United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.V., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, TRAVIS 

AIR FORCE BASE, CA, Employer 

__________________________________________ 

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Docket No. 16-1168 

Issued: September 13, 2016 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 13, 2016 appellant, through counsel, filed a timely appeal of an April 5, 2016 

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

180 days elapsed since the last merit decision on November 14, 2014, 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. 

 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 application for reconsideration 

without reviewing the merits of the claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

The case has previously been before the Board. Appellant had filed an occupational 

disease claim (Form CA-2) on June 24, 1988 alleging that she developed carpal tunnel syndrome 

as a result of her secretarial job duties. She stopped working and OWCP accepted the claim for 

right carpal tunnel syndrome and an aggravation of carpal tunnel syndrome secondary to surgical 

scarring. In a decision dated January 9, 2002, the Board found that OWCP had properly 

terminated compensation for wage-loss and medical benefits effective April 4, 1993.3

 The Board 

also found that appellant had submitted sufficient medical evidence to create a conflict under 

5 U.S.C. § 8123(a) as to whether she continued to be entitled to compensation after 

April 4, 1993. The case was remanded for referral to a referee physician to resolve the conflict. 

By order dated August 4, 2006, the Board remanded the case to OWCP4

 finding that the 

referee physician, Dr. Britt Daniel, a Board-certified neurologist, had not properly resolved the 

issue as to whether appellant continued to have an employment-related disability after 

April 4, 1993. The case was remanded to properly resolve the disability issue. 

By decision dated September 8, 2008, the Board again remanded the case.5 The Board 

found that the new referee physician, Dr. Sandy Kimmel, an osteopath Board-certified in 

neurology, had not addressed the issue of whether appellant had a continuing employmentrelated disability from April 4, 1993. The case was again remanded to properly resolve the 

conflict. 

OWCP then selected Dr. Edward Hemphill, a Board-certified orthopedic surgeon, to 

resolve the conflict. In a brief report dated December 1, 2009, Dr. Hemphill provided a history, 

but did not include results from his examination. He opined that, while appellant had residual 

carpal tunnel syndrome bilaterally, she was not disabled on or after April 4, 1993. 

On February 10, 2013 OWCP advised appellant that Dr. John Sampson, a Board-certified 

neurosurgeon, had been selected as a referee physician to resolve the ongoing conflict in the 

medical opinion evidence regarding her disability status. In a report dated March 5, 2013, 

Dr. Sampson provided a history and results on physical and neurological examination. He 

indicated that appellant did not have documented carpal tunnel syndrome until August 1989, 

although he noted that it was possible to have carpal tunnel syndrome in the setting of a normal 

diagnostic study. Dr. Sampson noted that appellant had normal nerve conduction studies in 

January 1993. In response to a question as to any period of disability since April 1993, he 

 3

 Docket No. 00-1942 (issued January 9, 2002). 

4

 Docket No. 06-0529 (issued August 4, 2006). 

5

 Docket No. 07-2123 (issued September 8, 2008). 
3

concluded, “[Appellant] had normal studies in January 1993. According to [her], she had also 

ceased working since 1988. Therefore, I do not believe [that appellant] had any further disability 

related to work duties or related treatment.” 

By decision dated December 3, 2013, OWCP denied the claim for wage-loss 

compensation commencing April 4, 1993. It found that the weight of the medical evidence 

rested with Dr. Sampson. 

Appellant requested a hearing before an OWCP hearing representative on 

December 11, 2013, who affirmed the December 3, 2013 decision on November 14, 2014. The 

hearing representative noted that counsel had argued Dr. Sampson’s report was inconsistent, as 

the physician had referred to a permanent impairment while finding no disability after 

April 4, 1993. 

On appeal, the Board affirmed the November 14, 2014 OWCP decision.6

 The Board 

found the Dr. Sampson represented the weight of the medical evidence. As noted by the Board, 

counsel had argued that Dr. Sampson’s report was internally inconsistent with respect to 

diagnostic studies, as it referred to the possibility of having carpal tunnel syndrome even with 

normal studies. He also argued that the report was not based on a complete background. The 

Board found Dr. Sampson provided a rationalized medical report based on a complete 

background, and his opinion was entitled to special weight as a referee physician. The facts and 

circumstances as discussed in the prior appeals are hereby incorporated by reference. 

By letter dated December 14, 2015, counsel requested reconsideration. He again argued 

that Dr. Sampson’s report was inconsistent as he had referred to a permanent impairment, but 

found no employment-related injury. Counsel argued that OWCP did not address that 

Dr. Sampson had failed to consider whether there was a possible residual disability due to 

surgery, as a physician in 1993 had reported residuals of an aggravation of right carpal tunnel 

release.7

 In addition, he questioned why Dr. Sampson’s report was of more probative value than 

prior referee reports. Finally, counsel again argued that Dr. Sampson’s report was not based on a 

complete background. 

By decision dated April 5, 2016, OWCP denied the reconsideration request without merit 

review of the claim. It found that counsel had not raised new and relevant legal arguments and 

the reconsideration request was insufficient to require merit review. 

 6

 Docket No. 15-0402 (issued June 9, 2015). 

7

 The record contains a January 5, 1993 report from Dr. William Curtin, a Board-certified neurologist serving as a 

second opinion physician. Dr. Curtin indicated that there were no objective findings of aggravation of right carpal 

tunnel syndrome. He reported that appellant had subjective symptoms of alleged aggravation of right carpal tunnel 

release and epineurotomy. Dr. Curtin opined that appellant did not currently have right carpal tunnel syndrome. 
4

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8

OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii) 

constitutes relevant and pertinent evidence not previously considered by OWCP.”9 20 C.F.R. 

§ 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.10

ANALYSIS 

In the present case, OWCP had found that appellant had not established an employmentrelated disability on or after April 4, 1993, causally related to the accepted right carpal tunnel 

syndrome and permanent aggravation of carpal tunnel syndrome secondary to surgical scarring. 

The Board affirmed the November 14, 2014 hearing representative decision, finding that the 

referee physician, Dr. Sampson, provided a rationalized medical opinion in his March 5, 2013 

report. The Board finds that, with respect to the findings made in its prior decision dated June 9, 

2015, those matters are res judicata absent any further review by OWCP under section 8128 of 

FECA.11

By letter dated December 14, 2015, counsel requested reconsideration. He did not show 

that OWCP had erroneously applied or interpreted a specific point of law. With respect to legal 

arguments, counsel listed four arguments regarding the probative value of Dr. Sampson’s report. 

The first argument was that Dr. Sampson was inconsistent as he had referred to a permanent 

impairment but found no employment-related disability. This argument was raised and 

addressed by the hearing representative in the November 14, 2014 decision. It does not represent 

a new legal argument.12 The second argument is that Dr. Sampson did not consider possible 

residual disability from surgery. Dr. Sampson had a complete background and noted the carpal 

tunnel surgeries and the medical evidence of record. As the Board held in the prior appeal, 

Dr. Sampson provided a rationalized medical opinion that appellant did not have disability on or 

after April 4, 1993 causally related to the work duties or any treatment. Where the argument 

 8

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application”). 

9

 20 C.F.R. § 10.606(b)(3). 

10 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

11 R.T., Docket No. 16-543 (issued May 20, 2013). 

12 The Board has held that the submission of evidence or argument which repeats or duplicates evidence or 

argument already in the case record does not constitute a basis for reopening a case. See V.R., Docket No. 16-0969 

(issued August 8, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984) 
5

presented has no reasonable color of validity, OWCP is not required to reopen the case for merit 

review.13 

Counsel next questioned why Dr. Sampson’s report was of more probative value than 

prior referee reports. The Board found that a conflict under 5 U.S.C. § 8123(a) existed in its 

January 9, 2002 decision. As the history of the case reflects, the prior referee physicians did not 

provide a rationalized medical opinion, based on a complete background, that was sufficient to 

resolve the conflict. The Board explained in its prior decision why Dr. Sampson represented the 

weight of the medical evidence in this case. Appellant has not provided a pertinent new and 

relevant legal argument in this regard. 

The final argument raised was that Dr. Sampson did not base his opinion on a proper 

background, as he questioned the permanency of the carpal tunnel syndrome aggravation. The 

Board specifically addressed this argument in the June 9, 2015 decision.14

Appellant did not submit any pertinent new and relevant evidence on reconsideration. 

The Board finds that 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 

constituted relevant and pertinent new evidence not previously considered by OWCP. Since 

appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3), OWCP properly 

denied merit review. 

On appeal counsel reiterates the arguments that Dr. Sampson’s report was not sufficient 

to resolve the conflict in the medical evidence. The issue on appeal was whether appellant had 

met any of the requirements of 20 C.F.R. § 10.606(b)(3) that would require OWCP to review the 

merits of the claim. For the reasons discussed, OWCP properly denied merit review in this case. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s application for reconsideration 

without reviewing the merits of the claim pursuant to 5 U.S.C. § 8128(a). 

 13 See Charles A. Jackson, 53 ECAB 671 (2002); Norman W. Hanson, 40 ECAB 1160 (1989). 

14 See supra note 11. 
6

ORDER 

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

Compensation Programs dated April 5, 2016 is affirmed. 

Issued: September 13, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board