United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.D., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

ALVIN C. YORK MEDICAL CENTER, 

Murfreesboro, TN, Employer 

__________________________________________ 

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Docket No. 16-0765 

Issued: August 23, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 7, 2016 appellant filed a timely appeal from a November 23, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

has elapsed from the last merit decision, dated August 29, 2014, and the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

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

501.3, the Board lacks jurisdiction to review the merits of the claim.

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a May 22, 2002 decision, the Board 

set aside a May 23, 2000 loss of wage-earning capacity determination, finding that OWCP did 

not establish that the modified part-time audiologist position, which appellant performed 

beginning September 9, 1997, fairly and reasonably represented her wage-earning capacity. The 

Board also found that OWCP improperly denied her request for reconsideration without 

conducting a merit review.2 On June 10, 2003 the Board affirmed an August 28, 2002 OWCP 

decision finding that appellant submitted insufficient medical evidence to establish that she 

sustained a recurrence of disability from October 1 to December 8, 1997 causally related to 

accepted bilateral carpal tunnel syndrome.3

 The facts and circumstances of the case as set forth 

in the Board’s prior decisions are incorporated herein by reference. 

Dr. Arendall performed a right carpal tunnel release on December 30, 2003 and a left 

carpal tunnel release on June 13, 2005, authorized by OWCP. Appellant remained off work and 

received compensation on the periodic rolls. 

On November 14, 2007 OWCP obtained a second opinion from Dr. John Lamb, a Boardcertified orthopedic surgeon, who diagnosed bilateral carpal tunnel syndrome. He opined that 

appellant could perform full-time work with no repetitive upper extremity motion, and lifting, 

pulling, and pushing limited to 25 pounds. 

OWCP prepared a statement of accepted facts (SOAF) on November 21, 2008, which 

noted the November 14, 1996 right and May 8, 1997 left carpal tunnel releases. It did not 

mention the December 3, 2003 right and June 14, 2005 left carpal tunnel releases. 

On January 13, 2009 OWCP obtained a second opinion regarding the duration and extent 

of the accepted depression from Dr. Deepak Patel, a Board-certified psychiatrist and neurologist. 

Dr. Patel diagnosed moderately severe major depressive disorder, and an anxiety disorder. He 

opined that both conditions continued to be work related. Dr. Patel found appellant able to work 

from a psychiatric standpoint, but cautioned that she was unable to use her hands due to carpal 

tunnel syndrome. 

OWCP obtained a second opinion on January 19, 2009 from Dr. H. James Weisman, a 

Board-certified orthopedic surgeon, who diagnosed severe bilateral carpal tunnel syndrome. 

Dr. Weisman opined that appellant could work four hours a day light duty with minimal hand 

movements. 

 2

 Docket No. 01-0647 (issued May 22, 2002). OWCP accepted that appellant, then a 43-year-old speech 

language pathologist and audiologist, sustained bilateral carpal tunnel syndrome in the performance of duty in 1995. 

Dr. Rex E.H. Arendall, an attending Board-certified neurosurgeon, performed an authorized right carpal tunnel 

release on November 14, 1996 and left carpal tunnel release on May 8, 1997. On October 15, 2001 OWCP granted 

appellant a schedule award for 22 percent permanent impairment of the right upper extremity and 13 percent 

permanent impairment of the left upper extremity, attributable to the accepted bilateral carpal tunnel syndrome. 

3

 Docket No. 03-0162 (issued June 10, 2003). 
3

On March 26, 2009 Dr. Arendall reviewed Dr. Weisman’s report at OWCP’s request, and 

opined that she was totally disabled from all work due to clinical findings and electrodiagnostic 

evidence of severe bilateral carpal tunnel syndrome.4

 Dr. Arendall reiterated on November 17, 

2010 that appellant was permanently disabled from all work.5

 Appellant remained off work. 

On November 8, 2013 OWCP obtained a second opinion from Dr. Steven D. Graham, a 

Board-certified orthopedic surgeon. Dr. Graham reviewed the medical record and the 

November 21, 2008 SOAF. On examination, he found no objective motor or sensory loss in 

either hand. Dr. Graham noted that appellant’s complaints of pain, paresthesias, and sensory loss 

were far out of proportion to her objective presentation. He attributed her apparent difficulties 

with stiffness and limited mobility in the hands and fingers to subjective, self-limiting behaviors. 

Dr. Graham also noted that appellant had a maximum two percent impairment of each arm due to 

carpal tunnel syndrome. He found her able to work full time with no restrictions. An OWCP 

medical adviser reviewed Dr. Graham’s report and found no impairment of both upper 

extremities. 

On November 11, 2013 OWCP obtained a second opinion from Dr. Casey C. Arney, a 

Board-certified psychiatrist. Dr. Arney reviewed the medical record and a SOAF. He related 

appellant’s account of anxiety among groups of strangers, panic attacks, and rumination about 

her symptoms. Dr. Arney noted that she was under psychiatric care and responding well to 

treatment. He diagnosed major depressive disorder, single episode, severe, and anxiety disorder 

not otherwise specified. Dr. Arney found appellant unable to work, noting that her psychiatric 

condition was debilitating, and made her unable to interact with the public or supervisors.6

 

By notice dated July 24, 2014, OWCP advised appellant that it proposed to terminate her 

wage-loss compensation benefits, as Dr. Graham opined that she could resume full duty and was 

thus no longer disabled for work. It afforded her 30 days to submit additional evidence or 

argument. 

Appellant responded by August 5, 2014 letter, contending that she was in the process of 

obtaining additional medical evidence. She also contended that the SOAF provided to 

Dr. Graham omitted her December 3, 2003 and June 14, 2005 surgeries. 

By decision dated August 29, 2014, OWCP terminated appellant’s wage-loss 

compensation benefits effective that date, finding that the accepted carpal tunnel syndrome had 

ceased without residuals. It accorded Dr. Graham the weight of the medical evidence. 

In an August 21, 2015 letter, received August 26, 2015, appellant requested 

reconsideration. She contended that the second opinion physicians did not fully consider the 

medical record, and that the November 21, 2008 SOAF provided to Dr. Graham omitted the 

December 3, 2003 right and June 14, 2005 left carpal tunnel releases. Appellant submitted 

 4

 January 15, 2009 electromyogram (EMG) and never conduction capacity (NCV) studies showed profound right 

carpal tunnel syndrome, severe left carpal tunnel syndrome, and left ulnar neuropathy with entrapment at the elbow. 

5

 September 10, 2010 EMG and NCV studies showed severe right and mild left carpal tunnel syndrome. 

6

 OWCP has not accepted an emotional condition as employment related. 
4

copies of medical evidence previously of record. She also provided a new report from 

Dr. Arendall. 

In an August 3, 2000 report, Dr. Arendall reviewed appellant’s history of injury and 

treatment. He opined that her diagnosis was “chronic, intractable carpal tunnel syndrome. 

[Appellant’s] condition ha[d] become static” and she did not completely recover. Dr. Arendall 

noted that he did not expect appellant’s condition would improve. He found her able to work for 

four hours a day with lifting limited to 25 pounds, and frequent changes of position. 

By decision dated November 23, 2015, OWCP denied reconsideration, finding that 

appellant’s August 21, 2015 letter and accompanying documents did not constitute new, 

relevant, or pertinent evidence. It found that Dr. Arendall’s August 3, 2000 report, although 

new, was repetitive of his reports previously of record and was therefore cumulative in nature. 

OWCP further found that the copies of evidence previously of record were duplicative, and 

therefore insufficient to warrant a review of the claim on the merits. 

LEGAL PRECEDENT 

To require the office to reopen a case for merit review under section 8128(a) of FECA,7

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides 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.8 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)(3), OWCP will deny the 

application for reconsideration without reopening the case for a review on the merits.9

 

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

evidence which may be necessary to discharge his or her burden of proof.10 Appellant need only 

submit relevant, pertinent evidence not previously considered by OWCP.11 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)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.12 

 7

 5 U.S.C. § 8128(a). 

8

 20 C.F.R. § 10.606(b)(3). 

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

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

11 See supra note 8. See also Mark H. Dever, 53 ECAB 710 (2002). 

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

ANALYSIS 

OWCP accepted that appellant sustained bilateral carpal tunnel syndrome. Appellant 

stopped work in August 1999 and did not return. She received wage-loss compensation benefits 

on the periodic rolls. On August 29, 2014 OWCP terminated appellant’s wage-loss 

compensation benefits effective that day, finding that the opinion of Dr. Graham, a Boardcertified orthopedic surgeon and second opinion examiner, established that the accepted carpal 

tunnel syndrome had ceased without residuals. 

Appellant requested reconsideration, contending that Dr. Graham did not consider the 

complete medical record and that the SOAF provided to him omitted February and June 2005 

carpal tunnel release surgeries. In support of her request, she provided copies of medical 

evidence previously considered by OWCP, and an August 3, 2000 report from Dr. Arendall, an 

attending Board-certified neurosurgeon, not previously of record. By decision dated 

November 23, 2015, OWCP denied reconsideration, finding that appellant’s letter and 

accompanying documents were cumulative or irrelevant. 

The Board finds that OWCP properly denied reconsideration as appellant’s argument was 

not relevant to the claim. The critical issue was the medical question of whether she had 

disabling residuals of the accepted bilateral carpal tunnel syndrome on and after 

August 29, 2014. Appellant’s letter is not medical evidence, and is thus irrelevant to the 

remaining issue. Therefore, it does not comprise a basis for reopening the case.13 The copies of 

medical evidence previously of record are duplicative. Likewise, OWCP had previously 

considered appellant’s argument regarding the SOAF. Evidence which is duplicative, 

cumulative, or repetitive in nature is insufficient to warrant reopening a claim for merit review.14 

The duplicate copies of medical evidence are therefore insufficient to warrant consideration on 

the merits. 

Dr. Arendall’s August 3, 2000 report is new medical evidence, not previously considered 

by OWCP. However, it is irrelevant to the claim as it significantly predates the termination of 

compensation benefits. It does not address appellant’s medical condition on or after 

August 29, 2014.15 Therefore, it does warrant a review of the merits of the claim. 

Appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). Therefore, 

pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

On appeal, appellant asserts that OWCP did not consider the totality of the medical 

record or provide a complete SOAF. These arguments pertain to the merits of the claim, which 

are not before the Board on the present appeal. 

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

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

15 See Edward Matthews DieKemper, 31 ECAB 224, 225 (1979) (the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case). 
6

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further merit review 

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

ORDER 

IT IS HEREBY ORDERED THAT the November 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board