United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer 

__________________________________________ 

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Docket No. 16-0425 

Issued: April 21, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 January 4, 2016 appellant, through counsel, filed a timely appeal from an August 7, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from the last merit decision of January 13, 2014 to 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 over the merits of this claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s November 19, 2014 

reconsideration request under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On March 1, 2013 appellant, then a 57-year-old postmaster, filed an occupational disease 

claim (Form CA-2) alleging that she developed tenosynovitis as a result of her employment. She 

 1

 5 U.S.C. § 8101 et seq.
2

first became aware of her condition and realized it resulted from her employment on 

September 9, 2011. Appellant described the various surgeries she had undergone and the 

treatment she received. Her supervisor indicated on the claim form that appellant stopped work 

on May 19, 2012.2

Appellant received treatment from Dr. Gregory Cush, a Board-certified orthopedic 

surgeon, for complaints of gradually worsening, persistent shoulder and wrist pain. In progress 

notes dated January 31 to May 31, 2012, Dr. Cush reviewed appellant’s medical history and 

provided findings on physical examination. 

In a June 3, 2012 report, Dr. Timothy P. Duffey, an osteopath who specializes in 

orthopedic surgery, examined appellant for complaints of continued right shoulder pain. He 

reviewed her diagnostic reports and recommended that she modify her activities. 

Appellant was examined by Dr. Chuck Kerr, an osteopath specializing in orthopedic hand 

surgery, who indicated in a June 12, 2012 report that he was providing a consultation for 

appellant following carpal tunnel release surgery. Dr. Kerr reviewed appellant’s medical history 

and diagnostic reports. He noted his examination findings and diagnosed multifactorial 

numbness, arthritis, and flexor carpi radialis tendinitis. Dr. Kerr recommended that appellant 

undergo a magnetic resonance imaging (MRI) scan examination. 

Dr. Desmond Stutzman, an osteopath who specializes in orthopedic surgery, also treated 

appellant. In letters dated October 17, 2012 to May 24, 2013, he informed Dr. Duffey that 

appellant was status post tenovaginotomy of the right flexor carpi radialis. Dr. Stutzman 

recommended that appellant avoid any lifting, pushing, or pulling that caused pain. He reviewed 

appellant’s history and provided examination findings. Dr. Stutzman diagnosed right carpal 

tunnel syndrome, status post carpal tunnel release, right wrist pain with evidence of flexor carpi 

radialis tenosynovitis, and right thumb early degenerative arthritis. He recommended that 

appellant continue with physical therapy. In an April 23, 2013 return to work note, Dr. Stutzman 

indicated that appellant had a follow-up appointment on May 1, 2013. He also provided duty 

status reports (Form CA-17) which indicated that appellant could work with restrictions. 

In a March 7, 2013 letter, Michael B. Alter, a human resource management specialist at 

the employing establishment, controverted appellant’s claim. He reported that Dr. Stutzman’s 

report did not indicate that appellant’s right flexor carpi radialis was related to her employment. 

Mr. Alter further noted that appellant had not worked since November 29, 2011. 

By letter dated March 18, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish her claim. It requested that she provide a detailed description of her 

employment duties and answer specific questions regarding her employment. OWCP also 

requested that she provide a narrative medical report from her physician, which included his 

opinion based on medical rationale as to how her work activities caused or contributed to her 

medical condition. Appellant was afforded 30 days to submit this evidence. 

 2

 Appellant has previously accepted occupational disease claim (File No. xxxxxx726) for right carpal tunnel 

syndrome and a traumatic injury claim (File No. xxxxxx228) for an October 13, 2011 employment injury. 
3

On April 1, 2013 OWCP received appellant’s response to its March 18, 2013 

development letter. Appellant described her employment activities and the medical treatment 

she had received for her alleged medical condition, including carpal tunnel release surgery on 

May 13, 2011. She also noted her hobbies and explained the development of her right hand and 

wrist condition. 

Appellant provided attending physician’s reports (Forms CA-20) dated May 2 and 24, 

2013 by Dr. Robert J. Nowinski, an osteopath who specializes in orthopedic surgery. 

Dr. Nowinski noted a date of injury of May 11, 2007 and provided his examination findings and 

treatment. He indicated by check mark “yes” that appellant’s condition was caused or 

aggravated by the employment activity of constantly repetitive daily work. Dr. Nowinski noted 

that appellant was unable to work from April 18 to July 18, 2013. 

In a decision dated June 25, 2013, OWCP accepted appellant’s employment duties as a 

postmaster and her diagnosis of right carpal tunnel syndrome and wrist tenosynovitis. However, 

it denied her claim as she had not submitted sufficient medical evidence to establish that her 

medical conditions were causally related to factors of her employment. 

On July 1, 2013 OWCP received appellant’s request, through counsel, for a telephone 

hearing before an OWCP hearing representative, which was held on November 25, 2013. The 

hearing representative described appellant’s previously accepted claim for bilateral carpal tunnel 

syndrome and appellant explained that she filed a new claim because her doctor informed her 

that her current condition was a new injury. Appellant indicated that she stopped work on 

January 11, 2012 and was in a leave-without-pay status until June 2013 when she retired due to 

disability. She described her repetitive duties as a postmaster, the pain and discomfort she 

experienced in her upper extremities, and she reviewed the medical treatment that she received. 

Dr. Stutzman provided additional notes dated June 21 and August 7, 2013 which noted 

that appellant was status post flexor carpi radialis debridement. He related that appellant had an 

incident where she had a fall, caught herself, and reinjured her wrist. Dr. Stutzman 

recommended that she modify her activities. He also provided a July 29, 2013 attending 

physician’s report. 

Appellant submitted a June 21, 2013 decision of the Social Security Administration 

(SSA) which approved her request for disability retirement. She also provided a June 11, 2013 

letter from the Office of Personnel Management (OPM), which noted that she was disabled from 

her position as a postmaster due to carpal tunnel syndrome. 

In a November 14, 2013 letter to appellant’s counsel, Dr. Duffey related that appellant 

sustained an acute onset lifting injury on May 11, 2007, which persisted and increased in severity 

over the years. He reviewed the medical treatment that she received and described the May 11, 

2007 employment incident. Dr. Duffey opined that appellant had established a causal 

relationship. 

By decision dated January 13, 2014, an OWCP hearing representative affirmed the 

June 25, 2013 decision. 
4

By letter received on November 19, 2014, appellant, through counsel, requested 

reconsideration and submitted additional evidence. In reports dated November 6, 2013 and 

May 21, 2014, Dr. Stutzman noted appellant’s complaints of continued pain in her flexor carpi 

radialis and related that she previously undergone tenovaginotomy of her flexor carpi radialis. 

Upon examination, he observed some swelling and pain with palpation, pain with resisted wrist 

flexion, and pain with palpation of flexor carpi radialis. Dr. Stutzman reported that the radial, 

ulnar, and median nerves were intact to both sensory and motor function. He noted no instability 

at the wrist, flexor carpi radialis, and distal radioulnar joint. Carpal compression test and 

Phalen’s maneuver were positive. Dr. Stutzman reviewed appellant’s history and noted that 

x-rays of the right wrist and thumb showed evidence of mild degenerative changes. He 

diagnosed left carpal tunnel syndrome, left ulnar nerve neuropathy at the elbow, and continued 

pain in the right flexor carpi radialis status post tenovaginotomy. Appellant resubmitted 

Dr. Stutzman’s notes dated June 21 and August 7, 2013. 

Appellant provided an attending physician’s report dated February 11, 2012 from 

Dr. Stutzman. Dr. Stutzman noted a date of injury dated September 9, 2011 and a history of 

injury of carpal tunnel release surgery in 2011 with continuous repetitive work. He checked a 

box “yes” that appellant’s condition was caused or aggravated by an employment activity of 

constant, repetitive work. Dr. Stutzman indicated that appellant was totally disabled beginning 

January 31, 2013 and partially disabled beginning March 31, 2013. 

By decision dated August 7, 2015, OWCP denied further merit review of appellant’s 

claim. It determined that the evidence submitted was repetitive and substantially similar to 

evidence previously submitted. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation.3 OWCP’s regulations provide that OWCP may 

review an award for or against compensation at any time on its own motion or upon application. 

The employee shall exercise her right through a request to the district office.4

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied 

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

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

considered by OWCP.5

 

 3

 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008). 

4

 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

5 Id. at § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 
5

A request for reconsideration must also be received within one year of the date of the 

OWCP decision for which review is sought.6 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.7

 If the request is timely, but fails 

to meet at least one of the requirements for reconsideration, OWCP will deny the request for 

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

ANALYSIS 

The Board finds that appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law, advanced a relevant legal argument not previously considered 

by OWCP, or submitted relevant and pertinent new evidence not previously considered by 

OWCP. 

Appellant alleged that she sustained a right wrist and hand condition as a result of her 

repetitive employment duties as a postmaster. In decisions dated June 25, 2013 and January 13, 

2014, OWCP denied her claim as she had not submitted sufficient medical evidence to establish 

that her medical conditions were causally related to factors of her employment. On 

November 19, 2014 OWCP received appellant’s request, through counsel, for reconsideration. 

Along with her reconsideration request, appellant submitted various medical reports by 

Dr. Stutzman including his notes dated June 21 and August 7, 2013. These reports are 

insufficient to warrant further merit review because these reports were previously considered by 

OWCP. The Board has found that submission of evidence which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case.9

 

Appellant also submitted reports dated November 6, 2013 and May 21, 2014 and a 

February 11, 2014 attending physician’s report from Dr. Stutzman, which were not previously 

considered by OWCP. Although these medical reports were not previously considered by 

OWCP, the Board finds that they are insufficient to warrant further merit review of appellant’s 

case as they are substantially similar to medical reports previously reviewed. The Board has 

found that evidence which is duplicative or cumulative in nature is insufficient to warrant 

reopening a claim for merit review.10 Accordingly, OWCP properly denied further merit review 

of appellant’s claim. 

As found, appellant did not satisfy any of the criteria to warrant a merit review by 

OWCP. Because she did not meet any of the necessary requirements, she is not entitled to 

 6 Id. at § 10.607(a). 

7 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

8 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 

9 E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007). 

10 James W. Scott, 55 ECAB 606 (2004); Denis M. Dupor, 51 ECAB 482 (2000). 
6

further merit review. Accordingly, the Board finds that OWCP properly refused to reopen her 

case for further consideration of the merits of her claim under 5 U.S.C. § 8128(a). 

On appeal, counsel alleges that OWCP’s August 7, 2015 decision was contrary to fact 

and law. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s November 19, 2014 request for 

reconsideration under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the August 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 21, 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