United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.J., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

SCOTT AIR FORCE BASE, IL, Employer 

__________________________________________ 

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Docket No. 14-32 

Issued: May 21, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 15, 2013 appellant filed a timely appeal from an April 19, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying reconsideration. 

The most recent merit decision of record is dated November 23, 2011. There is no merit 

decision within 180 days of October 4, 2013, the date appellant filed her appeal with the Board. 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board does not have jurisdiction over the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration, 

under 5 U.S.C. § 8128(a). 

On appeal, appellant contends that the medical record establishes that the offered lightduty position exceeded her medical restrictions and functional limitations. She contends that 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

Dr. Nashed’s September 10, 2010 report returning her to light duty terminated on 

October 5, 2010.

FACTUAL HISTORY 

OWCP accepted that on or before April 1, 2009 appellant, then a 49-year-old office 

automation secretary, sustained an ulnar nerve lesion and reflex sympathetic dystrophy of the 

right upper extremity due to keyboarding and other repetitive motion at work. She stopped work 

on January 12, 2010. Other than a brief trial of work in September 2010, appellant did not return 

to work. She received compensation on the daily rolls through April 28, 2010 and on the 

periodic rolls commencing April 29, 2010. 

Dr. Rafat S. Nashed, an attending Board-certified orthopedic surgeon, performed an 

anterior transposition of the ulnar nerve at the right elbow on January 12, 2010. He held 

appellant off work through June 4, 2010 and described physical therapy.2

 

In a June 25, 2010 duty status report (Form CA-17), Dr. Nashed found appellant able to 

perform light-duty work, with no fine manipulation, reaching above the shoulder, driving a 

vehicle, operating machinery, pulling/pushing, kneeling, walking or climbing.3 On July 1, 2010 

the employing establishment offered appellant a full-time light-duty job within these restrictions. 

Dr. Nashed then submitted a July 9, 2010 report holding appellant off work. 

On August 17, 2010 OWCP obtained a second opinion from Dr. Robert Sciortino, a 

Board-certified orthopedic surgeon, who reviewed the medical record and a statement of 

accepted facts. On examination, Dr. Sciortino found weakness and stiffness throughout the right 

arm. He advised that appellant could perform limited duty without any use of the right upper 

extremity. 

In a September 10 and 14, 2010 reports, Dr. Nashed released appellant to light duty as of 

September 20, 2010, with no use of the right arm and no use of a headset. He prescribed use of 

“speaker [tele]phone only to answer [tele]phones.” In an October 1, 2010 report, Dr. Nashed 

related appellant’s account of reporting to work at the employing establishment the previous 

week, but that there was no work available within her restrictions.4

As the medical evidence demonstrated that appellant could perform light-duty work, 

OWCP referred her for vocational rehabilitation services on December 9, 2010, with the goal of 

reemployment at the employing establishment. 

                                                             2

 In a June 23, 2010 report, Dr. S. Vic Glogovac, an attending Board-certified orthopedic surgeon, noted that 

stellate ganglion blocks reduced the hypersensitivity in appellant’s right hand. He noted a positive flexed elbow test 

on the left, with decreased sensation in the ulnar dorsum. 

3

 On June 25, 2010 appellant filed a notice of recurrence of disability, asserting that she was still disabled for 

work. OWCP interpreted the form as a statement of continuing disability rather than a new claim for compensation 

4

 A December 8, 2010 functional capacity evaluation demonstrated that appellant could perform sedentary work. 
3

On January 25, 2011 the employing establishment offered appellant a full-time, 

permanent modified job offer as an office automation secretary. The duties included: answering 

telephone calls, greeting visitors, maintaining a meeting calendar, scheduling meetings and 

delivering mail within a medical clinic. The employing establishment would provide assistive 

technology such as speech recognition software and ergonomic accommodations to conform to 

her restrictions. The position was available beginning March 7, 2011. 

In a February 2, 2011 letter, appellant rejected the offered position as it was “demeaning” 

and exceeded her limitations. She enclosed portions of an application for disability benefits 

under the Social Security Act. 

By letter dated February 16, 2011, OWCP advised appellant that the offered position was 

found suitable work within the limitations provided by Dr. Nashed. It notified her of the penalty 

provision under section 8106(c) of FECA for refusing suitable work. OWCP afforded appellant 

30 days to either accept the offered position or provide valid reasons for her refusal. 

In a March 9, 2011 letter, OWCP advised appellant that it had received notice of her 

refusal of the job offer. It considered her reasons for refusal and found them unacceptable. 

OWCP afforded her 15 days in which to accept the position or appellant’s wage-loss 

compensation benefits would be terminated. It noted that no further reasons for refusal would be 

considered. In a March 16, 2011 letter, appellant requested an extension to respond. On 

March 31, 2011 the employing establishment confirmed that the position remained open and 

available. 

By decision dated March 31, 2011, OWCP terminated appellant’s monetary 

compensation benefits effective that day under 5 U.S.C. § 8106(c) on the grounds that she 

refused an offer of suitable work. It found that the modified position offered to her on 

January 25, 2011 conformed to Dr. Nashed’s restrictions. 

In an April 26, 2011 letter, appellant requested a telephonic oral hearing, held 

September 29, 2011. At the hearing, she asserted that, during a trial of work in September 2010, 

she merely sat and did not complete work tasks because no accommodations were provided. 

Appellant contended that the January 25, 2011 job offer was for a full-duty position that 

exceeded her medical restrictions. 

Appellant submitted Dr. Nashed’s April 23, 2010 note holding her off work due to reflex 

sympathetic dystrophy of the right arm, a December 21, 2010 request for a functional capacity 

evaluation and his March 24, 2011 report noting that she was not putting forth full effort in 

physical therapy. She also provided February and March 2011 physical therapy notes, 

correspondence with her elected representative, letters from her attorney, medical literature about 

reflex sympathetic dystrophy syndrome and 2010 timekeeping and financial records. 

By decision dated and finalized November 23, 2011, an OWCP hearing representative 

affirmed the March 31, 2011 termination. He found that the evidence did not establish that the 

January 25, 2011 job offer was not suitable work. The hearing representative further found that 

appellant’s arguments regarding the September 2010 trial of work were irrelevant to the job offer 

made on January 25, 2011. 
4

In a November 17, 2012 letter, appellant requested reconsideration. She asserted that the 

lack of accommodations during a September 2010 trial of work created confusion and angered 

senior managers. Appellant contended that the lack of accommodations also demonstrated that 

the January 25, 2011 light-duty job offer was actually for a full-duty position exceeding her 

restrictions. She submitted Social Security and Office of Personnel Management (OPM) forms 

and February and March 2011 physical therapy notes. In a March 7, 2011 report, Dr. Elbert H. 

Cason, a Board-certified surgeon, noted weakness and swelling in the right hand. Appellant also 

resubmitted copies of documents previously of record.5

By decision dated April 19, 2013, OWCP denied reconsideration on the grounds that the 

evidence submitted was either irrelevant to the suitable work issue or duplicative of evidence 

previously of record. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6

section 10.606(b)(2) of Title 20 of the Code of Federal 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) submit 

relevant and pertinent new evidence not previously considered by OWCP.7 Section 10.608(b) 

provides that when an application for review of the merits of a claim does not meet at least one 

of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the 

application for reconsideration without reopening the case for a review on the merits.8 

In support of a request for reconsideration, a claimant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.9 The claimant need 

only submit relevant, pertinent evidence not previously considered by OWCP.10 When 

reviewing an OWCP decision denying a merit review, the function of the Board is to determine 

whether OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.11 

                                                             5

 Appellant also submitted correspondence and OWCP letters from April 2012 to January 2013 regarding medical 

billing and coding matters. These documents are unrelated to appellant’s request for reconsideration. 

6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.606(b)(2). 

8 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

9 Helen E. Tschantz, 39 ECAB 1382 (1988). 

10 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

11 Annette Louise, 54 ECAB 783 (2003). 
5

ANALYSIS 

OWCP terminated appellant’s wage-loss compensation benefits effective March 31, 2011 

on the grounds that she refused a January 25, 2011 offer of suitable work conforming to 

restrictions provided by Dr. Nashed, an attending Board-certified orthopedic surgeon. Appellant 

requested a hearing, at which she contended that the job offer was not made in good faith as she 

was not accommodated during a September 2010 trial of work. OWCP affirmed the termination 

by decision issued November 23, 2011, finding that the additional evidence and argument did not 

establish that the January 25, 2011 job offer was not suitable work. 

Appellant requested reconsideration on November 17, 2012. OWCP denied 

reconsideration by decision issued April 19, 2013 on the grounds that the evidence submitted 

was cumulative or irrelevant. The Board finds that OWCP properly denied her request for 

reconsideration. 

In support of her request for reconsideration, appellant submitted a November 17, 2012 

statement reiterating her argument that the January 25, 2011 was not made in good faith as the 

employer did not provide accommodations in September 2010. She also submitted copies of 

medical reports and OWCP decisions previously of record and physical therapy notes repeating 

prior findings. The Board has held that evidence which is duplicative or cumulative in nature is 

insufficient to warrant reopening a claim for merit review.12 

Appellant also submitted Social Security and OPM forms. These documents are not 

relevant to the underlying issue as decisions of other federal agencies or governmental bodies are 

not dispositive to issues raised under FECA.13 Appellant also provided a March 7, 2011 report 

from Dr. Cason, a Board-certified surgeon, who noted weakness and swelling in the right hand. 

Dr. Cason did not address the January 25, 2011 job offer or her ability to perform the job. 

Therefore, his report is irrelevant to the suitable work issue in the claim.14

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

but appellant did not submit any new and relevant evidence in this case. The Board accordingly 

finds that she did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2). Appellant did 

not show that OWCP erroneously applied or interpreted a specific point of law, advance a 

relevant legal argument not previously considered by OWCP or submit relevant and pertinent 

evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied 

merit review. 

On appeal, appellant asserts that the medical record establishes that the offered light-duty 

position exceeded her medical restrictions and functional limitations. She contends that 

Dr. Nashed’s September 10, 2010 report returning her to light duty “terminated on 

                                                             12 Denis M. Dupor, 51 ECAB 482 (2000). 

13 A.C., Docket No. 12-1579 (issued December 13, 2012); Andrew Fullman, 57 ECAB 574 (2006). 

14 Joseph A. Brown, Jr., 55 ECAB 542 (2004). 
6

October 5, 2010.” These arguments pertain to the merits of the claim, which are not before the 

Board on the present appeal. 

CONCLUSION 

The Board finds that OWCP properly denied reconsideration. 

ORDER 

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

Compensation Programs dated April 19, 2013 is affirmed. 

Issued: May 21, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board