

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Docket No. 19-1060

Issued: October 20, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 12, 2019 appellant filed a timely appeal from a January 7, 2019 nonmerit decision 

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

from the last merit decision, dated August 7, 2018, to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of the claim in accordance with 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On August 27, 2007 the employee, then a 57-year-old craft mail processing clerk, filed a 

traumatic injury claim (Form CA-1) alleging that she sprained her lower back and left shoulder on 

August 23, 2007 when pulling a tray of mail while in the performance of duty. OWCP accepted 

her claim for lumbar strain on October 17, 2007. On November 20, 2007 it expanded its 

acceptance of the claim to include left rotator cuff sprain. 

On December 17, 2007 the employee underwent authorized left subacromial 

decompression with repair of the rotator cuff tendon, bursectomy, and resection of the 

coracoacromial ligament.

On March 25, 2008 OWCP again expanded its acceptance of the claim to include disorders 

of the bursae and tendons of the left shoulder. On July 18, 2008 it also accepted aggravation of 

L5-S1 disc herniation, post-laminectomy syndrome L5-S1, lumbosacral spondylosis without 

myelopathy and post-laminectomy kyphosis.

On September 17, 2008 the employee underwent an authorized anterior discectomy and 

fusion at the L5-S1 level.

On March 11, 2010 the employee filed a separate traumatic injury claim (Form CA-1) 

alleging that on March 1, 2010 she felt pain in her right shoulder when reaching for a tray of mail 

while in the performance of duty. OWCP assigned that claim OWCP File No. xxxxxx192 and, by 

decision dated June 22, 2010, accepted it for right rotator cuff sprain. On January 10, 2011 it

administratively combined OWCP File No. xxxxxx192 with the present claim, OWCP File No. 

xxxxxxx981, with the latter serving as the master file.

On December 16, 2011 and December 5, 2012 the employee underwent additional shoulder 

surgeries to repair left rotator cuff tears.

By decision dated March 19, 2013, OWCP granted the employee a schedule award for 

eight percent permanent impairment of her right upper extremity.

On April 11, 2013 the employee requested reconsideration of the March 19, 2013 decision. 

She asserted that her March 19, 2013 schedule award was based on an incorrect pay rate.

By decision dated April 23, 2013, OWCP denied the employee’s request for 

reconsideration of the merits of her right upper extremity schedule award under 5 U.S.C. § 8128(a).

By decision dated May 16, 2013, OWCP granted the employee a schedule award for 21 

percent permanent impairment of her left upper extremity based on loss of range of motion (ROM).

By decision dated September 6, 2013, OWCP affirmed the pay rate used in the March 19, 

2013 right upper extremity schedule award decision.
3

On May 4, 2015 the employee requested reconsideration of the May 16, 2013 schedule 

award decision. She alleged that her physician had made a mathematical error in the calculation 

of the permanent impairment of her left upper extremity and that OWCP should have found that 

she had 22 percent permanent impairment of her left upper extremity based on his report.

By decision dated May 13, 2015, OWCP denied the employee’s request for reconsideration 

of the merits of the left upper extremity schedule award.

The employee filed a claim for an additional schedule award (Form CA-7) on 

January 12, 2017. In a January 16, 2017 letter, she informed OWCP that she was requesting an 

additional schedule award for her spinal injuries and organ failure due to medications used to treat 

her accepted spine injuries.3

In a January 24, 2017 development letter, OWCP requested additional medical evidence in 

support of the employee’s claim for an additional schedule award. It afforded her 30 days to 

respond.

On February 4, 2017 appellant requested an additional schedule award on behalf of the 

employee, her deceased mother. In support of this request, she provided a February 1, 2017 note 

from Dr. Juan S. Dinkins, an osteopath. Dr. Dinkins opined that the employee had 13 percent

whole person impairment due to radiculopathy. 

In a report dated June 13, 2017, Dr. Nathan Hammel, a Board-certified orthopedic surgeon

and district medical adviser (DMA), reviewed Dr. Dinkins’ report and the medical evidence of 

record. He found that the employee had no additional permanent impairment of a scheduled 

member or function of the body as there were no residual motor or sensory changes in her upper 

or lower extremities. Dr. Hammel noted that Dr. Dinkins did not apply the appropriate provisions 

of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment, (A.M.A., Guides)

4

to his findings.

By decision dated August 8, 2017, OWCP denied the employee’s claim for an additional 

schedule award.

On October 5, 2017 appellant requested reconsideration and argued that the DMA had 

reviewed an examination from an unqualified doctor and did not mention electromyography 

findings.

On January 19, 2018 OWCP referred the employee’s medical records and a statement of 

accepted facts (SOAF) for a second opinion evaluation regarding the nature and extent of the 

employee’s permanent impairment. The SOAF listed the employee’s accepted conditions as 

lumbar strain/sprain, left shoulder rotator sprain, temporary aggravation of lumbar herniated disc 

at L5-S1, disorder, other affections of bursae tendons in the left shoulder. It further noted the 

employee’s December 17, 2007, December 16, 2011, and November 26, 2012 left shoulder 

surgeries and September 17, 2009 lumbar spine surgery. The SOAF also indicated that the 

 

3 On January 21, 2017 the employee passed away.

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

employee had received a schedule award for 21 percent permanent impairment of the left upper 

extremity.

In a February 2, 2018 report, Dr. Martin G. Mendelssohn, a Board-certified orthopedic 

surgeon serving as OWCP’s referral physician, noted his review of the employee’s medical records 

and SOAF. He found that the employee had no additional permanent impairment due to her 

accepted back conditions.

On February 27, 2018 DMA Dr. Hammel again reviewed the medical evidence of record 

and found that the employee had no additional permanent impairment of a scheduled member or 

function of the body due to her accepted conditions.

By decision dated March 12, 2018, OWCP denied modification of the August 8, 2017 

denial of an additional schedule award.

On May 24, 2018 appellant requested reconsideration of the March 12, 2018 decision. She

submitted additional medical records dated March through October 2016 addressing the 

employee’s accepted employment-related conditions as well as chronic obstructive pulmonary 

disease, chronic kidney disease, liver cirrhosis, diabetes, congestive heart failure, gastric ulcer, 

osteoarthrosis, right foot pain hypertension, edema, obesity, chronic back pain, failed back 

syndrome, and right knee pain. Appellant also submitted medical records from Amanda Furline, 

a family nurse practitioner, dated July 5, and December 29, 2016 and Syretta Perkins, a family 

nurse practitioner, dated May 5, 2016. She provided previously submitted documentation from 

the employee regarding her prior schedule award claims. Additionally, appellant submitted a copy 

of the employee’s February 22, 2002 surgical report for micro-lumbar discectomy at L5-S1. She 

also provided an x-ray report regarding the employee’s left wrist.

In a May 14, 2018 report, Dr. Demond White, a family practitioner, discussed the 

employee’s medical history and diagnoses.

By decision dated August 7, 2018, OWCP denied modification of its March 12, 2018 

decision. It found that the evidence submitted did not address permanent impairment as a result 

of the accepted employment injuries.

On December 14, 2018 appellant again requested reconsideration of OWCP’s denial of an 

additional schedule award. An appeal request form requesting reconsideration of the March 12, 

2018 decision included the following handwritten notation, “Error of fact in its own procedure in 

FECA Bulletin No. 17-06 (issued May 8, 2017). Dr. Dinkins properly used [diagnosis-based 

impairment (DBI)] method of evaluation of 13 percent whole body -- SOAF was incomplete.”

The appeal request form requesting reconsideration of the August 7, 2018 decision included the 

following handwritten notation, “Error of fact in its own procedure in FECA Bulletin No. 17-06 

(issued May 8, 2017). Please review FECA bulletin and provide accurate decision. SOAF is 

incomplete.” In support of this request, appellant provided a copy of FECA Bulletin No. 17-06. 

She annotated portions of the bulletin to highlight language, including the requirement that both 

diagnosis-based and ROM impairments be calculated in determining the impairment of upper 

extremities and that schedule award compensation should be based on the greater of these two 

impairment ratings. 

By decision dated January 7, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of the additional schedule award claim. 
5

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 or her own motion or on application.5

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.6

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

OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits. 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.8

When reviewing an OWCP decision denying merit review, the function of the Board is to 

determine whether OWCP properly applied the standards set forth at 20 C.F.R. § 10.606(b)(3) to 

the claimant’s request for reconsideration and any evidence submitted in support thereof.9

ANALYSIS

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

the merits of the claim.10

In support of her request for reconsideration, appellant contended that the employee’s 

request for a schedule award should have included evaluation of the permanent impairment of her

upper extremities as required under FECA Bulletin No. 17-06 (issued May 8, 2017). She further 

contended that the SOAF was incomplete and argued that Dr. Dinkins’ impairment rating of 13 

 

5 5 U.S.C. § 8128(a); L.D., Docket No. 18-1468 (issued February 11, 2019); 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).

6 20 C.F.R. § 10.606(b)(3); L.D., id.; L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

7

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 its 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.

8

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

9 T.B., Docket No. 18-0033 (issued May 23, 2018); Annette Louise, 54 ECAB 783 (2003).

10 Preliminarily, the Board notes that OWCP did not receive any medical evidence of permanent impairment along 

with appellant’s December 14, 2018 reconsideration request. The Board will therefore consider this to be a request 

for reconsideration as opposed to a claim for an increased schedule award. See B.R., Docket No. 19-0372 (issued 

February 20, 2020); L.G., Docket No. 09-1517 (issued March 3, 2010); Candace A. Karkoff, 56 ECAB 622 (2005).
6

percent whole person impairment was correct under the DBI methodology. Appellant provided a 

copy of FECA Bulletin 17-06, with handwritten annotations. The Board finds that her legal 

arguments are new and relevant to the underlying issues in the employee’s additional schedule 

award claims. 

As appellant has advanced new and relevant legal arguments, she is entitled to a review of 

the merits of the claim under section 10.606(b)(3) of OWCP’s regulations.11 Following any further 

development as deemed necessary, OWCP shall issue an appropriate merit decision regarding the 

employee’s additional schedule award claim.

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

the merits of the claim.

ORDER

IT IS HEREBY ORDERED THAT the January 7, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: October 20, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

11 J.T., Docket No. 19-1829 (issued August 21, 2020); T.P., Docket No. 18-0608 (issued August 2, 2018). See 

L.K., Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued July 6, 2016).