B.B. and U.S. Postal Service, Kenosha Post Office (Board decision, March 21, 2024)

ECAB final decision. The Board affirmed OWCP's refusal to reopen the schedule award claim for merit review and did not decide the underlying impairment rating. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A postal worker asked OWCP to reconsider a schedule award for five percent permanent impairment of her right arm. OWCP refused to reopen the claim. The Board found that the submitted medical reports either repeated earlier evidence or did not address whether the right arm impairment exceeded five percent. It affirmed the refusal to conduct a new merit review.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.606(b)(3) and 10.608.
• Outcome: Denial of merit reconsideration affirmed.
• Key point: Repeated or irrelevant medical evidence did not warrant reopening the impairment claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.B., Appellant
)
) Docket No. 23-0972
and ) Issued: March 21, 2024
)
U.S. POSTAL SERVICE, KENOSHA POST
)
OFFICE, Kenosha, WI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 5, 2023 appellant filed a timely appeal from a January 3, 2023 nonmerit1 decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from OWCP’s last merit decision on this issue, dated July 29, 2022, 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
Pursuant to the Board’s Rules of Procedure, an appeal is considered filed when received by the Clerk of the Appellate Boards. 20 C.F.R. § 501.3(f). However, when the date of receipt would result in a loss of appeal rights, the appeal will be considered to have been filed as of the date of the U.S. Postal Service postmark or other carriers date markings. Id. at § 501.3(f)(1). The 180th day following OWCP’s January 3, 2023 decision was Sunday, July 2, 2023. Because using July 5, 2023, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is June 28, 2023, rendering the appeal timely filed. Id. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that, following the issuance of the January 3, 2023 decision, and on appeal, appellant submitted additional evidence. 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 her schedule award claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On November 17, 1999 appellant, then a 45-year-old distribution clerk, filed a traumatic injury claim (Form CA-1) alleging that on May 15, 1999 she injured her lower spine when she lifted a large parcel out of a bulk mail container while in the performance of duty.4 OWCP accepted the claim for lumbosacral strain; lumbar intervertebral disc displacement without myelopathy; thoracic or lumbar neuritis or radiculitis, abnormality of gait, degeneration of lumbar or lumbosacral intervertebral disc; psychogenic pain; other synovitis and tenosynovitis of right upper extremity; other tenosynovitis of hand and wrist, right; lateral epicondylitis, right; brachial neuritis or radiculitis; and other psychogenic pain, right. On December 10, 2008 appellant underwent an OWCP-authorized laminectomy at L5 and foraminotomies at L4-5 and L5-S1. OWCP paid appellant wage-loss compensation on the supplemental and periodic rolls.

On July 12, 2019, appellant filed a claim for compensation (Form CA-7) for a schedule award.

By decision dated January 6, 2022, OWCP granted appellant a schedule award for an additional three percent permanent impairment of the right upper extremity for a total of five percent. The award ran for 9.36 weeks covering the period September 10 through November 14, 2021, and was based on the December 5, 2021 opinion of Dr. Michael M. Katz, a Board-certified orthopedic surgeon, serving as a district medical adviser (DMA).

On February 3, 2022 appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

By decision dated July 29, 2022, OWCP’s hearing representative affirmed the January 6, 2022 decision.

OWCP subsequently received additional evidence. In an after-visit summary dated August 17, 2022, Dr. Leonardo D. Montemurro, an attending family practitioner, indicated that appellant’s problem list included chronic radiculopathy; chronic lumbar herniated disc; chronic spinal stenosis; cervicalgia at C5-6, C6-7, degenerative disc disease (DDD), osteoarthritis, moderate stenosis; history of lumbar laminectomy; and lumbar and cervical DDD.

4
OWCP assigned the present claim OWCP File No. xxxxxx693. Appellant has a prior claim for an August 5, 1998 traumatic injury. OWCP assigned that claim OWCP File No. xxxxxx298 and accepted it for lumbosacral strain. On January 3, 2002 appellant filed an occupational disease claim under OWCP File No. xxxxxx131, which was accepted for right hand and wrist tenosynovitis, and right lateral epicondylitis. A December 13, 2016 traumatic injury claim, assigned OWCP File No. xxxxxx647 was accepted for right shoulder strain. By decision dated April 19, 2019, OWCP granted appellant a schedule award under OWCP File No. xxxxxx647 for two percent permanent impairment of the right upper extremity. It has administratively combined his claims, with OWCP File No. xxxxxx693 designated as the master file.

2
 In an undated letter, Dr. Francis Saigh, a Board-certified family physician, requested that OWCP accept a prior impairment rating. He further advised that she had reached maximum medical improvement (MMI) and her injuries yielded permanent impairment.

Copies of medical reports that were previously of record were resubmitted.

On October 4, 2022 appellant requested reconsideration of the January 6 and July 29, 2022 decisions. In support of her reconsideration request, she submitted an August 30, 2022 letter by Dr. Saigh, wherein he reiterated his request that OWCP accept appellant’s impairment rating, and his opinion that she had reached MMI and sustained permanent impairment due to her injuries.

Additionally, appellant submitted an August 31, 2022 letter by Dr. Montemurro.
Dr. Montemurro reiterated his opinion that appellant had 7 percent permanent impairment of the right elbow, 1 percent permanent impairment of the right wrist, 14 percent permanent impairment of the right lumbar spine and 3 percent permanent impairment of the right cervical spine, which was previously set forth in his May 27, 2021 progress note.

Appellant also resubmitted copies of Dr. Montemurro’s March 9, 2022 letter and May 27, 2021 progress note.

By decision dated January 3, 2023, OWCP denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a matter of right.5 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.6 One such limitation is that the request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.7

A timely request for reconsideration, including all supporting documents, must set forth arguments, and contain evidence that either: (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.8 When a timely request for reconsideration does not meet at least one of

5
5 U.S.C. § 8128(a).
6
20 C.F.R. § 10.607.
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 OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). 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 § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued February 20, 2020).

3 the above-noted requirements, OWCP will deny the request for reconsideration without reopening the case for a review on the merits.9

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of her schedule award claim, pursuant to 5 U.S.C. § 8128(a).

Appellant has neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law. Moreover, she has not advanced a relevant legal argument not previously considered. Consequently, appellant is not entitled to a review of the merits of her claim based on the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

In support of her request for reconsideration, appellant submitted medical evidence from Dr. Montemurro. In an August 31, 2022 letter, Dr. Montemurro reiterated his opinion that appellant had 7 percent permanent impairment of the right elbow, 1 percent permanent impairment of the right wrist, 14 percent permanent impairment of the right lumbar spine and 3 percent permanent impairment of the right cervical spine. However, this is the same opinion Dr. Montemurro expressed in his May 27, 2021 progress note. The Board has held that evidence that repeats or duplicates evidence already of record does not constitute a basis for reopening the merits of a claim.10 Dr. Montemurro’s August 17, 2022 after-visit summary, which listed appellant’s lumbar and cervical conditions, is new; however it does not directly address the underlying issue of the present case, i.e., whether the medical evidence of record is sufficient to establish greater than five percent permanent impairment of the right upper extremity. The Board has held that the submission of evidence or argument, which does not address the particular issue involved does not constitute a basis for reopening the merits of a claim.11 For these reasons, the Board finds that the medical evidence from Dr. Montemurro is insufficient to warrant further merit review.

Similarly, the newly-submitted letters of Dr. Saigh, in which he requested that OWCP accept appellant’s impairment rating and advised that she had reached MMI and sustained permanent impairment due to her employment-related injuries, is not relevant to the underlying issue because Dr. Saigh did not provide a permanent impairment rating. As such, this evidence is also insufficient to warrant a merit review.12

Appellant also resubmitted copies of Dr. Montemurro’s May 27, 2021 progress note and March 9, 2022 letter, and Dr. Gozon’s September 10, 2021 report. As noted above, evidence that repeats or duplicates evidence already of record does not constitute a basis for reopening the

9
Id. at § 10.608.
10
M.P., Docket No. 20-0814 (issued January 26, 2021); R.P., Docket No. 17-1383 (issued October 25, 2017);
S.J., Docket No. 08-2048 (issued July 9, 2009); James W. Scott, 55 ECAB 606 (2004).

11
Y.W., Docket No. 22-0341 (issued September 13, 2022); M.K., Docket No. 18-1623 (issued April 10, 2019);
Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

12
Id.

4 merits of the claim.13 Thus, appellant is not entitled to further review of the merits of her claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).14

The Board, therefore, 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.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of her schedule award claim, pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the January 3, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 21, 2024
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

13
Supra note 12.
14
Supra note 11.

5