R.S. and U.S. Postal Service, Frederick N. Weathers Post Office (Board decision, February 9, 2024)

ECAB final decision. The Board affirmed OWCP’s refusal to reconsider the claim. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal employee sought reconsideration of an earlier overpayment matter. The Board found that his request did not establish a legal error, present a new relevant legal argument, or provide qualifying new evidence. It affirmed OWCP’s refusal to reopen the merits.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Nonmerit reconsideration denial affirmed.
• Key point: The request did not meet the regulatory grounds for merit review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.S., Appellant
)
)
and ) Docket No. 23-1041
)
Issued: February 9, 2024
U.S. POSTAL SERVICE, FREDERICK N. )
WEATHERS POST OFFICE, St. Louis, MO, )
Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 1, 2023 appellant, through counsel, filed a timely appeal from a July 20, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision was a Board decision dated January 25, 2022, which became final after 30 days of issuance, and is not subject to further review. 2 As there was no merit decision by OWCP within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).
3
5 U.S.C. § 8101 et seq.
 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

This case has previously been before the Board. 4 The facts and circumstances as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts are as follows.

On September 26, 2014 appellant, then a 54-year-old city carrier, filed an occupational disease claim (Form CA-2) alleging that he developed degenerative joint disease in the left knee due to factors of his federal employment, including walking on concrete, ascending and descending stairs in cold weather for 30 years.5 OWCP accepted his claim for left knee medial osteoarthritis. It paid appellant wage-loss compensation on the supplemental rolls until September 23, 2014 when he returned to full-time, modified-duty work.

On July 23, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule award.

By decision dated March 15, 2016, OWCP granted appellant a schedule award for 20 percent permanent impairment of the left lower extremity. The schedule award ran for 57.6 weeks from August 12, 2015 through September 18, 2016.6

On October 31, 2016 appellant underwent left knee unicondylar arthroplasty.
On
February 8, 2017 he returned to part-time, modified-duty work.7

On May 15, 2017 appellant filed a Form CA-7 for an additional schedule award.

Appellant submitted a June 6, 2017 impairment rating report, wherein Dr. Neil Allen, a Board-certified neurologist and internist, utilized the diagnosis-based impairment (DBI) method to determine that, pursuant to the sixth edition of the American Medical Association, Guides to

4
Docket No. 22-1141 (issued April 18, 2023); Docket No. 21-0833 (issued January 25, 2022); Docket No. 20-0311 (issued July 8, 2020).
5
OWCP assigned the present claim OWCP File No. xxxxxx321. Appellant subsequently filed a traumatic injury (Form CA-1) claim for a left leg and head injury related to an October 3, 2017 employment incident. OWCP assigned that claim OWCP File No. xxxxxx721 and accepted it for left leg contusion and head laceration. It administratively combined appellant’s claims with the current claim serving as the master file. 6 In a February 22, 2016 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA), utilized Table 16-3, Knee Regional Grid, page 511, and assigned a class of diagnosis (CDX) of primary knee joint arthritis with a default value of 20 percent. 7 OWCP placed appellant on the periodic rolls, effective December 11, 2016.

2 the Evaluation of Permanent Impairment (A.M.A., Guides),8 appellant had 34 percent left lower extremity permanent impairment. 9

In an April 20, 2018 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as the DMA, reviewed Dr. Allen’s June 6, 2017 impairment rating report and concurred that appellant had 34 percent left lower extremity permanent impairment.

By decision dated September 18, 2018, OWCP granted appellant a schedule award for 34 percent permanent impairment of the left lower extremity. The award ran for 97.92 weeks from June 6, 2017 through April 22, 2019.

On April 23, 2019 OWCP requested a supplemental opinion from Dr. Harris in order to address appellant’s prior schedule award of 20 percent permanent impairment of the left lower extremity. In a May 1, 2019 addendum report, Dr. Harris indicated that, because appellant was previously awarded 20 percent permanent impairment for his left lower extremity, he was entitled to an increase of 14 percent permanent impairment for a total of 34 percent permanent impairment of the left lower extremity.

On September 16, 2020 OWCP requested that Dr. Harris, the DMA, clarify whether the 34 percent left lower extremity permanent impairment duplicated in whole, or in part, the prior impairment rating of 20 percent permanent impairment of the left lower extremity.

In a September 18, 2020 report, Dr. Harris opined that the 34 percent permanent impairment duplicated, in part, a portion of appellant’s prior award of 20 percent permanent impairment because both awards were for the same accepted condition of left knee osteoarthritis. He explained that appellant’s condition worsened after the initial schedule award. Dr. Harris noted that appellant also underwent surgery, which resulted in a greater impairment. Thus, he concluded that appellant had a total of 34 percent permanent impairment of the left lower extremity.

By decision dated September 21, 2020, OWCP corrected its September 18, 2018 decision and granted a schedule award for an additional 14 percent permanent impairment of the left lower extremity, resulting in a total of 34 percent permanent impairment of the left lower extremity. The award ran for 40.32 weeks from June 6, 2017 through March 15, 2018.

On October 1, 2020 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review, which was held on January 15, 2021.

By decision dated March 24, 2021, OWCP’s hearing representative affirmed the September 21, 2020 decision.

8
A.M.A., Guides (6 th ed. 2009).
9
Dr. Allen referenced Table 16-3, Knee Regional Grid, page 511, of the A.M.A., Guides, and noted that a CDX of status post tibial osteotomy with a poor result equated to a Class of 3 with a default value of 37 percent permanent impairment. After assigning grade modifiers and applying the net adjustment formula, he calculated that appellant had a final permanent impairment rating of 34 percent left lower extremity permanent impairment.

3
 Appellant appealed to the Board. By decision dated January 25, 2022, the Board affirmed the March 24, 2021 decision.

On May 18, 2022 appellant, through counsel, requested reconsideration. He submitted a printout of FECA Transmittal 22-06 issued on February 14, 2022 about Schedule Awards and Permanent Disability claims.

By decision dated July 18, 2022, OWCP denied appellant’s request for reconsideration of the merits of the claim, pursuant to 5 U.S.C. § 8128(a).

Appellant appealed to the Board. By decision dated April 18, 2023, the Board affirmed the July 18, 2022 decision.

On April 26, 2023 appellant, through counsel, requested reconsideration. He asserted that the issue was that the overpayment should have been voided.

By decision dated July 20, 2023, OWCP denied appellant’s request for reconsideration of the merits of his claim pursuant to 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 or her own motion or on application.10

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.11

A request for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought. 12 If it chooses to grant reconsideration, it reopens and reviews the case on its merits. 13 If the request is timely, but fails to meet at least one of the

10
5 U.S.C. § 8128(a); see A.N., Docket No. 20-1487 (issued March 19, 2021); L.D., Docket No. 18-1468 (issued February 11, 2019); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008). 11 20 C.F.R. § 10.606(b)(3); see S.K., Docket No. 22-0248 (issued June 27, 2022); see also L.G., Docket No. 09- 1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008). 12 Id. at § 10.607(a). The one-year period begins the 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 (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. 13 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

4 requirements for reconsideration, OWCP will deny the request for reconsideration without reopening the case for review on the merits. 14

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 did not show that OWCP erroneously applied or interpreted a specific point of law and did not advance a new and relevant legal argument not previously considered. In his April 26, 2023 reconsideration request, he asserted that the issue was that the overpayment should have been voided. The Board finds, however, that this argument is irrelevant to the underlying issue of whether appellant had established greater than 34 percent permanent impairment of the left lower extremity. 15 Consequently, the Board finds that he is not entitled to a review of the merits based on the first and second above-noted requirements under 20 C.F.R 10.606(b)(3). 16

Furthermore, appellant has not submitted evidence in support of his reconsideration request. Accordingly, he is not entitled to a review of the merits based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3). 17

Accordingly, the Board finds that appellant has not met any of the requirements enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied his request for reconsideration without reopening the case for review on the merits. 18

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).

14
Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
15
L.S., Docket No. 22-1238 (issued May 19, 2023); M.M., Docket Nos. 21-0482 & 21-1051 (issued April 19, 2023).
16
Supra note 13; K.F., Docket No. 19-1846 (issued November 3, 2020); D.T., Docket No. 20-0456 (issued September 1, 2020).
17
Supra note 14; S.T., Docket No. 23-0185 (issued July 28, 2023); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).
18
See C.C., Docket No. 22-1240 (issued June 27, 2023); D.R., Docket No. 18-0357 (issued July 2, 2018); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

5
 ORDER

IT IS HEREBY ORDERED THAT the July 20, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 9, 2024
Washington, DC

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

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

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

6