United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.Z., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, NATIONAL INSTITUTE OF 

HEALTH, NATIONAL INSTITUTE OF 

ENVIRONMENTAL HEALTH SERVICES, 

Research Triangle Park, NC, Employer 

__________________________________________ 

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Docket No. 16-0034 

Issued: February 25, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 8, 2015 appellant filed a timely appeal from a September 2, 2015 nonmerit 

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

elapsed since the last merit decision of April 2, 2015 and 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 case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review on the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant contends that OWCP should have accepted her claim for left hand 

osteoarthritis as her prior claim for right hand osteoarthritis was accepted. She contended that 

after she injured her right hand she started using her left hand to perform her duties and that her 

x-rays showed similar osteoarthritis in both hands. 

FACTUAL HISTORY 

On November 18, 2014 appellant, then a 60-year-old biologist, filed an occupational 

disease claim (Form CA-2) alleging that as a result of using a pipette repeatedly with her left 

hand, she developed swelling, soreness, and pain in her left wrist joint. 

OWCP received a statement from the employing establishment on December 15, 2014 

which noted that appellant had not stopped work after she filed her claim. It was noted that her 

work as a biologist required hand pipetting on a regular basis. Appellant had been provided 

equipment to accommodate her alleged injury by reducing stress on her thumb, wrist, and that 

her workload had been reduced. 

Appellant submitted a December 18, 2014 note from Johanna Mencel, a physician 

assistant, which acknowledged that appellant had been seen on that day for wrist pain. 

By decision dated December 31, 2014, OWCP denied appellant’s claim. It determined 

that she had not established a medical diagnosis nor had she established that any medical 

condition was causally related to established work events. 

On March 23, 2015 appellant filed a reconsideration request. In support of her claim, she 

resubmitted the December 18, 2014 note signed by Ms. Mencel, but this note had been 

countersigned by Dr. Marshall Kuremsky, a Board-certified orthopedic surgeon. This note 

indicated that appellant was seen on December 18, 2014 and diagnosed with localized primary 

osteoarthritis of her wrist. Appellant also submitted an accompanying encounter report signed 

by Ms. Mencel noting that appellant had received treatment for her left wrist. This report noted 

that appellant had complained of left wrist pain and had been having difficulty with range of 

motion since October 2014. Appellant had denied injury or trauma, but she noted that she 

worked as a scientist and performed repetitive hand motions with a pipette. She had experienced 

right hand pain earlier in August 2013 and had then used her left hand more frequently. 

By decision dated April 2, 2015, OWCP reviewed appellant’s claim on the merits, found 

that appellant had now established a diagnosis of localized osteoarthritis of the left forearm/wrist, 

but indicated that the case remained denied because the medical evidence failed to establish the 

causal relationship to her work factors. 

On June 10, 2015 appellant again requested reconsideration. In support of her 

reconsideration request, she submitted a June 10, 2015 note from Dr. Kuremsky indicating that 

appellant was treated for localized primary osteoarthritis of the wrist, and was able to work full 

duty. Appellant also submitted an encounter summary report by Dr. Kuremsky, also dated 

June 10, 2015, wherein he noted that she was a scientist in a laboratory and performed a lot of 

repetitive pipetting. Dr. Kuremsky opined that appellant had localized primary osteoarthritis of 
3

the wrist and osteoarthrosis of the carpometacarpal joint of the thumb. He further noted that she 

would be filing a workers’ compensation claim. 

By decision dated September 2, 2015, OWCP denied reconsideration without conducting 

a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2

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.3

 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.4

ANALYSIS 

OWCP found that appellant had established that she worked as a biologist, and performed 

repetitive pipetting with her hands. It also accepted that she had been diagnosed with localized 

osteoarthritis of the left forearm/wrist. However, OWCP denied appellant’s claim because she 

had not submitted medical evidence establishing a causal relationship between the osteoarthritis 

in the left forearm/wrist and the accepted factors of her federal employment. 

The last merit decision in this case was OWCP’s April 2, 2015 decision. The Board’s 

jurisdiction is restricted to reviewing OWCP decisions issued within 180 days of appellant’s 

October 8, 2015 date of filing for this appeal. Accordingly, the Board lacks jurisdiction to 

review the April 2, 2015 merit decision.5

Causal relationship is a medical issue and must be established by rationalized medical 

evidence. 

When appellant requested reconsideration on June 10, 2015 she submitted a new medical 

report from Dr. Kuremsky, wherein he noted a diagnosis of localized primary osteoarthritis of 

the wrist and osteoarthrosis of the carpometacarpal joint of the thumb. The Board notes that the 

conclusions in Dr. Kuremsky’s report of June 10, 2015 are largely repetitive of previously 

submitted medical evidence. The Board has held that evidence that is repetitive and duplicative 

of evidence previously of record is insufficient to warrant further merit review.6

 2 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[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). 

3 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608(b). 

5 Id. at § 501.3(e). 

6 D.K., 59 ECAB 141 (2007); see also L.K., Docket No. 14-1722 (issued September 29, 2015). 
4

Appellant submitted statements wherein she argued that her left wrist/forearm condition 

was causally related to her federal employment duties. However, as the underlying issue is 

medical in nature, medical evidence addressing causal relationship must be submitted. 

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

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

considered by OWCP, and has not submitted relevant and pertinent new evidence not previously 

considered by OWCP. Accordingly, the Board finds that she did not meet any of the necessary 

requirements and is not entitled to further merit review.7

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review on the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

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

Compensation Programs dated September 2, 2015 is affirmed. 

Issued: February 25, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

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