United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.H., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD & 

INTERMEDIATE MAINTENANCE FACILITY, 

Bremerton, WA, Employer 

__________________________________________ 

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Docket No. 14-1824 

Issued: May 4, 2015 

Appearances: Case Submitted on the Record

Cathy C. Deno, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 19, 2014 appellant, through her representative, filed a timely appeal of a 

May 6, 2014 merit decision and an August 7, 2014 nonmerit decision of the Office of Workers’ 

Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 

case. 

ISSUES 

The issues are: (1) whether OWCP properly terminated appellant’s compensation for 

wage-loss and medical benefits effective May 6, 2014; and (2) whether OWCP properly refused 

to reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant argues that her right carpal tunnel condition has not resolved, that 

she cannot perform her usual employment duties, and that her surgery did not help her condition. 

FACTUAL HISTORY 

On November 22, 2011 appellant, then a 40-year-old student trainee (composite/plastic 

fabricator), filed an occupational disease claim alleging that on November 15, 2010 she first 

became aware of her carpal tunnel condition. However, she did not realize that the condition 

was related to her employment until November 19, 2011. On December 13, 2012 OWCP 

accepted the claim for right carpal tunnel syndrome and authorized right carpal tunnel release 

surgery, which was performed on June 5, 2013. By letter dated June 13, 2013, it placed 

appellant on the periodic rolls for temporary total disability. 

In an October 3, 2013 report, Dr. Kenneth R. Koskella, a Board-certified orthopedic 

surgeon, who performed the June 5, 2013 surgery, opined that appellant could return to work 

with no restrictions for the right hand. He noted that she should avoid constant use of vibratory 

tools as that could increase the possibility of a recurrence. A physical examination revealed 

minimal incisional tenderness, good grip strength, and no atrophy. 

The record reflects that by October 7, 2013 appellant had returned to her date-of-injury 

duty job full time with restrictions against constant use of vibratory tools. The employing 

establishment noted that it was awaiting more specific information on the restrictions on the use 

of vibratory tools. 

On October 30, 2013 OWCP received an October 3, 2013 work capacity evaluation 

(Form OWCP-5c) from Dr. Koskella who released appellant to her usual job with permanent 

restrictions of avoiding constant exposure to vibratory tools. Dr. Koskella noted that frequent 

use of vibratory tools was allowed. 

On December 3, 2013 OWCP issued a notice proposing to terminate her wage-loss 

compensation benefits. It based its finding on Dr. Koskella’s opinion, which released her to fullduty work and found that she was no longer totally disabled due to her accepted employment 

injury. 

On December 5, 2013 OWCP received a November 27, 2013 report from Dr. Marc I. 

Suffis, a treating Board-certified emergency room physician, who related seeing appellant for a 

follow-up visit on her carpal tunnel condition. A physical examination revealed positive 

Phalen’s and Tinel’s signs on the right and decreased median nerve distribution sensation. 

Dr. Suffis indicated that appellant “should avoid vibratory tools.... Her only limitation at the 

worksite is seldom use of vibratory tools.” 

On December 16, 2013 Dr. Suffis reported that appellant had increased symptomatology 

since returning to work. A physical examination revealed decreased bilateral median nerve 

distribution sensation, right positive Phalen’s sign, and a negative bilateral Tinel’s sign. 

Diagnosis included status post carpal tunnel release with persistent symptomatology. Dr. Suffis 

noted that appellant had been given some restrictions involving “wrist motion limited to an 

occasional basis and seldom vibratory tools.” 
3

On January 17, 2014 OWCP referred appellant for a second opinion evaluation with 

Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon, for an evaluation of her accepted 

right carpal tunnel syndrome condition. 

OWCP received a January 24, 2014 report from Dr. Suffis on February 6, 2014. 

Dr. Suffis related that appellant had carpal tunnel release surgery on June 15, 2013 and that, 

following her return to work, even without using vibratory tools, her symptomatology 

significantly increased. An examination revealed a positive Phalen’s sign with decreased median 

nerve distribution sensation. Dr. Suffis recommended a nerve conduction velocity study be 

performed to determine whether there was any evidence of an incomplete release. He reiterated 

that appellant was able to work, but that she should have seldom exposure to vibratory tools. 

In a February 11, 2014 health record, Dr. Richard B. Spinak, an examining physician, 

provided a history of appellant’s injury and that she was referred to him by Dr. Suffis for her 

complaints of chronic right hand numbness. Diagnoses included carpal tunnel syndrome and 

postsurgical state. Dr. Spinak indicated that appellant was released to work duty with restrictions 

and that he concurred with the assessment and plan provided by Dr. Suffis. 

Dr. Curcin, based on a review of the medical evidence, statement of accepted facts, and 

physical examination, diagnosed, in a February 14, 2014 report, right carpal tunnel syndrome 

with recurrent right hand symptoms. A physical examination revealed well healed right hand 

palm surgical scars, minimal discomfort over the carpal tunnel with percussion, ability to make 

full fist and open fingers completely, six millimeters right median two point discrimination, and 

greater than eight milimeters bilateral ulnar nerve distribution. Dr. Curcin reported appellant’s 

wrist range of motion to be 50 degrees bilateral dorsiflexion, 45 degrees right palmar flexion, 

and 55 degrees left palmar flexion. Based on a review of the diagnostic testing, he concluded 

that the right carpal tunnel condition had “resolved/improved.” Dr. Curcin related that appellant 

complained of recurrent symptoms following her return to light-duty work. However, based on 

electrodiagnostic findings in the record showing improvement following the surgery, he 

concluded that she had returned to baseline.2

 In a February 15, 2014 work capacity evaluation 

form, Dr. Curcin indicated that appellant was capable of returning to her date-of-injury job with 

no restrictions. 

On March 27, 2014 OWCP issued a new notice proposing to terminate appellant’s wageloss compensation and medical benefits based upon Dr. Curcin’s opinion. 

On April 7, 2014 Dr. Suffis reviewed Dr. Curcin’s February 14, 2014 report and 

concurred that appellant had reached maximum medical improvement, but based on the nerve 

 2

 Dr. Curcin, prior to completing his report, had referred appellant to Dr. Irfan A. Ansari, an examining Boardcertified physiatrist and internist, for additional diagnostic testing. In his February 25, 2014 electromyography 

report, Dr. Ansari reported an abnormal study, evidence of mild wrist right median neuropathy, no evidence of right 

ulnar neuropathy at the elbow or wrist, no evidence of generalized peripheral neuropathy or right brachial 

plexopathy, and no evidence of acute or active right cervical radiculopathy. In a March 11, 2014 addendum report, 

Dr. Ansari related that a comparison of the February 25, 2014 test with an earlier April 1, 2013 test showed that the 

median nerve conductions across the wrist appeared to “have actually improved.” Dr. Ansari stated that it was 

difficult to compare the February 25, 2015 test with one performed on February 1, 2012 as no combined sensory 

index calculation had been performed. Dr. Curcin’s report was based on these diagnostic studies. 
4

conduction studies obtained by Dr. Curcin which showed some mild residual evidence of median 

nerve neuropathy, he recommended that use of pneumatic and vibratory tools be limited to a 

seldom basis. 

By decision dated May 6, 2014, OWCP finalized the termination of appellant’s wage-loss 

compensation and medical benefits effective that day. It found that the weight of the medical 

evidence rested with Dr. Curcin’s opinion and supporting diagnostic evidence. 

Following the May 6, 2014 OWCP decision, additional medical evidence was received as 

set forth below. 

In a report electronically signed on April 30, 2014, Dr. Suffis noted that appellant was 

seen on April 23, 2014 at the request of OWCP to perform an impairment rating and diagnosed 

right carpal tunnel syndrome.3

 He noted that her subjective symptoms were greater than the 

objective findings although she had persistent abnormal nerve velocity conduction studies. 

Dr. Suffis indicated that appellant had reached maximum medical improvement and determined 

that she had a five percent right upper extremity permanent impairment using the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment. He 

reiterated his disagreement that she could return to her date-of-injury position with no 

restrictions. Dr. Suffis related that appellant continues to have evidence of carpal tunnel 

syndrome based on persistent symptomatology, examination findings, and electrodiagnostic 

studies. In concluding, he stated that his “opinions on work capacity are to facilitate job 

placement.” 

On May 15, 2014 an OWCP medical adviser reviewed and concurred with Dr. Suffis’ 

April 23, 2014 impairment rating. 

In an April 30, 2014 work capacity evaluation form (OWCP-5c), Dr. Suffis diagnosed 

right carpal tunnel syndrome and provided permanent work restrictions. 

In a May 1, 2014 report, listing Dr. Mark A. Malakooti, an employing establishment 

physician Board-certified in public health and general preventive medicine, as the provider and 

Michael Dalzell, a certified physician assistant, as taking vitals, history, and physical 

examination, Mr. Dalzell reported a diagnosis of right carpal tunnel syndrome and Dr. Malakooti 

stated that he agreed with the work restrictions set by Dr. Suffis. He noted that appellant was 

seen for assignment of permanent versus temporary work limitations and noted that she 

continued to have complaints of pain and occasional paresthesia in her right hand. 

In a May 1, 2014 dispensary permit signed by Mr. Dalzell updated appellant’s work 

restrictions until June 3, 2014. 

On May 1, 2014 appellant accepted a limited-duty job assignment for the period May 1 to 

June 3, 2014. 

 3

 OWCP was concurrently developing appellant’s claim for a schedule award. It awarded appellant five percent 

permanent impairment of the right upper extremity by decision dated May 27, 2014. That decision is not before the 

Board on appeal. 
5

On a May 1, 2014 report of work limitations form, the employing establishment 

authorized temporary work restrictions based on Dr. Suffis’ March 13, 2014 request for work 

limitations, which were to continue until June 3, 2014. 

On May 22, 2014 appellant requested reconsideration of the May 6, 2014 decision. In 

support of her request, she submitted an undated statement relating that she continued to have 

residuals and problems as a result of her carpal tunnel syndrome. Appellant noted that, as a 

result of her carpal tunnel syndrome, she has permanent work restrictions and that she is disabled 

from performing light-duty work. Lastly, she alleged that she is unable to return to her date-ofinjury job as it would cause further damage to her hand. 

On May 28, 2014 appellant was seen by David M. Trottman, a registered nurse (RN), for 

issuance of permanent work restrictions based on her right hand carpal tunnel sydrome. 

Mr. Trottman noted that appellant’s treating physician, Dr. Suffis, did not consider that she had 

reached maximum medical improvement. Appellant related that she still has pain and parathesia 

following her June 2013 carpal tunnel release surgery. 

On June 3, 2014 OWCP received a report of work limitations for temporary and 

permanent work restrictions requested by Dr. Suffis on March 13, 2014. Dr. Malakooti issued an 

authorization for the temporary work restictions on March 12, 2014 and Larry B. Smick, an 

employing establishment health clinic provider, authorized the permanent work restrictions on 

May 28, 2014. 

Also submitted on June 3, 2014 was a May 28, 2014 dispensary permit, wherein 

Mr. Trottman noted appellant had permanent restrictions. 

On May 29, 2014 appellant accepted a modified job offer based on her permanent work 

restrictions. 

By decision dated August 7, 2014, OWCP denied appellant’s request for reconsideration 

of the May 6, 2014 decision as the evidence submitted was insufficient to warrant further merit 

review. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.4

 After it has determined that, an 

employee has disability causally related to his or her federal employment, OWCP may not 

terminate compensation without establishing that the disability has ceased or that it is no longer 

related to the employment.5

 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.6

 4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

5 I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

6 See I.R., Docket No. 09-1229 (issued February 24, 2010); J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 

284 (1988). 
6

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability.7 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.8

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for right carpal tunnel syndrome. By decision dated 

May 6, 2014, it terminated her wage-loss compensation and medical benefits effective that day 

based on Dr. Curcin’s second opinion report. The Board finds that OWCP properly terminated 

these benefits. 

In his February 14, 2013 report, Dr. Curcin noted minimal discomfort over the carpal 

tunnel, ability to make full fist and open fingers completely, six millimeters right median twopoint discrimination, and greater than eight milimeters bilateral ulnar nerve distribution. Based 

on the objective evidence, he opined that her condition had “resolved/improved.” Dr. Curcin 

explained that the electrodiagnostic testing performed by Dr. Ansari on February 25, 2014 found 

no evidence of right ulnar neuropathy, and mild wrist right median neuropathy. In addition, 

Dr. Ansari stated that a comparison of the February 25, 2014 test and an April 1, 2013 test 

showed that appellant’s condition had actually improved. He noted that she complained of 

recurrent symptoms following her return to work. Dr. Curcin opined that objectively appellant’s 

work-related condition had resolved/improved as she had returned to baseline, and that she was 

capable of returning to work with no restrictions. 

The Board finds that Dr. Curcin’s opinion is well rationalized and represents the weight 

of the medical evidence regarding appellant’s accepted bilateral carpal tunnel syndrome. 

The Board notes that appellant’s surgeon, Dr. Koskella, also advised that appellant could 

return to work with no restrictions. On October 3, 2013 Dr. Koskella, who performed her June 5, 

2013 surgery, released appellant to work with no work restrictions involving her right hand. 

Dr. Suffis diagnosed status post carpal tunnel release with persistent symptomatology and 

provided work restrictions limiting appellant to seldom use of vibratory and pneumatic tools. 

Similarly, Dr. Spinak diagnosed carpal tunnel syndrome and postsurgical state and indicated that 

she was released to work with restrictions and that he concurred with the assessment and plan 

provided by Dr. Suffis. Neither Dr. Suffis nor Dr. Spinak provided an opinion as to whether 

appellant continued to have residuals of her accepted condition. Both physicians opined that she 

was capable of working with a limited restriction on vibratory and pneumatic tools, but provided 

no supporting rationale for this restriction. As neither Dr. Suffis nor Dr. Spinak provided any 

 7 A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 

677 (2005). 

8 B.K., Docket No. 08-2002 (issued June 16, 2009); Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 

660 (2003). 
7

rationale in support of their conclusion that appellant continued to have residuals from her 

accepted right carpal tunnel syndrome, their reports are of diminished probative value.9

The Board finds that OWCP properly terminated entitlement to wage-loss compensation 

and medical benefits effective May 6, 2014 as appellant no longer suffered from any residuals 

related to her accepted employment condition. Accordingly, its decision to terminate appellant’s 

compensation benefits is affirmed. 

On appeal, appellant disagrees with OWCP’s finding that she no longer had any residuals 

or disability due to her accepted right carpal tunnel syndrome and that she is unable perform her 

date-of-injury duties. As explained above, the Board finds that the medical evidence established 

that her accepted condition had resolved with no residuals. The record contains no physician’s 

opinion, with supporting rationale based on the objective evidence, that appellant continued to 

have residuals of the accepted employment condition. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously 

considered by OWCP.11 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.12 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.13 

 9 T.M., Docket No. 08-975 (issued February 6, 2009); T.F., 58 ECAB 128 (2006) (a medical report is of limited 

probative value on a given medical question if it is unsupported by medical rationale); see also S.D., 58 ECAB 713 

(2007) (the Board has held that a medical opinion not fortified by medical rationale is of little probative value). 

10 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application. 

11 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

12 20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 

657 (2006).

13 20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
8

ANALYSIS -- ISSUE 2 

Appellant’s May 22, 2014 request for reconsideration did not allege or demonstrate that 

OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not 

advance a relevant legal argument not previously considered by OWCP not previously 

considered by OWCP. Appellant merely reiterated that she continued to have residuals and 

disability as a result of her accepted right carpal tunnel syndrome. The underlying issue in the 

case, however, is whether she had further disability due to her accepted right carpal tunnel 

condition. Appellant’s lay opinion is not relevant to the medical issue in this case, which can 

only be resolved through the submission of probative medical evidence from a physician.14 

A claimant may be entitled to a merit review by submitting pertinent new and relevant 

evidence, but appellant did not submit any pertinent new and relevant medical evidence 

establishing continuing disability. Following the May 6, 2014 OWCP decision and in support of 

her request for reconsideration, she submitted medical and factual evidence including an 

April 20, 2015 work capacity evaluation form and an April 23, 2014 impairment report 

electronically signed on April 30, 2014 by Dr. Suffis. In the impairment rating, Dr. Suffis 

opined that appellant was unable to perform her date-of-injury job but opined that she could 

work with restrictions. The opinion and work restrictions expressed by Dr. Suffis are repetitive 

of the restrictions suggested in reports previously considered by OWCP. He offered no new 

explanation or rationale supporting his opinion regarding his conclusion as to appellant’s work 

restrictions and diagnosis of right carpal tunnel condition and did not suggest that appellant was 

unable to work. Evidence which is duplicative or cumulative in nature is insufficient to warrant 

reopening a claim for merit review.15

Appellant also submitted a May 15, 2014 impairment rating report by an OWCP medical 

adviser, a May 1, 2014 report listing Dr. Malakooti regarding work restrictions, a May 1, 2014 

dispensary permit signed by a certified physician assistant, updating work restrictions, 

appellant’s acceptance of a temporary limited-duty job assignment, report of work limitations 

forms, a May 28, 2014 report by Mr. Trottman regarding permanent work restrictions based on 

her right hand carpal tunnel and a May 28, 2014 dispensary permit by Mr. Trottman, and 

appellant’s acceptance of a modified job due to her work restrictions. This evidence while new 

is not relevant to the underlying issue in the case. None of the evidence submitted addresses the 

issue of whether appellant continued to have disability due to her accepted right carpal tunnel 

condition. The Board has held that the submission of evidence which does not address the 

particular issue involved does not constitute a basis for reopening a case.16

As appellant has not met any of the requirements for further merit consideration, the 

Board finds that she is not entitled to a review of the merits of her claim based on any of the 

 14 L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000). 

15 L.H., 59 ECAB 253 (2007); Denis M. Dupor, 51 ECAB 482 (2000). 

16 R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005) 
9

three requirements under section 10.606(b)(3). Thus, OWCP properly denied appellant’s 

May 22, 2014 request for reconsideration.17

CONCLUSION 

The Board finds that OWCP met its burden to terminate her wage-loss compensation and 

medical benefits effective May 6, 2014. The Board further finds that OWCP properly refused to 

reopen appellant’s case for reconsideration on the merits of her claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated August 7 and May 6, 2014 are affirmed. 

Issued: May 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 17 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); Candace A. Karkoff, 56 ECAB 622 (2005) 

(when an application for reconsideration does not meet at least one of the three requirements enumerated under then 

section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review 

on the merits).