United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.R., Appellant 

and 

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Cincinnati, OH, Employer 

__________________________________________ 

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Docket No. 17-1055 

Issued: August 17, 2017 

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 April 21, 2017 appellant filed a timely appeal from a March 28, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days 

elapsed from OWCP’s last merit decision dated June 1, 2016, 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 over the merits of this case. 

ISSUE 

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

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

 1

 Appellant’s Application for Review (Form AB-1) filed on April 21, 2017 requests review of a March 23, 2017 

OWCP decision. The Board finds that there is no March 23, 2017 decision in her claim and the proper decision date 

for review is March 28, 2017. The Board further finds that appellant’s request is limited to the decision dated 

March 28, 2017. 

2

 5 U.S.C. § 8101 et seq. 
2

On appeal appellant contends that an electromyogram and nerve conduction velocity 

(EMG/NCV) study she submitted in support of her request for reconsideration was sufficient to 

warrant a merit review of her claim. 

FACTUAL HISTORY 

On January 6, 2004 appellant, then a 34-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she had carpal tunnel syndrome in both 

hands as a result of her repetitive work duties. She first became aware of her condition on 

December 8, 2003 and realized that it was causally related to factors of her federal employment 

on December 15, 2003. On the reverse side of the claim form, the employing establishment 

indicated that appellant performed light-duty work following her claimed injury. 

On January 20, 2004 OWCP accepted the claim for bilateral carpal tunnel syndrome. 

Appellant underwent an authorized right carpal tunnel release and a right flexor 

tenosynovectomy on March 5, 2004 and left carpal tunnel release on April 23, 2004 performed 

by Dr. Thomas E. Shockley, Jr., an attending Board-certified orthopedic surgeon. OWCP paid 

wage-loss compensation benefits. Appellant returned to work on July 6, 2004. 

In a November 15, 2004 decision, OWCP terminated appellant’s entitlement to future 

wage-loss compensation and medical benefits, effective that same date. It determined that the 

weight of the medical evidence rested with the July 6, 2004 medical opinion of Dr. Richard T. 

Sheridan, a Board-certified orthopedic surgeon and second opinion specialist, who found that 

appellant no longer had any residuals or disability from work causally related to her accepted 

employment-related injury. 

After 2004, the claim lay dormant until January 20, 2016 when appellant filed a claim for 

a schedule award (Form CA-7). 

By letter dated April 19, 2016, OWCP referred appellant, together with a statement of 

accepted facts (SOAF) and the medical record, to Dr. Edward G. Fisher, a Board-certified 

orthopedic surgeon, to determine the nature and extent of her permanent impairment. In a 

May 9, 2016 report, Dr. Fisher noted that he examined appellant on May 5, 2016. He reviewed 

her history, the SOAF, and the medical record. Dr. Fisher provided findings on examination and 

determined that appellant had reached maximum medical improvement (MMI) on August 2, 

2004, the date of Dr. Shockley’s examination. He found that, under Table 15-23, page 449, of 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment3 (hereinafter A.M.A., Guides), appellant had one percent permanent impairment of 

each arm due to her work-related bilateral carpal tunnel syndrome and authorized surgeries. 

On May 18, 2016 OWCP routed Dr. Fisher’s May 9, 2016 report, the SOAF, and the 

medical record, to Dr. Morley Slutsky, an OWCP district medical adviser (DMA) Boardcertified in occupational medicine, for review and a determination on whether appellant 

sustained a permanent impairment of her bilateral upper extremities. 

 3

 A.M.A., Guides (2009). 
3

In a May 28, 2016 report, Dr. Slutsky reviewed Dr. Fisher’s May 9, 2016 findings and 

disagreed with his impairment ratings as he used Table 15-23, page 449 (compression 

neuropathy table), without determining whether his report met the criteria of the A.M.A., Guides

(Appendix 15-B, pages 487-90) for the use of this table. He opined that appellant had no 

permanent impairment of either arm. Dr. Slutsky noted her diagnosis of bilateral carpal tunnel 

syndrome and that he did not have a copy of her EMG/NCV study. He related that, under these 

circumstances, the A.M.A., Guides, pages 445 and 446 required the wrists to be rated as 

nonspecific wrist pain.4

 Using Table 15-3, page 395, the diagnosis of bilateral wrist nonspecific 

pain was adjusted to zero percent bilateral upper extremity impairment. Dr. Slutsky determined 

that appellant reached MMI on May 5, 2016, the date of Dr. Fisher’s examination. 

By decision dated June 1, 2016, OWCP denied appellant’s claim for a schedule award, 

finding that she had not established permanent impairment to a scheduled member due to her 

accepted work injury. It discussed the evidence of record, including Dr. Slutsky’s May 28, 2016 

assessment and found that the evidence of record did not establish that appellant had permanent 

impairment of a scheduled member. 

In a letter and on an undated appeal request form, received by OWCP on July 6, 2016, 

appellant requested reconsideration. She indicated that an EMG/NCV study accompanied her 

reconsideration request. 

By decision dated November 30, 2016, OWCP denied further merit review of appellant’s 

claim finding that she had not raised substantive legal questions, nor had she submitted new and 

relevant evidence. It noted that no additional medical evidence had been received as part of the 

reconsideration request. 

In a letter and an appeal request form, received by OWCP on December 20, 2016, 

appellant again requested reconsideration. She again indicated that an EMG/NCV study 

accompanied her reconsideration request. 

By decision dated March 8, 2017, OWCP denied further merit review of appellant’s 

claim. It again found that she neither raised substantive legal questions nor submitted new and 

relevant evidence. OWCP noted that no additional medical evidence was received as part of the 

reconsideration request. 

In a letter received by OWCP on March 23, 2017, appellant again requested 

reconsideration. She submitted a June 27, 2016 EMG/NCV study performed by Dr. Ayse L. 

Lee-Robinson, a Board-certified physiatrist. Dr. Lee-Robinson provided an impression of 

abnormal findings related to the upper extremity studies. Studies testing median nerve function 

across the wrist segment were abnormal and consistent with bilateral median mononeuropathy or 

carpal tunnel syndromes of moderate/mild degree. Median/radial and median/ulnar sensory 

latency comparisons continued to reveal significant prolongation of median sensory latency. 

Median/ulnar motor latency comparisons continued to reveal significant prolongation of the 

median motor latency. EMG testing of the median innervated abductor pollicis brevis muscles 

revealed abnormal motor unit recruitment. A comparison with left 2010 findings revealed 

 4 Id. at 445-46. 
4

minimal improvement of the left carpal tunnel syndrome from a moderate to moderate/mild 

degree. Studies testing ulnar nerve function across the elbow segment were also abnormal and 

consistent with additional ulnar mononeuropathy at the elbow of moderate degree, left greater 

than right. Ulnar motor conduction velocity across the elbow segment was significantly reduced 

below the normal greater than 52 meter per second (m/s) to 45 m/s for both left and right side. 

Ulnar sensory amplitudes were significantly reduced, left greater than right. EMG testing of left 

ulnar hand muscles revealed abnormal motor unit recruitment. A comparison with the 2010 

study revealed improvement of the left ulnar motor conduction across the elbow segment from 

34.7 and 35.1 m/s to 45 m/s (with normal being greater than 52 m/s). Dr. Lee-Robinson advised 

that the current findings were without electrodiagnostic evidence of overlying cervical 

radiculopathy, brachial plexopathy, and peripheral polyneuropathy or myopathy. 

In a March 28, 2017 decision, OWCP denied appellant’s request for reconsideration 

without conducting a merit review of her claim. It found that the evidence submitted was 

irrelevant or immaterial. 

LEGAL PRECEDENT 

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

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.5 Section 10.608(b) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).6 This section provides that the application for reconsideration must be submitted 

in writing and 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.7

 Section 10.608(b) provides that when a request for 

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

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

ANALYSIS 

OWCP issued a June 1, 2016 decision denying appellant’s claim for a schedule award. It 

found that the weight of the medical evidence rested with the May 28, 2016 report of 

Dr. Slutsky, OWCP’s DMA, who determined that appellant had no permanent impairment of 

either upper extremity based upon his diagnosis-based impairment evaluation based upon the 

diagnosis of nonspecific wrist pain. 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.608(a). 

7 Id. at § 10.606(b)(3). 

8 Id. at § 10.608(b). 
5

The Board does not have jurisdiction over the June 1, 2016 merit decision and can 

consider only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which 

would prompt OWCP to reopen the case for merit review. The underlying issue in this case is 

whether the medical evidence of record demonstrated permanent impairment of a scheduled 

member due to the accepted work injury, warranting schedule award compensation under FECA. 

That is a medical issue which must be addressed by relevant medical evidence.9

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

interpreted a specific point of law, nor did she advance a relevant legal argument not previously 

considered in her March 23, 2017 request for reconsideration. Thus, appellant is not entitled to a 

review of the merits of her claim based on the first and second above-noted requirements under 

section 10.606(b)(3). 

The Board finds, however, that appellant did submit relevant and pertinent new evidence 

with her final request for reconsideration made before OWCP. Along with her March 23, 2017 

request for reconsideration appellant submitted an EMG/NCV study. She had previously stated 

that she had submitted these diagnostic-testing reports along with her July 6 and December 20, 

2016 requests for reconsideration. However, OWCP determined that it had not received any 

medical evidence with her first two reconsideration requests. Therefore, the EMG/NCV test 

results accompanying appellant’s March 23, 2017 request for reconsideration constitute the 

submission of new medical records into evidence. Moreover, these new records are found to be 

relevant and pertinent as OWCP’s DMA specifically performed a rating examination based upon 

the diagnosis of nonspecific wrist pain because the EMG/NCV reports were not of record. As 

the DMA’s rating was expressly premised upon the lack of EMG/NCV tests results, their 

submission is clearly relevant. 

The Board accordingly finds that appellant met the third above-noted requirement of 20 

C.F.R. § 10.606(b)(3) in her reconsideration request of March 23, 2017. Appellant submitted 

relevant and pertinent evidence not previously considered in her claim for a schedule award. 

Thus, pursuant to 20 C.F.R. § 10.608, it is concluded that OWCP improperly denied merit 

review.10

On appeal appellant contends that the report of the EMG/NCV study she had submitted in 

support of her request for reconsideration was sufficient to warrant a merit review of her claim. 

As indicated above, the Board agrees. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s requests for reconsideration 

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

 9 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

10 See L.H., 59 ECAB 253 (2007); K.M., Docket No. 15-1290 (issued September 23, 2015). 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 28, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further proceedings consistent 

with this opinion, to be followed by an appropriate decision. 

Issued: August 17, 2017 

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