United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.F., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Spokane, WA, Employer

__________________________________________

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Docket No. 21-1088

Issued: February 14, 2022

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 July 12, 2021 appellant filed a timely appeal from a February 17, 2021 nonmerit 

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

elapsed from the last merit decision, dated August 5, 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 over the merits of this case.

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).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 22, 2018 appellant, then a 54-year-old border patrol agent, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he fractured his right forearm when he was pulled 

off his horse while in the performance of duty. OWCP accepted the claim, assigned OWCP File 

No. xxxxxx467, for a strain of unspecified muscle, fascia, and tendons at the right shoulder and 

upper arm and a displaced transverse fracture of the shaft of the right radius. On August 3, 2018 

appellant underwent an OWCP-authorized subacromial decompression and rotator cuff repair of 

the right shoulder. He stopped work on May 23, 2018 and returned to work on October 23, 2018.

OWCP previously accepted that appellant sustained a right distal radius fracture on 

December 21, 2003, assigned OWCP File No. xxxxxx782.

By decision dated August 23, 2005, issued under OWCP File No. xxxxxx782, it granted 

appellant a schedule award for 13 percent permanent impairment of the right upper extremity.

In an October 26, 2019 impairment evaluation, Dr. Miguel Schmitz, a Board-certified

orthopedic surgeon, found that appellant had five percent permanent impairment due to his right 

rotator cuff tear using Table 15-5 on page 403 of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 He further 

found two percent permanent impairment due to his forearm fracture using Table 15 -4 on page 

399, for a combined impairment of seven percent permanent impairment of the right upper 

extremity.

On November 6, 2019 appellant filed a claim for a schedule award (Form CA-7) under 

OWCP File No. xxxxxx467. 

On December 19, 2019 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), concurred with Dr. Schmitz’ finding of seven percent 

permanent impairment of the right upper extremity. He noted that appellant had previously 

received a schedule award for 13 percent permanent impairment of the right upper extremity, and 

thus found that he had not sustained an increased impairment.

By decision dated February 7, 2020, OWCP denied appellant’s request for an increased 

schedule award. 

On March 3, 2020 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

In a report dated April 24, 2020, Dr. Schmitz advised that he had initially rated the extent 

of appellant’s permanent impairment considering only his right shoulder and right forearm injury. 

He noted that appellant also had a history of a right distal radius fracture which was treated with 

an open reduction and internal fixation. Dr. Schmitz provided range of motion (ROM) 

measurements for the right wrist and indicated that he had a moderate deficit in shoulder motion 

and some loss of forearm motion. He found five percent permanent impairment of the right upper 

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

extremity due to the rotator cuff tear under Table 15-5, two percent permanent impairment due to 

the right bone forearm fracture using Table 15-4, and nine percent permanent impairment due to 

post-traumatic osteoarthrosis of the distal radius according to Table 15-3 on page 397. Dr. Schmitz

combined the impairment ratings to find 16 percent permanent impairment of the right upper 

extremity.

Following a preliminary review, by decision dated May 27, 2020, OWCP’s hearing 

representative vacated the February 7, 2020 decision. The hearing representative remanded the 

case for OWCP to combine OWCP File Nos. xxxxxx782 and xxxxxx467, compare a rating due to 

loss of ROM with the diagnosis-based impairment (DBI) method, and refer the case for the DMA 

to review Dr. Schmitz’ April 24, 2020 report.

On June 19, 2020 Dr. Harris advised that appellant had previously received a schedule 

award for 13 percent permanent impairment and thus was not entitled to an increased impairment. 

He asserted that rating the impairment using the ROM method was not applicable. Dr. Harris

further indicated that he had not been provided with an impairment evaluation to review.

By decision dated August 5, 2020, OWCP denied appellant’s claim for an increased 

schedule award.

On December 1, 2020 appellant requested reconsideration. In an accompanying statement 

dated November 23, 2020, he asserted that Dr. Harris had failed to review Dr. Schmitz’ April 24, 

2020 report finding 16 percent permanent impairment of the right upper extremity. Appellant 

noted that the hearing representative had remanded the case for OWCP to consider all evidence, 

including Dr. Schmitz’ April 24, 2020 report. 

By decision dated February 17, 2021, OWCP denied appellant’s request for further review 

of the merits 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. 3

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.4

3

5 U.S.C. § 8128(a); see L.D., DocketNo. 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).

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).
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 improperly denied appellant’s request for reconsideration of 

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

On reconsideration, appellant contended that Dr. Harris, the DMA, failed to review the 

April 24, 2020 impairment evaluation from Dr. Schmitz in concluding that he had no more than 

the previously awarded 13 percent permanent impairment of the right upper extremity. He noted 

that OWCP’s hearing representative had instructed OWCP to considerDr. Schmitz’ April 24, 2020 

report on remand. In his June 19, 2020 report, Dr. Harris asserted that he had not been provided 

with an impairment evaluation to review. The Board thus finds that appellant’s argument is new 

and relevant to the underlying issue of the extent of appellant’s permanent impairment of the right 

upper extremity.8 The legal argument requires reopening of his claim for merit review pursuant 

to the second prong of 20 C.F.R. § 10.606(b).9

Consequently, the Board finds that OWCP improperly denied merit review pursuant to 20 

C.F.R. § 10.608. The case shall therefore be remanded to OWCP for consideration of the merits 

of appellant’s claim, to be followed by an appropriate merit decision.10

CONCLUSION

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

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

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the origina l 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); see alsoF.V.,Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R.,Docket No. 09-1655 (issued 

March 18, 2010).

8 K.N., Docket No. 20-1188 (issued July 20, 2021); J.H., Docket No. 20-1312 (issued April26, 2021).

9 K.N., id.

10 V.S., Docket No. 20-0502 (issued December 31, 2020).
5

ORDER

IT IS HEREBY ORDERED THAT the February 17, 2021 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: February 14, 2022

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