United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.H., Appellant 

and 

DEPARTMENT OF LABOR, OCCUPATIONAL 

SAFETY & HEALTH ADMINISTRATION, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 17-0212 

Issued: August 4, 2017 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 3, 2016 appellant, through his representative, filed a timely appeal from an 

August 5, 2016 nonmerit decision of the Office of Workers’ Compensation Programs. As more 

than 180 days elapsed from the last merit decision of OWCP dated March 13, 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 to review 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 his claim pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant’s representative contends that the factual and medical evidence 

submitted in support of appellant’s request for reconsideration constitutes new evidence and 

argument not previously considered by OWCP. 

FACTUAL HISTORY 

On January 13, 2011 appellant, then a 25-year-old safety and occupational health 

specialist, filed an occupational disease claim (Form CA-2) alleging that on January 9, 2008 he 

first became aware of his bilateral carpal tunnel syndrome and severe eye impairment. He 

further alleged that on April 1, 2008 he first realized that his conditions were caused or 

aggravated by using a keyboard and mouse while simultaneously holding his wrist in awkward 

positions and gripping tightly for long periods of time at work. 

Appellant submitted medical and diagnostic reports dated January 17 to May 29, 2008. 

In a May 29, 2008 report, Dr. Luke I. Kao, a Board-certified neurologist, reviewed the results of 

a nerve conduction velocity and electromyogram (NCV/EMG) studies and assessed right C5-6 

radiculopathy and bilateral carpal tunnel syndrome, mild on the right and minimal on the left. 

By letter dated February 7, 2011, OWCP advised appellant of the deficiencies in his 

claim and requested that he submit additional factual and medical evidence. It also requested 

that the employing establishment respond to appellant’s allegations. 

In a February 12, 2011 letter, appellant requested an extension to respond to the 

February 7, 2011 development letter. He corrected his occupational disease claim form to reflect 

that he not only sustained bilateral carpal tunnel syndrome, but also hand repetitive strain 

injuries. 

OWCP received an unsigned return-visit patient sheet from Maryland Center for Eye 

Care dated February 18, 2005 which noted findings on examination and addressed appellant’s 

eye condition. 

In a March 14, 2011 report, Dr. Constantine A. Misoul, a Board-certified orthopedic 

surgeon, noted that appellant worked at the employing establishment from December 2005 until 

January 2008 as a safety specialist. He reported his bilateral hand and cervical and lumbar spine 

symptoms, described his work duties, provided findings on physical examination, and noted an 

impression of bilateral carpal tunnel syndrome. 

In a May 3, 2011 decision, OWCP denied appellant’s occupational disease claim, finding 

that the evidence of record did not establish fact of injury as the evidence failed to show that the 

claimed events occurred as alleged. It noted that he did not submit any factual evidence in 

response to the February 7, 2011 development letter. 
3

On May 23, 2011 appellant, through his representative, requested reconsideration. In a 

declaration dated May 16, 2011 and an undated affidavit, appellant attributed his carpal tunnel 

syndrome to his work duties. In the May 16, 2011 declaration he described the job duties which 

included repetitive hand, wrist, and finger motions; using automated office equipment 

approximately six to seven hours during his nine-hour workday; and archiving and sorting file 

documents, binders, references, and books, three to four hours a day, five days a week. 

Appellant attributed his increasingly worsening vision to his computer use. In the declaration he 

noted that he first noticed his claimed hand injury on January 4, 2008 while reaching overhead to 

get documents at work. Appellant’s right hand began to tingle around January 9, 2008. He also 

had continuous numbness in his right hand and experienced pain, numbness, and tingling in his 

wrist and finger. Appellant performed full-duty work until January 14, 2008 when he stopped 

work due to pain from his claimed occupational disease. In the undated affidavit, he contended 

that his hand injury and pain were exacerbated by working at a fast pace and in a fixed posture 

for long durations without being afforded sufficient recovery time. Appellant attributed his eye 

condition to poor lighting in his work area. 

Appellant submitted a copy of his job description as a safety and occupational health 

specialist. It included reviewing and analyzing available materials on the employing 

establishment’s program, developing an evaluation plan for the employing establishment, 

coordinating the selection of sites for and to conduct field reviews by regional offices, 

participating in opening conferences with employing establishment safety and health officials 

and managers to discuss an evaluation plan, and conducting or leading on-site headquarters 

evaluation of the employing establishment. It also included analyzing field evaluation reports 

and findings of headquarters reviews to develop recommendations for improving program 

effectiveness, briefing appropriate supervisors and employing establishment officials on findings 

and recommendations preparatory to a closing conference, and participating in a closing 

conference and preparing a final report and executive summary for submission by the Secretary 

of Labor to an employing establishment head being evaluated and for submission with the 

employing establishment’s comments to the Office of Management and Budget. 

Appellant also submitted a July 23, 2008 report from Dr. Michael A. Franchetti, a Boardcertified orthopedic surgeon, a June 7, 2011 NCV/EMG study report from Dr. Kao, and a work 

capacity evaluation (Form OWCP-5c) with an illegible date from Dr. Hampton J. Jackson, Jr., a 

Board-certified orthopedic surgeon. The physicians diagnosed occupationally-related lumbar, 

cervical, bilateral hand, and right shoulder conditions and noted appellant’s disability from work. 

In a June 24, 2011 memorandum, the employing establishment disagreed with appellant’s 

description of his work duties and advised that he was involved in a broad range of activities, 

allowed one hour a day for lunch, routinely took several breaks throughout the day, did not work 

six to seven hours a day at his computer, and was not forced to perform repetitive hand and 

finger motions or work at a fast pace and in a fixed position at his workstation. It noted that he 

was not at work on January 4, 2008 as he was on scheduled annual leave and it did not receive 

notice of his injury and limitations prior to the filing of his claim. 

In a July 20, 2011 statement, appellant disagreed with the employing establishment’s 

June 24, 2011 memorandum. He asserted that he performed work duties and sustained injuries, 

as he had alleged. 
4

By decision dated July 28, 2011, OWCP denied modification of the May 3, 2011 

decision. It found that appellant did not submit any evidence to establish the claimed work 

factors and that the employing establishment disputed his account. 

On August 29, 2011 OWCP received a July 19, 2011 report from Dr. Jackson which 

noted findings on examination and found that appellant had bilateral carpal tunnel syndrome 

causally related to the injury which manifested on January 9, 2008. 

In a letter dated July 20, 2012, appellant, through his representative, requested 

reconsideration and submitted an August 9, 2011 report from Dr. Eric G. Dawson, an orthopedic 

surgeon. Dr. Dawson noted appellant’s work duties as a safety specialist at the employing 

establishment, conducted an examination, and reviewed diagnostic test results. He opined that 

appellant’s bilateral carpal tunnel syndrome, right worse than left side, was due to his repetitive 

work motions. Dr. Dawson advised that he was not able to return to his work duties. 

In an October 17, 2012 decision, OWCP denied modification of the July 28, 2011 

decision. 

On June 14, 2013 appellant requested reconsideration and contended that a declaration of 

W.R., a former coworker, should cure the deficiencies in his claim. In a partial copy of his 

May 11, 2013 affidavit, W.R. noted that he and appellant had similar work duties as safety and 

health specialists at the employing establishment. Based on his observation, appellant’s duties 

were technical in nature and required him to spend many hours a day at his workstation. W.R. 

indicated that while a position description provided that appellant was required to attend 

meetings and professional development conferences, these duties were not indicative of a routine 

day. He maintained that his computer station duties subjected him to more than a usual risk for 

sustaining neck, shoulder, back, and waist injuries than a nonvisually challenged employee. 

In an August 12, 2013 decision, OWCP denied further merit review of appellant’s claim. 

It found that the evidence submitted was irrelevant or immaterial.3

On September 17, 2013 appellant requested reconsideration. In an undated affidavit, 

W.R. noted his own work duties as a safety and health specialist. He also noted that on several 

occasions he witnessed that appellant’s physical difficulties impacted his work capability. W.R. 

related appellant’s account of the overwhelming effect a project he worked on for two to three 

months archiving and filing old documents had on his health. 

In a December 16, 2013 decision, OWCP denied modification of the August 12, 2013 

decision. It found that W.R.’s affidavit was insufficient to establish appellant’s claimed 

employment factors. 

On December 15, 2014 appellant’s representative requested reconsideration and 

contended that a report from Dr. Eric L. Weisbrot, a specialist in family medicine, established a 

 3

 In the August 12, 2013 decision, it appears that OWCP did not review W.R.’s May 11, 2013 affidavit. It listed 

the evidence submitted in support of appellant’s June 8, 2013 request for reconsideration, but did not list or address 

W.R.’s May 11, 2013 affidavit. 
5

causal relationship between appellant’s bilateral carpal tunnel syndrome and work duties. In a 

December 12, 2014 report, Dr. Weisbrot noted appellant’s safety and occupational health 

specialist work duties, provided findings on physical examination, and opined that appellant had 

carpal tunnel syndrome causally related to his work duties. 

In a March 13, 2015 decision, OWCP denied modification of the December 16, 2013 

decision. It found that appellant failed to submit a detailed and accurate description of the work 

duties he believed caused his bilateral carpal tunnel syndrome. 

On March 10, 2016 appellant’s current representative requested reconsideration. He 

contended that another affidavit from W.R. established appellant’s work duties. Appellant’s 

representative further contended that a report from Dr. Michael E. Batipps, a Board-certified 

neurologist, established causal relationship between appellant’s medical conditions and his job 

duties. 

In a March 9, 2016 affidavit, W.R. provided essentially the same description of 

appellant’s work duties and his physical difficulties with performing these duties as set forth in 

his May 11, 2013 and undated affidavits. 

In a June 11, 2015 report, Dr. Batipps noted appellant’s complaints of chronic daily 

cervical, bilateral shoulder, hand, and back symptoms. He related appellant’s account of 

working as a safety specialist commencing in 2005 through January 4, 2008 and the development 

of his symptoms while working in this position. In 2005, appellant was required to constantly 

lift and carry large records, books, and supplies. In 2007, he was required to perform repetitive 

motions with both upper extremities during filing activities. Appellant also performed extensive 

computer keyboard activities. On January 4, 2008 he was required to reach overhead with his 

right hand to obtain a heavy reference book. Dr. Batipps noted a history of appellant’s medical 

treatment and reported findings on neurological examination. He provided an impression of a 

January 4, 2008 work injury, cervical disc herniations with right cervical radiculopathy, right 

shoulder rotator cuff partial tear with chronic right shoulder pain, and chronic lumbosacral 

radiculopathy. Dr. Batipps advised that the diagnosed conditions were due to the January 4, 

2008 work injury. He also noted an impression of repetitive stress injuries, both upper 

extremities, due to work-related activities with resultant bilateral carpal tunnel syndrome. 

Dr. Batipps opined that appellant was totally disabled due to the diagnosed conditions based on 

objective test results and his examination findings. 

By decision dated August 5, 2016, OWCP denied reconsideration of the merits of 

appellant’s claim. It found that the evidence submitted was repetitious, irrelevant, or immaterial. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

 4 Supra note 2. Under section 8128 of FECA, the 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). 
6

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously 

considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant’s application for review must be received within one year of the 

date of that decision.6

 Section 10.608(b) of the implementing regulations state 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.7

ANALYSIS 

On March 10, 2016 appellant, through his representative, requested reconsideration of the 

March 13, 2015 decision that denied modification of the denial of his occupational disease claim. 

The underlying issue on reconsideration is factual in nature, whether appellant established the 

claimed factors of his federal employment that were alleged to have caused his claimed 

conditions. 

In his March 10, 2016 request for reconsideration, appellant’s representative did not show 

that OWCP erroneously applied or interpreted a specific point of law, or advance a new and 

relevant legal argument not previously considered. Thus, appellant is not entitled to a review of 

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

10.606(b)(3). 

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered. W.R.’s March 9, 2016 affidavit, while new, essentially reiterated his 

previous description of appellant’s work duties and physical difficulties with performing his 

work duties as set forth in earlier affidavits. 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.8

Dr. Batipps’ new report dated June 11, 2015 related appellant’s account of constantly 

lifting and carrying large records, books, and supplies, repetitive use of his upper extremities 

when filing and performing computer keyboard activities, and reaching overhead with his right 

hand to obtain a heavy reference book. However, Dr. Batipps is not qualified as a finder of fact 

in this case as there is no evidence that he had direct knowledge of appellant’s employment 

duties at the time in question. Furthermore, Dr. Batipps’ medical opinion with respect to the 

cause of appellant’s condition is irrelevant to the underlying factual issue.9

 Evidence which does 

 5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.607(a). 

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

8

 D.K., 59 ECAB 141 (2007). 

9 See Bonnie A. Contreras, 57 ECAB 364 (2006) (where a claimant did not establish an employment incident 

alleged to have caused an injury, it was not necessary to consider any medical evidence). 
7

not address the particular issue under consideration does not constitute a basis for reopening a 

case.10 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

On appeal, appellant’s representative contends that the factual and medical evidence 

submitted in support of appellant’s request for reconsideration constitutes new evidence and 

argument not previously considered by OWCP. As found, however, appellant did not submit 

relevant and pertinent new evidence with his reconsideration request. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 4, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 See K.T., Docket No. 15-1916 (issued February 1, 2016).