United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Wilmington, DE, Employer 

__________________________________________ 

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Docket No. 15-0915 

Issued: September 29, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 18, 2015 appellant, through counsel, filed a timely appeal from a January 20, 

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

did not appeal the December 5, 2014 merit decision.1

 Therefore, pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does 

not have jurisdiction over the merits of this case. 

 1

 In his March 18, 2015 letter requesting appeal and brief, and March 23, 2015 Application for Review (Form 

AB-1), counsel stated that he wished to appeal the January 20, 2015 nonmerit decision. He did not appeal the 

December 5, 2014 merit schedule award decision from which he requested reconsideration. Therefore, in 

accordance with counsel’s statements, the Board will not take jurisdiction over the December 5, 2014 schedule 

award decision. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s January 8, 2015 request for 

reconsideration pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

This is the second appeal before the Board in this case. By decision and order issued 

February 11, 2003,3

 the Board affirmed OWCP’s June 7, 2002 merit decision denying 

recurrences of disability commencing October 5, 1994, December 7, 1995, and 

February 18, 1996. The law and facts of the case as set forth in the Board’s prior decision are 

incorporated by reference. The facts relevant to the present appeal are set forth below. 

OWCP accepted that on March 27, 1989 appellant, then a 30-year-old distribution clerk, 

sustained a sprain of her left arm from pulling a tub of mail. On November 25, 1991 it also 

accepted that she had left thoracic outlet syndrome, for which she underwent resection of the left 

first rib in 1991, and a left brachial plexus neurolysis, a scalenectomy, and a sympathectomy in 

1993. Appellant remained under medical treatment.4 

On April 17, 2003 Dr. Frank J.E. Falco, an attending physician Board-certified in pain 

medicine, performed right C3-7 facet joint ablation. In a May 8, 2003 report, he opined that 

appellant’s bilateral cervical spine pain and upper extremity numbness and paresthesias were all 

related to the accepted 1989 injury and surgeries. March 28, 2005 electromyography and nerve 

conduction velocity studies of the arms were normal. Dr. Randeep S. Kahlon, an attending 

Board-certified orthopedic surgeon, opined on April 4, 2005 that appellant’s irritable nerves at 

the carpal, cubital, and radial tunnels bilaterally indicated a significant distal neuritis from a 

proximal lesion. 

Appellant claimed a schedule award on November 10, 2008. Dr. Nicholas Diamond, an 

attending osteopath, provided a September 10, 2007 impairment rating finding 16 percent 

impairment of the left arm due to limited motion, sensory loss, and C5-7 nerve root involvement, 

according to the fifth edition of the American Medical Associations, Guides to the Evaluation of 

Permanent Impairment (hereinafter, A.M.A., Guides) then in effect. An OWCP medical adviser 

opined on March 13, 2008 that appellant had no ratable impairment due to sensory deficit. 

By decision dated April 2, 2008, OWCP denied the claim as the medical evidence did not 

indicate a ratable impairment due to the accepted injury. Following an August 28, 2008 

telephonic hearing, its Branch of Hearings and Review issued an April 17, 2009 decision setting 

aside the April 2, 2008 determination and remanding the claim to determine if the accepted 

thoracic outlet syndrome caused any ratable impairment. Dr. Diamond provided a September 20, 

2009 impairment rating utilizing the sixth edition of the A.M.A., Guides, finding 16 percent 

impairment of the left upper extremity due to a class 1 sensory deficit of the upper and middle 

trunks of the brachial plexus. 

 3

 Docket No. 02-2261 (issued February 11, 2003). 

4

 Appellant retired from federal employment in late 1996. She then worked in the private sector. 
3

An OWCP medical adviser opined on October 31, 2009 that appellant’s only objective 

impairment was restricted left shoulder motion due to the 1991 rib resection. He explained that 

the medical record did not support a stretch palsy or brachial plexus involvement. The medical 

adviser calculated six percent left arm impairment due to limited shoulder motion, pursuant to 

the Table 15-34: Shoulder Range of Motion, p. 475, of the sixth edition of the A.M.A., Guides. 

On November 10, 2009 appellant again filed a schedule award claim. By decision dated 

December 1, 2009, OWCP granted her a schedule award for six percent impairment of the left 

arm, based on the medical adviser’s October 31, 2009 opinion. 

In a December 7, 2009 letter, counsel requested an oral hearing, later modified to a 

request for a review of the written record. He contended that the district medical adviser failed 

to discuss or provide a rating for the diagnosed conditions in the statement of accepted facts and 

that OWCP should consider permanent impairment of appellant’s right upper extremity. 

Counsel provided an April 2, 2010 report from Dr. Diamond, finding 31 percent impairment of 

the left arm due to thoracic outlet syndrome of the brachial plexus neuritis type. 

By decision dated June 15, 2010, OWCP’s Branch of Hearings and Review found that the 

case was not in posture for a decision due to a conflict between Dr. Diamond, for appellant, and 

the medical adviser, for the government, regarding the nature and extent of the accepted thoracic 

outlet syndrome. OWCP directed selection of an impartial medical specialist to resolve the 

conflict. 

On August 4, 2010 OWCP obtained an impartial opinion from Dr. Karl Rosenfeld a 

Board-certified orthopedic surgeon, who found 13 percent impairment of the left upper extremity 

due to thoracic outlet symptoms in the absence of positive electrodiagnostic findings. 

Dr. Rosenfeld noted that, as appellant had reached maximum medical improvement, he did not 

expect her condition to change. An OWCP medical adviser reviewed the record on September 7, 

2010 and found Dr. Rosenfeld’s opinion did not conform to the A.M.A., Guides. Dr. Rosenfeld 

found no left arm impairment as there was no objective evidence of a brachial plexus 

impairment. 

By decision dated September 8, 2010, OWCP affirmed the prior decision, finding that 

appellant had not established that she sustained more than six percent impairment of the left 

upper extremity. 

In response to appellant’s September 13, 2010 hearing request, on December 27, 2010 an 

OWCP hearing representative found that the case was not in posture for a hearing, and remanded 

the case to obtain clarification from Dr. Rosenfeld. Dr. Rosenfeld provided a February 28, 2011 

report, concurring that there were no objective signs of brachial plexus involvement. 

By decision dated March 24, 2011, OWCP denied appellant’s claim for an additional 

schedule award, as Dr. Rosenfeld found no objective impairment of the left upper extremity. 

Counsel requested a hearing which was held on August 8, 2011.5

 He contended that the medical 

 5

 Counsel submitted June 30 and November 1, 2011 reports from Dr. J. Douglas Patterson, an attending Boardcertified orthopedic surgeon, requesting authorization for bilateral carpal tunnel releases, a left ulnar nerve release, 

and multiple trigger finger releases. 
4

adviser was disqualified from serving in appellant’s case as he assisted Dr. Diamond in 

formulating his September 2009 impairment rating. Dr. Diamond provided an August 3, 2011 

report contending that Dr. Rosenfeld did not perform a complete or appropriate examination, and 

ignored objective signs of impairment. 

By decision dated September 19, 2011, the hearing representative set aside the March 24, 

2011 decision, and remanded the case to obtain additional clarification from Dr. Rosenfeld. 

Dr. Rosenfeld submitted an October 10, 2011 letter, stating that appellant did not have objective 

findings of thoracic outlet syndrome. 

OWCP then found a conflict of opinion between Dr. Diamond, for appellant, and a 

second OWCP’s medical adviser regarding the nature and extent of the injury-related 

impairments. It selected Dr. Jerry L. Case, a Board-certified orthopedic surgeon, to resolve the 

conflict. Dr. Case submitted a January 30, 2012 report that was not imaged completely into the 

case record. The medical adviser reviewed the record on March 29, 2012, finding that 

Dr. Case’s findings supported 13 percent impairment of the left upper extremity due to thoracic 

outlet syndrome with brachial plexus impairment. 

 By decision dated April 25, 2012, OWCP issued a schedule award for an additional 7 

percent impairment of the left upper extremity, for a total of 13 percent. Counsel disagreed, and 

in a May 3, 2012 letter requested a hearing. 

 By decision dated July 9, 2012, a representative of OWCP’s Branch of Hearings and 

Review found that the case was not in posture for a hearing as Dr. Case’s report could not be 

reviewed in its entirety. The hearing representative remanded the case for reconstruction of the 

case record. In a July 17, 2012 letter, counsel requested a hearing. 

 On July 24, 2012, the medical adviser reviewed the case record. He opined that, as 

Dr. Case found no objective signs of a brachial plexus lesion, appellant did not have a ratable 

impairment of the left upper extremity. 

 By decision dated July 30, 2012, OWCP found that appellant had not established that she 

sustained more than the 13 percent impairment of the left upper extremity previously awarded, 

based on Dr. Case’s opinion as the weight of the medical evidence. Counsel disagreed and in an 

August 3, 2012 letter requested a hearing, which was held November 28, 2012. At the hearing, 

he contended that OWCP must image Dr. Case’s entire report into the record, and obtain 

clarification from him regarding the nature and extent of the injury-related condition. 

 By decision dated February 19, 2013, the hearing representative vacated OWCP’s 

July 30, 2012 decision and remanded the case for reconstruction of the record. On remand, 

OWCP imaged Dr. Case’s complete January 30, 2012 report into the record. Dr. Case opined 

that appellant had 13 percent impairment of the left upper extremity due to thoracic outlet 

syndrome, a vascular condition. He opined that she did not have brachioplexopathy, as she had 

no objective neurologic findings. 

 OWCP determined that Dr. Case’s opinion was insufficient to resolve the conflict 

between the medical adviser and Dr. Diamond. It selected Dr. Andrew Gelman, an osteopath 
5

Board-certified in orthopedic surgery, as an impartial medical examiner, to resolve the conflict.6 

Dr. Gelman provided a May 15, 2013 report finding no ratable impairment of the left upper 

extremity due to thoracic outlet syndrome or a brachial plexus lesion. In a July 10, 2013 report, 

the medical adviser concurred with Dr. Gelman’s assessment. 

 By decision dated July 11, 2013, OWCP denied appellant’s claim for an additional 

schedule award, based on Dr. Gelman’s opinion as the weight of the medical evidence. Counsel 

disagreed, and in a July 16, 2013 letter requested a hearing. He provided a November 8, 2013 

report from Dr. Diamond, asserting that Dr. Gelman did not perform a thorough examination. At 

the hearing, held November 15, 2013, counsel asserted that Dr. Gelman could not serve as 

impartial medical examiner as he treated appellant in 1989 and 1990. 

 By decision dated January 29, 2014, an OWCP hearing representative vacated OWCP’s 

July 11, 2013 decision, finding that Dr. Gelman was disqualified from serving as impartial 

medical examiner as he previously treated appellant. He remanded the case to OWCP for 

selection of a new impartial medical examiner. 

 On February 27, 2014 OWCP selected Dr. Donald B. Haskins, a Board-certified 

orthopedic surgeon, as impartial medical examiner. It included a bypass history report listing 13 

other physicians considered in appellant’s commuting area: one retired; two had previously 

participated in the case; three could not be reached; two were spine, neck, and back specialists; 

one was a “foot doctor only;” four did not perform impairment ratings. 

 In a March 25, 2014 report, Dr. Haskins reviewed the medical record and a statement of 

accepted facts and concurred that appellant had reached maximum medical improvement. He 

related appellant’s symptoms of neck and left arm pain and paresthesias throughout the left arm 

and hand. Dr. Haskins noted restricted motion of the cervical spine, “normal” range of motion in 

the left elbow, “limited” motion in the left wrist, no left scapular atrophy, surgical scars in the 

left distal radius and bilateral carpal tunnel regions, bilateral ulnar nerve release scars, and no 

objective focal sensory loss to light tough in either arm. He noted reviewing Dr. Gelman’s 1989 

and 1990 reports as well as his May 15, 2013 impartial report. Dr. Haskins diagnosed thoracic 

outlet syndrome status postsurgical procedures and a left wrist sprain. He noted nonoccupational 

conditions of a left wrist fracture, nerve entrapment of the elbows and wrists, trigger finger, 

cervical spine abnormalities, and complex regional pain syndrome. Dr. Haskins explained that 

appellant had no ratable impairment due to residuals of thoracic outlet syndrome or the two 

surgical procedures. He opined that she did not have a brachial plexus lesion. Dr. Haskins noted 

that he “did not have Semmes-Weinstein equipment for light touch testing,” but that appellant 

had “either perceived or minimal sensory changes” resulting in a grade 1 or mild impairment 

according to Table 15-14, page 425. He found no motor deficiency as appellant had normal 

manual strength. Dr. Haskins noted a grade modifier for Functional History (GMFH) of two, a 

grade modifier for Physical Findings (GMPE) of zero, and a grade modifier for Clinical Studies 

(GMCS) of one. He then calculated a left upper extremity impairment of four percent, based on 

brachial plexopathy. The medical adviser review the record on April 18, 2014 and found that 

 6

 By decision dated March 20, 2013, OWCP denied counsel’s February 25, 2013 request to participate in the 

selection of a new impartial medical examiner, as he did not provide an acceptable reason for his request. The 

March 20, 2013 decision is not before the Board on the present appeal. 
6

appellant had no ratable impairment of the left upper extremity as she had normal manual 

strength, and no objective sensory deficit. 

By decision dated April 23, 2014, OWCP denied appellant’s claim for an additional 

schedule award, finding that Dr. Haskins’ opinion established that she had not sustained greater 

than the 13 percent impairment of the left upper extremity for which she received schedule 

awards. 

In an April 28, 2014 letter, counsel requested a hearing, which was held 

October 20, 2014. At the hearing, he asserted that OWCP should have removed Dr. Gelman’s 

May 15, 2013 impartial report from the record following his disqualification from participating 

in the case. Counsel contended that, in selecting Dr. Haskins, OWCP improperly bypassed two 

spine surgeons who could have provided the required opinion, as appellant had cervical spine 

complaints. He also argued that Dr. Haskin’s opinion could not represent the weight of the 

medical evidence as he did not provide complete upper extremity range of motion measurements, 

and did not perform Semmes-Weinstein monofilament testing. Counsel contended that 

Dr. Diamond’s reports outweighed Dr. Haskin’s opinion. 

By decision dated December 5, 2014, the hearing representative affirmed OWCP’s 

April 23, 2014 decision. He found that Dr. Haskins’ report was sufficiently detailed and wellrationalized to represent the weight of medical opinion in the case. The hearing representative 

also found that Dr. Haskins’ reliance on clinical findings and the studies of record provided 

sufficient evaluation of sensory functioning, without need for Semmes-Weinstein monofilament 

testing. He further found that OWCP was not required to exclude Dr. Gelman’s report as it was 

not obtained through improper telephone contact, by means of leading questions, or improperly 

influenced by surveillance video of the injured worker. The hearing representative also noted 

that as Dr. Diamond was on one side of the conflict Dr. Haskins was appointed to resolve, his 

reports could not outweigh Dr. Haskins’ opinion. 

In a January 8, 2015 letter, counsel requested reconsideration, contending that 

Dr. Haskins’ report could not carry the weight of the medical evidence as he did not perform 

Semmes-Weinstein monofilament testing or a complete neurologic examination. He contended 

that Dr. Diamond’s opinion was sufficient to establish 31 percent impairment of the left upper 

extremity. Counsel provided a December 22, 2014 report from Dr. Diamond, asserting that 

appellant had 31 percent impairment of the left arm, and that Dr. Haskins’ failure to perform 

Semmes-Weinstein monofilament testing negated the probative value of his neurologic 

assessment. 

By nonmerit decision dated January 20, 2015, OWCP denied reconsideration, finding that 

the evidence submitted in support of the request was “cumulative and thus substantially similar 

to evidence or documentation that is already contained in the case file and was previously 

considered.” 
7

LEGAL PRECEDENT 

To require OWCP 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 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.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, appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.10 She 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 

ANALYSIS 

The Board finds that OWCP appropriately denied reconsideration as counsel’s argument 

was duplicative of his prior arguments. At the October 20, 2014 hearing, counsel asserted that 

the report of Dr. Gelman, a Board-certified orthopedic surgeon providing an opinion to OWCP, 

should have been excluded from the record after he was disqualified from serving as an impartial 

medical examiner. He also argued that OWCP improperly bypassed two spine surgeons in 

selecting Dr. Haskins and that Dr. Haskins’ report was fatally flawed as he failed to perform 

Semmes-Weinstein monofilament testing or provide complete range of motion measurements. 

Counsel asserted that the reports of Dr. Diamond, an attending osteopath, outweighed those of 

Dr. Haskins. In its December 5, 2014 merit decision, OWCP answered each of his contentions, 

explaining that Dr. Haskins’ report was sufficient to represent the weight of the medical 

evidence, that OWCP was not required to exclude Dr. Gelman’s report, and that Dr. Diamond’s 

opinion could not outweigh that of Dr. Haskins as Dr. Diamond was on one side of the conflict 

of opinion Dr. Haskins was selected to resolve. 

In his January 8, 2015 request for reconsideration, counsel repeated his October 20, 2014 

arguments that Dr. Haskins failed to perform Semmes-Weinstein testing or a complete 

examination, and that Dr. Diamond’s opinion was sufficient to establish 31 percent impairment 

 7

 5 U.S.C. § 8128(a). 

8

 20 C.F.R. § 10.606(b)(2). 

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

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

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

12 Annette Louise, 54 ECAB 783 (2003). 
8

of the left arm. Evidence which is duplicative or cumulative or repetitive in nature is insufficient 

to warrant reopening a claim for merit review.13 Counsel also provided a December 22, 2014 

report from Dr. Diamond, which although new, was repetitive of both his prior opinions and of 

counsel’s contentions. It is therefore insufficient to warrant consideration on the merits. 

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

argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review. 

On appeal counsel contends that OWCP did not properly use the physician directory 

system in selecting Dr. Haskins, as it bypassed two spine specialists who could have offered an 

opinion on appellant’s cervical spine. He also argues that OWCP improperly failed to exclude 

Dr. Gelman’s report from the record after he was disqualified, thereby tainting Dr. Haskins’ 

opinion as he referenced Dr. Gelman’s opinion in his report. Counsel also asserts that 

Dr. Haskins’ examination was deficient as he did not provide range of motion measurements for 

the left elbow or left wrist, perform Semmes-Weinstein monofilament testing, or provide an 

adequate neurologic examination. The Board notes that these arguments pertain to the merits of 

the claim, which are not before the Board on the present appeal. Also, counsel’s arguments were 

considered and rejected by OWCP prior to its December 5, 2014 merit decision. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s January 8, 2013 request for 

reconsideration pursuant to 5 U.S.C. § 8128(a). 

 13 Denis M. Dupor, 51 ECAB 482 (2000). 
9

ORDER 

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

Compensation Programs dated January 20, 2015 is affirmed. 

Issued: September 29, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board