United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pittsburgh, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1353 

Issued: December 12, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 17, 2016 appellant, through counsel, filed a timely appeal of a March 14, 2016 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days has elapsed from the last merit decision, dated November 4, 2015, 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 to review the merits of the claim. 

 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

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

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

the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

On appeal counsel contends that there was an unresolved conflict of medical opinion 

evidence. 

FACTUAL HISTORY 

On July 26, 2005 appellant, then a 31-year-old mail processor, filed a traumatic injury 

claim (Form CA-1) alleging that on July 26, 2005 while in the performance of duty she 

dislocated her right shoulder pulling a heavy tray off the top of a cage. She underwent a right 

shoulder magnetic resonance imaging (MRI) scan on August 11, 2015 which demonstrated no 

fracture or dislocation, but moderate rotator cuff tendinitis. OWCP accepted her claim on 

October 19, 2005 for closed dislocation of the right shoulder. On December 1, 2005 appellant 

underwent right shoulder surgery to repair multidirectional instability with a Bankart lesion 

anteriorly and disruption of the posterior capsule, posterior and inferior. She returned to lightduty work on April 28, 2006. 

Appellant filed a recurrence of disability claim (Form CA-2a) on June 24, 2006, alleging 

that on June 22, 2006 she stopped work due to symptoms of her accepted right shoulder 

condition. On August 16, 2006 OWCP accepted a recurrence of disability and paid 

compensation. Appellant underwent an anterior inferior capsular shift and rotator interval 

closure surgery on September 25, 2006. OWCP expanded the accepted condition to include 

brachial neuritis or brachial plexopathy on the right on November 1, 2007. 

On September 10, 2009 appellant underwent a repeat anterior inferior shift and rotator 

interval closure on her right shoulder. In a report dated January 30, 2013, Dr. John M. Fenlin, a 

Board-certified orthopedic surgeon, and appellant’s attending physician, examined appellant and 

found that her right shoulder subluxed inferiorly at rest. He noted that she was capable of active 

elevation to 90 degrees and passive elevation to 150 degrees. Dr. Fenlin noted that appellant 

could be passively subluxed anterior, posterior, and inferior. On February 6, 2013 he opined that 

she was unable to work and that surgery was not recommended. Dr. Fenlin found that appellant 

could not reach, reach above the shoulder, twist, bend, stoop, operate a motor vehicle, perform 

repetitive movements of the wrists or elbows, push, pull, or lift, more than one pound and 

restricted her squatting, kneeling, and climbing. He recommended minimal use of the right 

upper extremity. 

OWCP referred appellant for a second opinion evaluation with Dr. Stanley Askin, a 

Board-certified orthopedic surgeon, on June 30, 2014. In a report dated July 11, 2014, Dr. Askin 

reviewed appellant’s history of injury and medical history including the accepted conditions of 

closed dislocation of the right shoulder and brachial plexopathy on the right. He performed a 

physical examination and noted that her right deltoid muscle was visibly atrophied and that her 

right humeral head was relatively anterior and interiorly subluxed compared with the left. 

Appellant had limited range of motion in her right shoulder. She had positive Phalen’s test, 

Tinel’s sign and Roos’ sign on the right which Dr. Askin found suggestive of carpal tunnel 
3

syndrome. Dr. Askin noted that appellant’s brachial plexus injury no longer appeared to be 

present. He diagnosed nonemployment-related carpal tunnel syndrome. 

Dr. Askin found that appellant continued to experience residuals of her accepted right 

shoulder condition which inhibited normal function of the right shoulder. He indicated that she 

could work with restrictions on movements of her right shoulder including using her right arm at 

or above shoulder height. Dr. Askin opined that appellant was capable of performing mediumduty work activities as long as she could keep her right arm against her side. He found that her 

right shoulder condition was permanent, but that her nonemployment-related carpal tunnel 

syndrome could be treated with surgery. Dr. Askin did not recommend any additional right 

shoulder surgery and found that appellant had reached maximum medical improvement. He 

provided work restrictions including no reaching above the shoulder with right arm and pushing, 

and pulling up to 10 pounds with her right arm. Dr. Askin indicated that appellant could lift up 

to 50 pounds with her right arm at her side. 

In a note dated December 4, 2014, Dr. Barbara Frieman, a Board-certified orthopedic 

surgeon, examined appellant’s right shoulder finding 30 degrees of forward elevation and 20 

degrees of abduction. She noted that appellant’s right humeral head sat anterior to the glenoid, 

and that she had a clearly dislocated shoulder. Dr. Frieman noted that appellant had some 

numbness and tingling in her median nerve distribution at rest because of her anterior 

dislocation. She examined right shoulder x-rays and found appellant’s right shoulder was 

anteriorly dislocated. Dr. Frieman diagnosed three failed instability operations, right shoulder 

with permanent anterior subluxation, and recurrent dislocation of the right shoulder. She opined 

that appellant was permanently disabled from work at the employing establishment. Dr. Frieman 

completed a work capacity evaluation (Form OWCP-5c) on December 4, 2014 finding appellant 

could not reach, reach above the shoulder, twist, bend, stoop, operate a motor vehicle, perform 

repetitive movements of the wrists or elbows, push, pull, or lift more than one pound, and 

restricted her squatting, kneeling, and climbing. 

The employing establishment provided an investigative memorandum to OWCP. OWCP 

referred the contents of this report to Dr. Askin on December 30, 2014 and requested a 

supplemental report. In a report dated January 16, 2015, Dr. Askin repeated his earlier findings 

and conclusions. On February 2, 2015 he reviewed the surveillance tapes and found that these 

presented evidence that appellant’s assertion of a painful right shoulder within constraints of 

motion was not a truthful presentation. Dr. Askin found that appellant had better function than 

she represented during his second opinion examination and could reasonably be expected to 

return to work without any imposed restrictions. 

On February 13, 2015 OWCP provided Dr. Askin with appellant’s date-of-injury position 

description and asked if she could perform the duties of this position. Dr. Askin opined that 

appellant could perform heavy work without restrictions. 

OWCP issued a notice of proposed termination on May 12, 2015 proposing to terminate 

appellant’s wage-loss compensation and medical benefits due to her accepted right shoulder 

conditions. It found, based on Dr. Askin’s reports, that appellant had no disability for work and 

no medical residuals requiring further treatment. OWCP allowed appellant 30 days for a 

response. 
4

Counsel responded on May 20, 2015 and requested an additional 30-day extension 

because he planned to provide additional medical evidence. No evidence was received within 

the time allotted. 

By decision dated July 2, 2015, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective July 2, 2015. 

Dr. Frieman examined appellant on June 25, 2015 and submitted notes diagnosing 

anterior dislocation of humerus and chronic instability of the right arm as well as pain in the 

shoulder joint. She found that appellant was totally disabled from any work involving her right 

upper extremity including repetitive reaching, lifting, pushing, or pulling. Dr. Frieman opined 

that appellant could not elevate her arm against gravity and found that she had some brachial 

plexus irritation associated with her subluxation. 

Counsel requested an oral hearing from OWCP’s Branch of Hearings and Review on 

July 8, 2015. Appellant testified at the oral hearing on September 15, 2015 and described the 

duties of her date-of-injury position. She noted that she had not viewed the surveillance video, 

but agreed that she mowed the lawn with pain. Following the oral hearing, appellant submitted a 

June 25, 2015 attending physician’s report (Form CA-20) from Dr. Frieman indicating that 

appellant was totally disabled. Dr. Frieman also completed a May 25, 2015 work capacity 

evaluation (Form OWCP-5c). 

In a letter dated October 22, 2015, counsel contended that Dr. Frieman’s June 25, 2015 

attending physician’s report created a conflict of medical opinion evidence with Dr. Askin’s 

reports. 

By decision dated November 4, 2015, OWCP’s hearing representative affirmed the 

July 2, 2015 termination decision finding that the weight of the medical opinion evidence rested 

with Dr. Askin. 

Counsel requested reconsideration on December 15, 2015. In support of this request, he 

submitted Dr. Frieman’s June 25, 2015 report and work restrictions as well as her work 

restriction evaluations and form reports dated December 3 and 4, 2014, and May 25, 2015. 

Counsel contended that there was a conflict of medical opinion evidence between Dr. Frieman 

and Dr. Askin requiring an impartial medical examiner to resolve. 

By decision dated March 14, 2016, OWCP declined to reopen appellant’s claim for 

consideration of the merits finding that she submitted repetitious evidence and argument in 

support of her request for reconsideration. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.3

 

Section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant may 

 3

 5 U.S.C. §§ 8101-8193, 8128(a). 
5

obtain review of the merits of the claim by submitting in writing an application for 

reconsideration which sets forth arguments or evidence and shows that OWCP erroneously 

applied or interpreted a specific point of law; or advances a relevant legal argument not 

previously considered by OWCP; or includes relevant and pertinent new evidence not previously 

considered by OWCP.4 Section 10.608 of OWCP’s regulations provides that when a request for 

reconsideration is timely, but does meet at least one of these three requirements, OWCP will 

deny the application for review without reopening the case for a review on the merits.5

 Section 

10.607(a) of OWCP’s regulations provides that to be considered timely an application for 

reconsideration must be received by OWCP within one year of the date of OWCP’s merit 

decision for which review is sought.6

ANALYSIS 

The Board finds that appellant submitted a timely request for reconsideration on 

December 15, 2015, within one year of the November 4, 2015 OWCP hearing representative’s 

decision. The Board further finds that appellant failed to submit relevant, new legal argument 

not previously reviewed in support of this request which would require OWCP to reopen 

appellant’s claim for consideration of the merits in accordance with 20 C.F.R. § 10.606(b)(3). 

In support of the December 10, 2015 request for reconsideration, counsel argued that 

Dr. Frieman’s June 25, 2015 note created a conflict with the reports of Dr. Askin, OWCP’s 

second opinion physician. The Board notes that this is not a new argument as counsel presented 

this contention on October 22, 2015 prior to the November 4, 2015 decision of OWCP’s hearing 

representative. As this argument has been previously considered by OWCP, it is repetitious or 

duplicative and, thus is insufficient to warrant further merit review.7 

The Board further finds that the medical evidence submitted in support of appellant’s 

December 10, 2015 request for reconsideration is repetitive or cumulative of the evidence in the 

record at the time of the November 4, 2015 decision. Counsel previously submitted work 

restriction evaluations as well as the June 25, 2015 report from Dr. Frieman before the 

November 4, 2015 decision of OWCP’s hearing representative. The documents dated 

December 3 and 4, 2014, May 25, and June 25, 2015 do not contain additional medical evidence, 

and are instead merely a restatement of Dr. Frieman’s findings and conclusions which were 

included in the record at the time of the last merit decision. As this evidence is repetitious, it 

cannot be considered new evidence and does not require OWCP to reopen appellant’s claim for 

consideration of the merits.8

 4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608. 

6 Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(October 2011). 

7 See P.O., Docket No. 15-0852 (issued September 28, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984). 

8 Id.
6

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). 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 

constitute relevant and pertinent evidence not previously considered. 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 claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the March 14, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 12, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board