United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

DEPARTMENT OF THE ARMY, ENLISTED 

RECORDS & EVALUATION CENTER, 

Fort Benjamin Harris, IN, Employer

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Docket No. 16-1619

Issued: October 4, 2017

Appearances: Case Submitted on the Record

Brett E. Blumstein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 8, 2016 appellant, through counsel, filed a timely appeal from a July 21, 2016 

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

180 days elapsed from the last merit decision, dated June 3, 2015, 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 request for reconsideration of 

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

FACTUAL HISTORY

On December 6, 1997 appellant, then a 38-year-old military personnel clerk, filed a 

notice of occupational disease (Form CA-2), alleging that she developed tendinitis of the wrist 

and tennis elbow as a result of gripping and pulling motions in the performance of duty. OWCP 

accepted the claim for right medial epicondylitis, temporary aggravation of right carpal tunnel 

syndrome and permanent aggravation of right medial epicondylitis and right trapezius 

myofascial pain. Appellant was placed on the periodic rolls of compensation effective 

September 9, 2001. 

OWCP referred appellant to Dr. Norman Mindrebo, a Board-certified orthopedic 

surgeon, for a second opinion examination to determine the nature and extent of her accepted 

conditions. In an August 2, 2012 report, Dr. Mindrebo determined that appellant had reached 

maximum medical improvement and opined that her employment-related conditions had ceased

without residuals. 

By decision dated November 30, 2012, OWCP terminated appellant’s compensation 

benefits as her accepted conditions had ceased without residuals. It found that the weight of the 

evidence was represented by Dr. Mindrebo. Appellant requested a telephone hearing before a 

representative of OWCP’s Branch of Hearings and Review.

In a July 22, 2013 decision, an OWCP hearing representative affirmed the termination 

decision.

Appellant submitted reports dated October 14, 2013 through March 12, 2014 from

Dr. John T. Munshower, a Board-certified neurologist, who diagnosed chronic pain syndrome, 

movement disorder, right shoulder pain, and neck pain. On December 16, 2013 Dr. Munshower 

opined that appellant’s right posterior shoulder and arm pain radiating to the hand was causally 

related to forceful and repetitive motions of removing heavy duty staples from packing materials. 

He opined that appellant’s work-related injuries of permanent aggravation of right medial 

epicondylitis, permanent aggravation of right trapezial myofascial pain, and aggravation of 

carpal tunnel syndrome resulted in a persistent pain, which was still active at that time.

On November 18, 2014 OWCP found a conflict in the medical evidence and referred 

appellant to Dr. Paul Ho, a Board-certified orthopedic hand surgeon, for an impartial medical 

examination to resolve the conflict. In his December 19, 2014 report, Dr. Ho diagnosed cervical 

degenerative joint disease with C5 radiculopathy with referred pain to the right trapezius and 

right arm, including the shoulder and elbow, bilateral elbow pain, possibly from cervical 

condition, right carpal tunnel syndrome, probable left carpal tunnel syndrome, and right cubital 

tunnel syndrome by electromyography (EMG). He found that appellant had a complex problem 

which was partially due to a neurological movement disorder that she had since childhood. 

Dr. Ho opined that, based on the physical examination, appellant’s elbow medial epicondylitis 
3

condition had resolved. He opined that appellant’s ongoing symptoms were related to her 

cervical disc problem with radiculopathy and since a cervical condition had not been accepted, 

then the pain in the trapezius area was more than likely not work related.

By decision dated June 3, 2015, OWCP denied modification of its prior decision. 

On April 22, 2016 counsel requested reconsideration and submitted additional medical 

evidence.

In an April 15, 2016 report, Dr. Paul F. Bustion, a neurologist, provided a list of 

appellant’s work-related and nonwork-related conditions. His work-related diagnoses included 

carpal and cubital tunnel syndromes, trapezius/myofascial pain, and right elbow epicondylitis. 

Dr. Bustion asserted that appellant’s nonwork-related diagnoses were dystonia musculoram 

deformans (DMD) and cervical spondylosis. He opined that her work-related disability was 

permanently present and responsible for her problems. Dr. Bustion found that appellant’s carpal 

and cubital tunnel syndromes were documented by neurophysiology tests and her 

trapezius/myofascial pain and right elbow epicondylitis were documented by clinical evaluation. 

He stated that her neurologists would have no difficulty recognizing that DMD does not cause 

the repetitive use injuries that she experienced. Dr. Bustion asserted that Dr. Ho had no 

difficulty identifying appellant’s work-related injuries but opined that, as a nontreating 

orthopedic surgeon, Dr. Ho could not separate the work-related problems from appellant’s DMD 

condition. He stated that he did not think that any physicians other than neurologists, and 

probably even most neurologists, would be able to reliably make this distinction. 

On reconsideration counsel argued that a nontreating orthopedic surgeon, such as Dr. Ho,

would not be able to separate work-related problems from a neurological issue. He further 

argued that appellant’s nonwork-related diagnosis was a neurological issue and consequently 

only a neurologist could determine whether her other injuries were related to her work-related 

injuries and, therefore, OWCP should send the conflict in the medical evidence to be resolved by 

a neurologist, not an orthopedic surgeon.

By decision dated July 21, 2016, OWCP denied appellant’s request for reconsideration. 

It considered Dr. Bustion’s April 15, 2016 report cumulative, noting that he had not provided 

new clinical or examination findings, but merely reiterated appellant’s various diagnoses. 

OWCP further found that because appellant did not have any accepted neurological conditions,

Dr. Ho’s qualifications as an orthopedic hand surgeon was appropriate for resolving the conflict 

in medical opinion.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 One such limitation is that the request for reconsideration 

 

3 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.
4

must be received by OWCP within one year of the date of the decision for which review is 

sought.5 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain 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 new evidence not previously 

considered by OWCP.6 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.7

ANALYSIS

In support of her April 22, 2016 reconsideration request, appellant submitted an April 15, 

2016 report from Dr. Bustion who reiterated the accepted conditions. Dr. Bustion also noted 

nonwork-related conditions of DMD and cervical spondylosis. He opined that appellant’s 

neurologists would have no difficulty recognizing that DMD does not cause the repetitive use 

injuries that she experienced. Dr. Bustion also asserted that Dr. Ho had no difficulty identifying 

appellant’s work-related injuries, but opined that as a nontreating orthopedic surgeon, Dr. Ho 

could not separate the work-related problems from appellant’s DMD condition. The Board finds 

that Dr. Bustion’s April 22, 2016 report is irrelevant to the issue that was before OWCP as it was 

focused on appellant’s nonwork-related conditions, not her accepted conditions. Additionally,

Dr. Bustion did not provide any new clinical or examination findings, but merely reiterated 

previous findings and/or diagnoses of record. As OWCP terminated appellant’s FECA benefits 

based on the lack of supportive medical evidence and this report repeats evidence already in the 

case record, it is cumulative and does not constitute relevant and pertinent new evidence. 

Therefore, it is not sufficient to require OWCP to reopen the claim for consideration of the 

merits.8

Appellant did not submit any evidence to show that OWCP erroneously applied or 

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

considered by OWCP. Because appellant only submitted cumulative evidence with her request 

for reconsideration, the Board finds that she did not meet any of the necessary requirements and 

she is not entitled to further merit review.9

 

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8 Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

9

See L.H., 59 ECAB 253 (2007).
5

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the July 21, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 4, 2017

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board