United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

CENTER, Victorville, CA, Employer 

__________________________________________ 

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Docket No. 17-0022 

Issued: May 2, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 6, 2016 appellant filed a timely appeal from a September 8, 2016 nonmerit 

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

elapsed since the last merit decision dated November 5, 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 case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration of 

the merits of his claim under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On April 24, 2007 appellant, then a 43-year-old warden, filed a traumatic injury claim 

(Form CA-1) alleging that on April 16, 2007, while deploying munitions, he struck a pin object 

with his right hand. He also noted that in attempting to restrain a combative inmate, he further 

injured his right hand. Appellant noted that the soreness in his right hand radiated to his right 

wrist. On November 9, 2007 OWCP accepted his claim for right wrist sprain and closed fracture 

right carpal bone. It subsequently accepted appellant’s claim for bilateral carpal tunnel 

syndrome, other synovitis, and bilateral tenosynovitis of the hand and wrist. OWCP also later 

accepted his claim for bilateral carpal tunnel syndrome on December 17, 2009 in OWCP File 

No. xxxxxx673. It paid appellant compensation on the supplemental rolls beginning March 9, 

2010, and on the periodic rolls beginning November 21, 2010. 

On October 21, 2010 appellant underwent a right carpal tunnel release of the median 

nerve with decompressive neurolysis of the right wrist, flexor tenosynovectomy of the right 

wrist, and ulnar nerve decompression of the right wrist with distal forearm fascial release. On 

January 11, 2011 he underwent the same surgery on his left upper extremity. 

By letter dated July 28, 2015, OWCP noted that the claim in OWCP File No. xxxxxx673 

was open for medical treatment only, and doubled that claim with the present case. 

On August 12, 2015 OWCP referred appellant to Dr. Ronald Teed, a Board-certified 

orthopedic surgeon, for a second opinion to determine appellant’s disability status. In a 

September 9, 2015 report, Dr. Teed listed appellant’s diagnoses as right wrist sprain, resolved, 

accepted; closed fracture of carpal bone, right, healed, accepted; bilateral carpal tunnel 

syndrome, resolved, accepted; tenosynovitis and synovitis, bilateral, resolved, accepted; 

tenosynovitis of hand and wrist, bilateral, resolved, accepted; lumbar spine and chronic lower 

back pain, unrelated; cerebrovascular accident, unrelated; spondylosis of the lumbar spine, 

chronic disability; and functional overlay unrelated. He also related that appellant was receiving 

VA disability benefits secondary to a 1986 helicopter accident. Dr. Teed noted that appellant 

was eight years out from an on-the-job injury of April 16, 2007, and that the accepted conditions 

had resolved. He stated that appellant’s complaints were supported only by subjective findings 

and that there were no objective findings to support his complaints. Dr. Teed indicated that the 

etiology of appellant’s current subjective complaints were unknown, inorganic, and did not 

follow a classic presentation. He indicated that appellant was capable of performing his 

employment duties. 

On September 30, 2015 OWCP proposed terminating appellant’s wage-loss 

compensation and medical benefits as appellant no longer had any residuals from the accepted 

April 16, 2007 or December 17, 2009 work injuries. In a letter dated October 22, 2015, appellant 

alleged that Dr. Teed had not conducted a full examination and only spent two minutes in the 

examining room with him. He also alleged that Dr. Teed failed to obtain additional diagnostic 

tests. By decision dated November 5, 2015, OWCP finalized the termination of appellant’s 

wage-loss compensation and medical benefits. 

On June 14, 2016 appellant requested reconsideration. In support of his reconsideration 

request, appellant argued that the second opinion physician, Dr. Teed did not perform an 
3

electromyogram or nerve conduction velocity study and spent only 1 minute and 23 seconds in 

the office with him. 

Appellant also resubmitted a June 10, 2013 report from Dr. Rama T. Pathi, an orthopedic 

hand surgeon, which provided a permanent impairment evaluation. 

In a January 23, 2015 progress note, Dr. Sally L. Niles, a Board-certified physiatrist, 

found right carpal tunnel syndrome, mild, which may be consistent with residual changes after 

successful carpal tunnel surgery, bilateral ulnar entrapment at elbow, mild; no electrodiagnostic 

evidence for peripheral polyneuropathy in the upper extremities, no electromyogram evidence 

for cervical radiculopathy right side, and no electromyogram/nerve conduction velocity evidence 

of carpal tunnel syndrome, left. She issued bilateral ulnar flotation splints and educational 

material. Appellant also resubmitted a June 10, 2013 report from Dr. Pathi. 

By decision dated September 8, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of the case. 

LEGAL PRECEDENT 

Section 8128 of FECA vests OWCP with a discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.2

 To require OWCP to reopen a case for merit review under section 

8128(a) of FECA, 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 

The Board has reviewed the case record and finds that OWCP properly denied 

appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a). 

OWCP accepted appellant’s claim for right wrist sprain, closed fracture right carpal bone, 

bilateral carpal tunnel syndrome, bilateral tenosynovitis of the hand and wrist, and bilateral 

carpal tunnel syndrome. In the last merit decision, issued on November 5, 2015, OWCP 

terminated appellant’s medical and wage-loss compensation, effective November 3, 2015, as 

appellant no longer had residuals or continuing disability related to his accepted conditions. 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant did not advance a relevant legal 

 2 Id. at § 8128(a). 

3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.608(b). 
4

argument not previously considered. He alleged that Dr. Teed, the second opinion physician, 

had not conducted a proper examination, only spent a few minutes with him, and did not order 

further diagnostic tests. This argument was previously raised by appellant prior to the 

November 5, 2015 decision which terminated his compensation benefits. Evidence or argument 

that repeats or duplicates evidence previously of record has no evidentiary value and does not 

constitute a basis for reopening a case.5

 Consequently, appellant was not entitled to a review of 

the merits of the claim based on the first and second above-noted requirements under section 

10.606(b).6

In support of his reconsideration request, appellant submitted a June 10, 2013 report by 

Dr. Pahi that was already in the record. Evidence that is duplicative, cumulative, or repetitive in 

nature is insufficient to warrant reopening a claim for merit review.7

 

Appellant also submitted a new January 23, 2015 progress note, wherein Dr. Niles found 

right carpal tunnel syndrome, mild, which he believed could be consistent with residual changes 

after successful carpal tunnel surgery, bilateral ulnar entrapment at elbow, mild, no 

electrodiagnostic evidence for peripheral polyneuropathy in the upper extremities, no 

electromyogram evidence for cervical radiculopathy right side, and no electromyogram/nerve 

conduction velocity evidence of carpal tunnel syndrome, left. Dr. Niles gave appellant bilateral 

ulnar flotation splints and educational material. 

The underlying issue in this case was the termination of appellant’s wage-loss 

compensation and medical benefits. OWCP properly determined that this new progress note 

from Dr. Niles did not address whether appellant remained disabled as a result of his accepted 

injury. Therefore this progress note was not relevant to the underlying issue of appellant’s 

entitlement to continuing wage-loss benefits. The Board also finds that this progress note did not 

address any need for continuing medical treatment. 

Furthermore, while Dr. Niles related that appellant had bilateral ulnar entrapment at the 

elbow and that he had been given bilateral ulnar flotation splints, the Board notes that bilateral 

ulnar entrapment was not an accepted condition in this case. Evidence which does not address 

the issue before OWCP does not constitute relevant and pertinent new evidence and is 

insufficient to require OWCP to reopen the claim for consideration of the merits.8

 The progress 

note from Dr. Niles therefore does not constitute new and relevant pertinent evidence to support 

a finding that appellant required further medical treatment for the accepted conditions in this 

case. 

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

pursuant to 5 U.S.C. § 8128(a). 

 5 G.H., Docket No. 17-0030 (issued February 14, 2017). 

6 See E.Z., Docket No. 16-1744 (issued February 16, 2017). 

7 Denis M. Dupor, 51 ECAB 482 (2000). 

8 J.D., Docket No. 16-1253 (issued February 7, 2017). 
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ORDER 

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

Compensation Programs dated September 8, 2016 is affirmed. 

Issued: May 2, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board