United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.L., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

El Paso, TX, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0726

Issued: January 19, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On April 15, 2021 appellant filed a timely appeal from a January 20, 2021 nonmerit 

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

elapsed from the last merit decision, dated July 22, 2020, 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 to review the merits of this claim.

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 November 19, 2016 appellant, then a 37-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on November 14, 2016 he injured his right elbow when he 

1

5 U.S.C. § 8101 et seq.
2

struck it on a post while drawing his service handgun while in the performance of duty. OWCP 

accepted the claim for other specified mononeuropathies of the right upper limb and contusion of 

the right forearm.

In an October 25, 2018 report, Dr. Michael Mrochek, a physiatrist and physical medicine 

and rehabilitation specialist, noted that appellant had been referred by his treating physician,

Dr. Cheryl Ledford, a Board-certified orthopedic surgeon, for a permanent impairment rating. He 

related appellant’s history of injury on November 14, 2016 and noted that while his condition had 

improved, he continued to have symptoms of numbness and tingling in the small and ring finger 

of the right hand. Dr. Mrochek examined appellant and opined that, pursuant to the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides),2 Table 15-23, page 449, he had two percent permanent impairment of the right 

upper extremity due to his accepted condition of right forearm contusion and other specified 

mononeuropathies of the right upper limb. He explained that the rating was based on a 

QuickDASH disability score of 23 percent, a grade modifier for clinical studies (GMCS) of one

for test findings of conduction delay, a grade modifier for functional history (GMFH) of one for 

history of constant symptoms, and a grade modifier for physical examination (GMPE) of one for 

physical examination findings. Dr. Mrochek concluded that appellant had a net adjustment of two, 

equaling two percent permanent impairment of the right upper extremity. 

In medical reports dated September 11 and December 11, 2018, Dr. Ledford reiterated her 

findings and diagnoses of neuropathies of the right upper limb and contusion of the right forearm. 

In work capacity evaluations (Form OWCP-5c) of even date, she found that appellant could 

perform his usual work duties without restrictions. 

On November 15, 2018 appellant filed a claim for compensation (Form CA-7) for a 

schedule award.

On April 26, June 18, and August 27, 2019 OWCP referred appellant’s case, along with a 

statement of accepted facts (SOAF), to a district medical adviser (DMA) to provide an impairment 

rating in conformity with the A.M.A., Guides. 

In a September 30, 2019 report, Dr. David J. Slutsky, a Board-certified orthopedic surgeon 

serving as the DMA, reviewed the SOAF and medical record, including Dr. Mrochek’s 

October 25, 2018 report. He disagreed with Dr. Mrochek’s findings and found that appellant did 

not have a ratable impairment as a result of his accepted conditions of other specified 

mononeuropathies of the right upper limb and contusion of the right forearm. Dr. Slutsky related 

that Dr. Mrochek incorrectly determined appellant’s impairment for entrapment/compression 

neuropathy using Table 15-23, page 449, of the A.M.A., Guides. He explained that since appellant 

sustained blunt trauma to his ulnar nerve at the elbow, it was more appropriate to rate his injury as 

contusion of the proximal ulnar nerve at the elbow using Table 15-21 (Peripheral Nerve 

Impairment) beginning on page 436 rather than entrapment. Dr. Slutsky concluded that under the 

diagnosis-based impairment (DBI) method for contusion of the right ulnar nerve at the elbow, 

appellant had zero percent impairment rating. He determined that appellant reached maximum 

medical improvement (MMI) on October 25, 2018, the date of Dr. Mrochek’s examination. 

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

By decision dated October 16, 2019, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body as a result of his accepted November 14, 2016 

employment injury. 

In an October 30, 2019 medical report, Dr. Boone noted that appellant continued to 

experience symptoms with extreme hypersensitivity and pain anytime there was contact over the 

ulnar nerve at the elbow. He related that he also continued to have a sensory loss over the right 

ulnar dermatome. Dr. Boone diagnosed mononeuropathies of the right upper limb and contusion 

of the right forearm. In a Form OWCP-5c of even date, he reiterated his diagnoses. 

In a November 1, 2019 report, Dr. Mrochek noted that appellant presented for a second 

impairment rating. He disagreed with the DMA’s finding that appellant had no ratable impairment

and incorrectly based his opinion on Table 15-23, page 449, of the A.M.A., Guides. Dr. Mrochek 

opined that, based on objective findings documented in a June 12, 2017 EMG/NCV study, it was

most appropriate to use the entrapment/compression neuropathy impairment table. He maintained 

that his October 25, 2018 impairment rating report was accurate and represented appellant’s 

functional loss due to his November 14, 2016 employment injury. 

In a November 19, 2019 letter, Dr. Boone noted that appellant was recently reevaluated in 

his office. He again indicated that he conducted electrodiagnostic testing on the right ulnar nerve, 

which revealed moderate right cubital tunnel syndrome. Dr. Boone observed that appellant’s ulnar 

nerve was clearly compromised in the right cubital tunnel. He opined that Dr. Mrochek’s 

impairment rating was accurate and further noted that appellant suffered from continuous 

sensitivity in the cubital tunnel, which was aggravated by any pressure or contact in that area. 

On November 20, 2019 appellant requested reconsideration. In a November 15, 2019 

statement, he reiterated his account of the accepted November 14, 2016 employment incident. 

Appellant noted that he was still suffering with symptoms and of his accepted employment injury. 

He noted that both Drs. Mrochek and Boone provided new information regarding his impairment 

rating. 

On December 9, 2019 OWCP requested clarification from the DMA with regard to his 

September 30, 2019 report and whether new medical reports would alter his impairment rating. 

In a January 18, 2020 report, the DMA noted that there was no disagreement that appellant 

sustained an injury to his right ulnar nerve at the elbow secondary to blunt trauma with subsequent 

neurapraxia. He indicated, however, that the disagreement with other ratings was whether 

appellant had documented signs of compressive neuropathy. The DMA noted that none of the 

examiners performed elbow flexion test, which was a provocative test for the diagnosis of cubital 

tunnel syndrome. He explained that traumatic nerve injuries were rated using section 15.4(e) of 

the A.M.A., Guides. The DMA further explained that “impairment from traumatic injury to 

peripheral nerves is defined by the specific nerves involved, and the associated severity of sensory 

motor and deficits. This section is not used for nerve entrapments since nerve entrapments are not 

isolated traumatic events.” He opined that appellant’s impairment rating should be performed for 

contusion of the proximal ulnar nerve at the elbow using Table 15-21 for a peripheral nerve injury 

rather than entrapment. The DMA concluded that appellant had no ratable impairment.
4

By decision dated February 18, 2020, OWCP denied modification of the October 16, 2019 

decision.

In a March 5, 2020 report, Dr. Mrochek again disputed the DMA’s finding that appellant 

had no ratable impairment. He reported that appellant still experienced numbness and tingling in 

his right hand in the small and ring fingers, as well as tenderness at the right elbow. Dr. Mrochek

opined that the DMA continued to insist that the ulnar neuropathy appellant had experienced was 

not able to be rated in the entrapment/compression neuropathy. He diagnosed contusion of the 

right forearm and other specified mononeuropathies of the right upper limb. Dr. Mrochek 

concluded that appellant had a net adjustment of zero, equaling one percent permanent impairment 

of the right upper extremity. OWCP also received an illegible Form OWCP-5c of even date from

Dr. Mrochek. 

In a March 5, 2020 e-mail, appellant notified OWCP that Dr. Mrochek was unwilling to 

perform a flexion examination. He requested a new doctor. 

On March 31, 2020 appellant requested reconsideration. In a March 25, 2020 statement, 

he again requested a new doctor and also requested that someone other than the DMA review his 

appeal. 

On June 5, 2020 OWCP again requested clarification from the DMA with regard to his 

January 18, 2020 report and whether Dr. Mrochek’s March 5, 2020 report would alter his 

impairment rating. 

In a June 22, 2020 report, the DMA reported that Dr. Mrochek, in his March 5, 2020 report, 

failed to provide additional information that would change his impairment rating. He maintained 

that his January 18, 2020 impairment rating was accurate. 

By decision dated July 22, 2020, OWCP denied modification of the February 18, 2020 

decision.

In a July 3, 2020 statement, appellant noted that he was disagreeing with the DMA’s 

findings. He related his understanding that Dr. Mrochek was not utilizing or conducting OWCP

preferred examinations. Appellant reiterated his request to be evaluated by a different doctor and 

that a new DMA be assigned to review his claim for an impairment rating. 

OWCP received a form report from Dr. Mrochek, indicating that he disagreed with the 

DMA’s findings.

On December 31, 2020 appellant requested reconsideration. In a December 31, 2020 

statement, he again requested to be evaluated by a different doctor. Appellant contended that 

numerous documents and letters he submitted to OWCP were not appearing in his file. He

requested to have his claim evaluated by a different claims examiner. 

By decision dated January 20, 2021, OWCP denied appellant’s request for reconsideration 

of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 
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 own motion or on application. 3

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

provide evidence or 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. 4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens

and reviews the case on its merits.6 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.7

ANALYSIS

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

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

Appellant’s December 31, 2020 timely request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally, 

the Board finds that it did not advance a relevant legal argument not previously considered by 

OWCP. Consequently, appellant did not allege a relevant new legal argument and appellant is not 

entitled to further review of the merits of his claim based on either the first or second above -noted 

requirements under 20 C.F.R. § 10.606(b)(3).8

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

evidence not previously considered. The underlying issue in this case is medical in nature. 

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February11, 2019); W.C., 59 ECAB 372 (2008).

4

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).

5

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). Id. at Chapter 2.1602.4b.

6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

8

Supra note 6.
6

Appellant submitted a form report fromDr. Mrochek, indicating his disagreement with the DMA’s 

findings. While this evidence is new, it is not relevant, as it is substantially similar to prior 

evidence of record. Providing additional medical evidence that either duplicates or is substantially 

similar to evidence of record does not constitute a basis for reopening a case.9 As appellant failed 

to provide relevant and pertinent new evidence, he is not entitled to a merit review based on the 

third requirement under 20 C.F.R. § 10.606(b)(3).10

The Board accordingly finds that appellant has not met any of the three requirements under 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that OWCP properly 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 January 20, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 19, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

9 G.J., Docket No. 20-0071 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020).

10 Id.