A.M. and U.S. Postal Service, Post Office, San Antonio, TX (Board decision, July 30, 2021)

ECAB final decision. The Board affirmed OWCP's refusal to reconsider A.M.'s request for a higher schedule award. The underlying impairment rating was not reviewed in this appeal. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A.M., a postal letter carrier with accepted hand conditions, sought reconsideration of an earlier schedule award decision. His new submissions included therapy notes, a referral for a functional capacity evaluation, and wrist strength findings. The Board found that none evaluated increased permanent impairment under the required edition of the A.M.A. Guides. He also offered no new relevant legal argument. The Board affirmed OWCP's refusal to reopen the claim for merit review.

Decision snapshot

• Authority: FECA reconsideration and schedule award rules.
• Outcome: May 14, 2020 denial of merit review affirmed.
• Key point: Evidence unrelated to the required impairment rating did not warrant reconsideration.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.M., Appellant
)
)
and ) Docket No. 20-1417
) Issued: July 30, 2021
U.S. POSTAL SERVICE, POST OFFICE,
)
San Antonio, TX, Employer
)
__________ )

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, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 13, 2020 appellant filed a timely appeal from a May 14, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days has elapsed from the last merit decision dated June 18, 2019 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 over the merits of this case.3

1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s oral argument request, he asserted that oral argument should be granted because he should have been referred for a second opinion evaluation of his permanent impairment. The Board, in exercising its discretion, denies his request for oral argument. The Board notes that it does not have jurisdiction over the merits of this claim. As such, the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. The oral argument request is therefore denied and this decision is based on the case record as submitted to the Board. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that OWCP received additional evidence following the May 14, 2020 decision. 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. 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 12, 2015 appellant, then a 57-year-old city letter carrier, filed an occupational disease claim (Form CA-2) alleging that he sustained bilateral hand injuries due to factors of his federal employment, including repetitive work duties which required grasping mail and parcels to case and deliver mail. He noted that he first became aware of his condition on January 5, 2015 and realized its relation to his federal employment on September 8, 2015. Appellant did not stop work. OWCP accepted the claim for bilateral carpal tunnel syndrome and bilateral thumb trigger finger. It paid appellant wage-loss compensation for intermittent periods of disability.

On November 14, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule award.

In support of his schedule award claim, appellant submitted a January 24, 2017 report from Dr. Mario Bustamante-Montes, a Board-certified orthopedic surgeon and anatomic and clinical pathologist. Dr. Bustamante-Montes opined that, pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 Table15-23, page 449, appellant had five percent permanent impairment of each upper extremity due to appellant’s accepted bilateral carpal tunnel syndrome and trigger finger. He explained that the rating was based on a QuickDASH disability score of 50 percent, a grade modifier for clinical studies (GMCS) of 1 for test findings of conduction delay, a grade modifier for functional history (GMFH) of 3 for history of constant symptoms, and a grade modifier for physical examination (GMPE) of 1 for physical examination findings. Dr. Bustamante-Montes concluded that appellant had a net adjustment of 0, equaling five percent permanent impairment of each upper extremity.

OWCP referred appellant’s medical record to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a district medical adviser (DMA). In a report dated February 4, 2019, Dr. Harris advised that he agreed with Dr. Bustamante-Montes’ assessment of five percent left upper extremity permanent impairment and five percent right upper extremity permanent impairment under the standards of the sixth edition of the A.M.A., Guides.

By decision dated June 18, 2019, OWCP granted appellant a schedule award for five percent right upper extremity permanent impairment and five percent left upper extremity permanent impairment. The award was for 31.2 weeks and the period of the award ran from January 22 through August 28, 2017.

On October 21, 2019 appellant requested reconsideration. In support of his request, he submitted physical therapy notes dated April 17 and 27, 2020, a functional capacity evaluation (FCE) referral, and a December 13, 2019 manual muscle strength wrist examination.

By decision dated May 14, 2020, OWCP denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

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

2
 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.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.8 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.9

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 request for reconsideration did not show that OWCP erroneously applied or interpreted a specific point of law or advance a new and relevant legal argument not previously considered. Thus, he is not entitled to a review of the merits of his claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

With his request for reconsideration, appellant provided physical therapy notes, a referral for an FCE, and a manual muscle wrist strength examination report. However, this evidence does not contain an evaluation of permanent impairment under the protocols of the sixth edition of the A.M.A., Guides. Therefore, it does not address the underlying issue of the present case, i.e., whether he submitted sufficient medical evidence to establish increased employment-related permanent impairment of a scheduled member or function of the body. The Board has held that the submission of evidence or argument which

5
5 U.S.C. § 8128(a); see J.D., Docket No. 19-1757 (issued April 15, 2020); 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). 6 20 C.F.R. § 10.606(b)(3); see J.D., id.; 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).
7
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 the merit 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 2.1602.4(b). 8 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
9
Id. at § 10.608(b).

3 does not address the particular issue involved does not constitute a basis for reopening a case.10 As such, appellant is not entitled to further review of the merits of his claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).11

The Board accordingly finds that appellant has not met 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.12

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 May 14, 2020 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 30, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

10
E.J., Docket No. 19-1509 (issued January 9, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
11
Supra note 7 at § 10.606(b)(3).
12
See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020); Susan A.
Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

4