United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

U.S. POSTAL SERVICE, SOUTH SUBURBAN 

PROCESSING & DELIVERY CENTER, 

Bedford Park, IL, Employer 

__________________________________________ 

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Docket No. 17-0660 

Issued: July 14, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On February 1, 2017 appellant filed a timely appeal from a September 16, 2016 nonmerit 

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

elapsed from the last merit decision dated October 22, 2015, 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 request for reconsideration of 

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

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal appellant contends that she submitted relevant and pertinent new evidence on 

reconsideration and, therefore, OWCP improperly denied her reconsideration request.2

FACTUAL HISTORY 

On March 18, 2009 appellant, then a 54-year-old flat sorter operator, filed an 

occupational disease claim (Form CA-2) alleging that she sustained pain in the shoulder, arm, 

and hand and numbness in her fingers due to repetitive employment duties. She did not stop 

work. 

By letter dated April 1, 2009, OWCP informed appellant that further factual and medical 

information was needed to support her claim. Appellant was afforded 30 days to submit the 

necessary information. 

In a letter received by OWCP on April 22, 2009, appellant described her 31 years of work 

with the employing establishment, which included assignments as a distribution clerk, letter 

sorting machine operator, and flat sorter operator. She alleged that the repetitive keying and 

throwing mail along with pushing, pulling, and lifting of heavy equipment contributed to her 

pain in her wrist, hands, right arm, and right upper shoulder. 

On June 5, 2009 OWCP accepted appellant’s claim for bilateral shoulder tendinitis, 

cervical tendinitis, bilateral carpal tunnel syndrome, and medial epicondylitis of the right elbow. 

On November 16, 2009 it accepted her claim for complex regional pain syndrome (CRPS) of 

both wrists and hands. 

In a report dated November 27, 2013, Dr. Thomas A. McNally, Board-certified in 

orthopedic surgery, noted that appellant had sustained a work-related repetitive use injury on 

March 17, 2009. He related that appellant had flare ups of bilateral arm pain and paresthesias, 

right worse than left over the past several years. Dr. McNally related appellant’s physical 

examination findings and reviewed appellant’s diagnostic studies. He diagnosed cubital tunnel 

syndrome, cervical spondylosis with myelopathy, cervical spinal stenosis, and cervical disc 

degeneration. Dr. McNally related that he had discussed C6-7, C7-T1 anterior cervical 

discectomy and fusion with appellant. 

On July 24, 2014 OWCP accepted appellant’s claim for bilateral disorder of bursae and 

tendons in shoulder region, spinal enthesopathy, bilateral carpal tunnel syndrome, bilateral 

medial epicondylitis, bilateral reflex sympathetic dystrophy of the upper limb, and bilateral 

brachial neuritis or radiculitis. 

On February 23, 2015 appellant filed a claim for a schedule award (Form CA-7). In 

support of her claim, appellant submitted an April 19, 2015 report wherein Dr. Blair Rhode, a 

Board-certified orthopedic surgeon, diagnosed appellant with bilateral carpal tunnel syndrome, 

bilateral rotator cuff tendinopathy, reflex sympathetic dystrophy, and brachial neuritis. 

 2

 Appellant submitted additional evidence to OWCP after it rendered its September 16, 2016 decision. The 

Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 
3

Dr. Rhode noted that she had reached maximum medical improvement. He applied Table 15-23, 

Table 15-5, and Table 15-26 of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (6th ed. 2009) (hereinafter A.M.A, Guides), and determined that appellant 

had a left shoulder impairment of four percent, a right shoulder impairment of four percent, a left 

wrist carpal tunnel syndrome of three percent, and right wrist carpal tunnel syndrome of three 

percent. Dr. Rhode noted that this equaled a whole person impairment of eight percent. 

On July 14, 2015 OWCP referred appellant’s record to OWCP’s medical adviser, for an 

evaluation of permanent impairment. In an August 6, 2015 report, the medical adviser noted that 

he could not use section 15.4f of the A.M.A., Guides to perform impairment ratings for carpal 

tunnel syndrome since the electromyogram was normal. Instead he used section 15.2 of the 

A.M.A., Guides for diagnosis of nonspecific wrist pain. Using Table 15-3, appellant’s 

nonspecific wrist pain impairment indicated a class 1 grade C diagnosis, with a default value of 1 

percent. The medical adviser noted a grade modifier of 1 for physical examination and a grade 

modifier of 0 for clinical studies. He noted a net adjustment of 1, which moved appellant’s grade 

to a grade B, for zero percent permanent impairment. 

With regard to appellant’s impairment to her elbow, OWCP’s medical adviser utilized 

section 15.2 of the A.M.A., Guides. He noted that appellant had medial epicondylitis, and that 

this condition is often self-limited, and that it appeared that appellant was not currently suffering 

from it. Therefore, using Table 15-4 of the A.M.A., Guides, the medical adviser determined that 

appellant’s diagnosis was class 0 for a value of zero percent. 

With regard to appellant’s bilateral shoulder permanent impairment, OWCP’s medical 

adviser noted that, pursuant to Table 15-5, appellant’s diagnosis of partial thickness rotator cuff 

tear was a class 1 grade C diagnosis, with a default value of three percent. He determined that 

appellant had a functional history grade modifier of 3 and a physical examination grade modifier 

of 1 and a grade modifier of 2 for clinical studies. The medical adviser noted that this yielded an 

adjustment of plus 2, moving appellant’s grade to E. Using Table 15-5, he determined that 

appellant’s permanent impairment of each upper extremity was five percent. 

OWCP’s medical adviser used section 15.5 of the A.M.A., Guides for appellant’s CRPS, 

and determined that as appellant was not exhibiting symptoms of CRPS, pursuant to Table 15-26 

of the A.M.A., Guides, appellant had a class 0 diagnosis, with a value of zero percent. He 

disagreed with Dr. Rhode’s impairment finding. The medical adviser noted that his rating 

assumed positive nerve conduction velocity/electromyogram results for carpal tunnel syndrome, 

and that the report clearly indicated that appellant did not have any conduction delays. 

By decision dated October 22, 2015, OWCP issued a schedule award for five percent 

permanent impairment of appellant’s right upper extremity and five percent permanent 

impairment of appellant’s left upper extremity. 

On September 12, 2016 appellant requested reconsideration of the October 22, 2015 

decision. In support of her reconsideration request, appellant submitted an August 19, 2016 

report, wherein Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon, indicated that he 

reexamined and reevaluated appellant on August 11, 2016. Dr. Chmell noted that he reviewed 

the October 22, 2015 decision and that it was incorrect and incomplete. He indicated that a 
4

glaring deficiency was that appellant had not been evaluated for an impairment to her upper 

extremities based on her employment-related injury to her cervical spine. Dr. Chmell noted that 

appellant had an accepted employment-related injury to her cervical spine and that her 

electromyogram documented cervical radiculopathy and that her magnetic resonance imaging 

scan documented multilevel disc protrusion with nerve root impingement. He noted that at the 

C6-7 level she had an impingement on the spinal cord with myelomalacia. Dr. Chmell noted that 

appellant has moderate-to-severe foraminal stenosis bilaterally at C4-5, C5-6, and C6-7. He 

noted that these changes were on her cervical spine and as they affect her upper extremities, in 

and of themselves, total more than five percent of each upper extremity. Dr. Chmell 

recommended and requested an authorization to perform a proper evaluation of appellant’s upper 

extremity impairment to include all diagnoses that are employment related. 

Appellant also resubmitted Dr. Rhode’s April 19, 2015 report. 

By decision dated September 16, 2016, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of the claim. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

OWCP’s regulations provide that the evidence or argument submitted by 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.4

 When a claimant fails to meet one 

of the above standards, OWCP will deny the application for reconsideration without reopening 

the case for review on the merits.5

ANALYSIS 

By decision dated October 22, 2015, OWCP issued a schedule award for five percent 

permanent impairment of each upper extremity. 

On September 12, 2016 appellant filed a timely request for reconsideration of the 

October 22, 2015 decision. In support of her reconsideration request, appellant submitted an 

August 19, 2016 report, wherein Dr. Chmell opined that OWCP’s October 22, 2015 decision was 

incorrect. Dr. Chmell noted a deficit in that she had not been evaluated for an impairment to her 

upper extremities based on her employment-related injury to her cervical spine, and noted that 

appellant should receive a greater impairment based on the impairment to her upper extremities 

due to her cervical conditions. He thus attempted to provide a legal argument in support of 

appellant’s schedule award claim. However, Dr. Chmell’s argument has no color of legal 

validity.6

 OWCP has not accepted that the cervical conditions he diagnosed as causing 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 

5 Id. at § 10.608(b). 

6 See R.J., Docket No. 07-527 (issued June 8, 2007). 
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appellant’s permanent impairment, C4-7 foraminal stenosis, and C6-7 impingement with 

myelomalacia are employment related.7

 While it has accepted appellant’s claim for cervical 

tendinitis, there is no medical evidence of record that this condition caused her any permanent 

impairment of her upper extremities. The Board has held that a claimant may request a schedule 

award or increased schedule award at any time based on evidence of new exposure or medical 

evidence showing the progression of an employment-related condition resulting in permanent 

impairment or increased permanent impairment.8 Dr. Chmell’s August 19, 2016 report is found 

to lack relevancy to the issue of increased impairment and this does not require merit review for 

purposes of an increased schedule award. Appellant’s September 12, 2016 request for 

reconsideration did not demonstrate that OWCP erroneously applied or interpreted a specific 

point of law. Additionally, she did not advance a relevant legal argument not previously 

considered by OWCP. Consequently, 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).9

The Board also notes that appellant did not submit any new and relevant pertinent 

evidence in support of her claim. Appellant resubmitted Dr. Rhode’s April 19, 2015 report, but 

this evidence was duplicative of his prior report. Evidence or argument which repeats or 

duplicates evidence already in the case record has no evidentiary value and does not constitute a 

basis for reopening a case.10 Appellant did not submit any new and relevant pertinent medical 

evidence establishing permanent impairment of more than five percent bilateral upper extremity 

impairment. 

As 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 constitute 

relevant and pertinent new evidence not previously considered, OWCP properly denied merit 

review. 

CONCLUSION 

The Board finds that OWCP properly denied reconsideration of the merits of the claim 

pursuant to 5 U.S.C. § 8128(a). 

 7 Thomas J. Englehart, 50 ECAB 319 (1999). Although the A.M.A., Guides includes guidelines for estimating 

impairment due to disorders of the spine, a schedule award is not payable under FECA for injury to the spine. In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for permanent 

impairment to a member of the body covered by the schedule regardless of whether the cause of the impairment 

originated in a schedule or nonscheduled member. Therefore, as the schedule award provisions of FECA include the 

extremities, a claimant may be entitled to a schedule award for permanent impairment to an extremity even though 

the cause of the impairment originated in the spine. 

8 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993). 

9 See P.M., Docket No. 16-1841 (issued March 3, 2017). 

10 See S.E., Docket No. 16-1077 (issued October 26, 2016). 
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ORDER 

IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 14, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board