that appellant's x-rays revealed underlying cervical spondylosis and osteoarthritis, diagnosed nerve root irritation secondary to cervical spondylosis; degenerative joint disease; cervical sprain and advised that it was his opinion that the July 16, 1985 employment injury aggravated appellant's underlying condition.

By letters dated June 12 and 13, 1986 and July 28, 1986, the Office notified appellant that his claim for repurchase of leave had been approved through March 3, 1986 and that leave used for the period August 26, 1985 through October 9, 1985 would be converted to continuation of pay. By a CA-1049 form letter dated July 29, 1986, the Office informed appellant that he had been placed on the automatic compensation rolls effective March 4, 1986.

The record shows that commencing July 1986 appellant underwent treatment and therapy at the Orthopedic Back Clinic at the University of Washington Hospital, Seattle, Washington.

In a July 22, 1986 report, Dr. Asta Bloze, Board-certified in physical medicine and rehabilitation and one of the clinic physicians, reported that there were "no hard neurologic findings" on physical examination of appellant and diagnosed "chronic neck pain with subjective numbness in the second and third digits of both hands." In an August 19, 1986 report, Dr. Bloze advised that appellant underwent a bone scan, electromyography study and repeat x-rays which were all reported as normal. In a September 16, 1986 duty status report, Dr. Bloze advised that appellant was able to resume work subject to restrictions on lifting items weighing 50 to 100 pounds. In a report dated December 23, 1986, Dr. Martin Mankey, a Board-certified orthopedic surgeon with the University of Washington Hospital, advised the Office as follows:

"[Appellant] has been followed in the [clinic] over the past six months. He apparently has been evaluated down there recently and found to be fit to return to his duties and, according to him, has been asked to return to work on December 29, 1986. The patient is currently under our therapy program which will not be completed for another four to six weeks at which time our complete evaluation would be available and will be sent to you. The patient requests that he not return to work until the evaluation is completed, as he feels he is unable to carry his load."

On March 3, 1987, the Office referred appellant, together with his case record, which included the position description of a merchant seaman, a statement of accepted facts and a list of specific

questions, to Dr. Richard McCullough, a Board-certified orthopedic surgeon, for a second opinion examination and evaluation. Dr. McCullough examined appellant on April 7, 1987 and, in a report of the same date, reviewed the history of appellant's July 16, 1985 employment injury, reported findings on examination and diagnosed: “(1) traumatic amputation, fifth finger, left hand unrelated to incident of July 16, 1985; and (2) degenerative changes, cervical spine, C5-6 reported in the record to be mild (no x-rays available for review) unrelated to incident of July 16, 1985." Dr. McCullough concluded his report as follows:

"No other orthopedic conditions are noted at the time of this physical examination or in the records supplied which can be directly related to the July 16, 1985 injury. His limitations are all on the basis of pain and are not felt to be supportable by any objective organic pathology. There is no condition which would require restrictions or would preclude [appellant] from performing his duties as a seaman from an orthopedic standpoint."

By a report of termination of disability dated June 11, 1987, the employing establishment advised the Office that appellant returned to work on April 7, 1987 and resumed his regular duties.

By notice of proposed termination of compensation dated June 19, 1987, which incorporated a memorandum summarizing the evidence, the Office advised appellant that it proposed to terminate his compensation benefits on the basis that the weight of the medical evidence of record established that his disability causally related to the July 16, 1985 employment injury had ceased. The Office advised appellant that if he disagreed with its proposed action he may submit evidence or argument relevant to the matter at issue and further advised that such evidence or argument must be submitted within 30 days from the date of the Office's letter. The Office stated that if no response was received within the 30-day period, the Office would proceed to terminate his compensation. The record shows that appellant did not respond to the Office's June 19, 1987 notice.

By compensation order dated July 31, 1987, the Office terminated appellant's compensation benefits effective August 2, 1987 on the ground that the weight of the medical evidence established that his employment-related disability had ceased. The appeal rights accompanying this order included the right to request reconsideration by

the Office and, with respect to this right, the Office advised appellant in relevant part as follows:

"If you have additional evidence which you believe is pertinent, you may request, in writing, that OWCP reconsider this decision. Such a request must be made within one year of the date of the decision, clearly state the grounds upon which reconsideration is being requested and be accompanied by relevant evidence not previously submitted, such as medical reports or affidavits, or a legal argument not previously made. (Emphasis added)

* #11

By letter dated August 26, 1987, appellant requested reconsideration, and, in support of his request, submitted an undated report of Dr. Abiog who reported findings pertaining to a July 24, 1987 examination of appellant, advised that cervical spine x-rays showed more osteoarthritic and spondylitic changes on C5-C7 vertebrae with significant narrowing of the C6-C7 and C5-C6 neural foramina especially on the right and stated that it was his opinion that appellant was unable to perform the duties of a merchant seaman. Dr. Abiog did not submit a diagnosis or render an opinion on causal relationship. Dr. Abiog enclosed with his report the August 6, 1987 radiology report pertaining to appellant's cervical x-rays.

By compensation order dated October 2, 1987, the Office denied appellant's request for reconsideration on the basis that the report of Dr. Abiog, which failed to address the issue of causal relationship, was insufficient to warrant reopening appellant's case for a merit review of his claim. In the appeal rights accompanying the compensation order, the Office advised appellant that he had the right to request reconsideration by the Office or to appeal to the Employees' Compensation Appeals Board. The Office informed appellant that a request for reconsideration must be made within "one year of the date of the decision."

By letter dated November 15, 1988, appellant requested reconsideration and, in support of his request, submitted the July 21, 1988 report of Dr. Don M. Hopwood, a Board-certified family practitioner, who reviewed the history of appellant's July 16, 1985 employment injury, reported findings on examination and concluded as follows:

"My impression is that this man has quite dramatic capsulitis at multiple joint levels in the thoracic spine with secondary myofascial problems as well as restriction in the neck of capsu

lar and myofascial component combined. It more probably than not is directly related to his accident as his symptomatology dates back to that and he was entirely functional and was doing heavy work up until that time. He has not had a TENS unit, he has not had a CAT [computerized axial tomography] scan or MRI [magnetic resonance imaging] of the cervical spine and I did not have the opportunity to review x-rays today as none were presented.

"It is my opinion that this man is significantly disabled at this point in time and would gradually deteriorate and become more disabled should these treatments not be initiated."

By decision dated December 14, 1988, which incorporated a memorandum summarizing the evidence, the Office denied appellant's request for reconsideration on the ground that his application for review was not timely filed. The Office stated as follows:

"Section 10.138(b) of the Code of Federal Regulations limits the claimant's right to reconsideration to one year following the issuance of a decision. In this case, the claimant requested reconsideration more than a year after the October 2, 1987 decision.

"Section 10.138(a) provides that the Office may review a decision at any time on the Director's own motion usually to correct an error which comes to light after the original decision was made. If a claimant should produce clear evidence of error on the Office's part after the one-year limitation has expired, the application should be denied as not timely filed under section 10.138(b). However, the Office should reopen the case in order to correct the demonstrated error and issue a modification under section 10.138(a).

"Dr. Hopwood's medical report was reviewed. He fails to provide a well-reasoned medical report explaining how the present findings on examination are related to the employment injury. He relates the claimant's condition to the employment injury on a temporal relationship. This is not medical reasoning and does not represent clear evidence of error."

Because more than one year has elapsed from the date of the Office's last merit decision, the July 31, 1987 decision, to the date of filing of appellant's appeal with the Board on January 18, 1989, the Board lacks jurisdiction to review the July 31, 1987 decision which terminated appellant's compensation benefits on the ground that his employment-related disability ceased no later than April 7,

1987.' The Board also lacks jurisdiction to review the October 2, 1987 decision of the Office which denied appellant's request for reconsideration on the ground that the July 24, 1987 report of Dr. Abiog was insufficient to require the Office to reopen appellant's claim for a merit review under 5 U.S.C. § 8128(a).2 The only decision which the Board may review on appeal is the December 14, 1988 decision of the Office which denied appellant's request for reconsideration on the ground that his request for reconsideration was not timely filed. Since this decision is not a merit decision, the only issue before the Board is whether the Office, by its December 14, 1988 decision, abused its discretion in refusing to reopen appellant's case for a merit review under 5 U.S.C. § 8128(a) on the basis that appellant's application for review was not timely filed in accordance with 20 C.F.R. § 10.138(b)(2).

The Board finds that the refusal of the Office of Workers' Compensation Programs to reopen appellant's claim for further consideration of the merits of his claim under 5 U.S.C. § 8128(a), on the basis that appellant's request for reconsideration was not timely filed within the one-year time limitation period set forth in 20 C.F.R. § 10.138(b)(2), did not constitute an abuse of discretion.

3

Section 8128 of the Federal Employees' Compensation Act 3 does not give a claimant a right upon request or impose a requirement upon the Office to review a final decision of the Office awarding or denying compensation. Section 8128(a) of the Act, which pertains to review, vests the Director of the Office 5 with the discretionary authority to determine whether the Office will review a claim following issuance of a final Office decision. Section 8128(a) of the Act states as follows:

1See 20 C.F.R. § 501.3(d)(2); see also Herbert E. Widincamp, 32 ECAB 1090 (1981).

Id.

$5 U.S.C. §8128.

*Compare 5 U.S.C. § 8124(b)(1) which entitles a claimant to a hearing before an Office hearing representative as a matter of right provided that the request for a hearing is made within 30 days of a final Office decision and provided that the request for a hearing is made prior to a request for reconsideration. Section 8124(b)(1) provides in relevant part as follows: "Before review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of this section is entitled, on request made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a representative of the Secretary...."

"The Director of the Office is the designated representative of the Secretary of Labor with respect to administration of the Act. 5 U.S.C. §8145 states as follows: "The Secretary of Labor shall administer, and decide all questions arising under, this subchapter. He may—(1) appoint employees to administer this subchapter; and (2) delegate to any employee of the Department of Labor any of the powers conferred on him by this subchapter." Pursuant to 5 U.S.C. § 8145, the Secretary of Labor has delegated responsibility for administering the provisions of the Federal Employees' Compensation Act, except for 5 U.S.C. § 8149 which pertains to the Employees' Compensation Appeals Board, to the Director of the Office of Workers' Compensation Programs and his or her designees. See 20 C.F.R. § 10.2.