United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

DEPARTMENT OF THE NAVY, 

PORTSMOUTH NAVAL SHIPYARD, 

Portsmouth, NH, Employer

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Docket No. 18-0152

Issued: October 1, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 26, 2017 appellant filed a timely appeal from an October 4, 2017 nonmerit 

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

elapsed from the last merit decision, dated April 19, 2017, 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 his claim pursuant to 5 U.S.C. § 8128(a).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 9, 2004 appellant, then a 35-year-old shipfitter, filed an occupational disease 

claim (Form CA-2) for bilateral hand tendinitis/tenosynovitis, which he attributed to using 

various tools at work. He identified September 23, 2003 both as the date he first became aware 

of his condition and when he first realized his bilateral hand condition was employment-related. 

Appellant did not stop work at the time he filed his Form CA-2. 

On October 19, 2004 OWCP accepted appellant’s claim for bilateral hand and wrist 

tendinitis/tenosynovitis. Approximately 12 years lapsed without any additional activity on 

appellant’s accepted occupational disease claim.

Effective April 1, 2016, appellant resigned from his position as a supervisory shipfitter. 

On June 16, 2016 appellant filed a claim for a schedule award (Form CA-7). At that time, 

the latest medical evidence of record dated back to September 8, 2004.

In a June 28, 2016 schedule award claim development letter, OWCP advised appellant 

that he needed to submit current medical evidence regarding the extent of any bilateral upper 

extremity permanent impairment. It further advised appellant to make arrangements with his 

treating physician for the submission of a narrative medical report, which included a final 

permanent impairment rating in accordance with the sixth edition of the American Medical

Association, Guides to the Evaluation of Permanent Impairment) (A.M.A., Guides).

2

 OWCP 

sent a similar development letter to appellant’s previous treating physician, Dr. Mayo A. 

Noerdlinger, a Board-certified orthopedic surgeon. However, Dr. Noerdlinger was unable to 

provide the requested permanent impairment rating because he had not seen appellant in two 

years.

OWCP prepared a statement of accepted facts (SOAF) and referred appellant for a second 

opinion evaluation to ascertain whether he had any permanent impairment due to his accepted 

employment injury.

In a report dated September 19, 2016, Dr. Scott F. Corneal, an osteopath and Boardcertified physiatrist and OWCP referral physician, noted that appellant’s clinical examination 

was fairly benign with mild left forearm discomfort with resisted left wrist flexion and mild 

tenderness over the interspace between the thumb and index finger, bilaterally. He diagnosed 

bilateral hand discomfort and numbness and tingling in the hands at night. Dr. Corneal noted 

that appellant’s symptoms were due to repetitive trauma to his hands from using air tools for 

many years. He found nine percent impairment for appellant’s upper extremity injuries. 

Dr. Corneal referenced Table 15-2, Digit Regional Grid, A.M.A., Guides at page 391. He found 

one percent digit impairment, for a class 1 soft tissue injury. Dr. Corneal then converted the 

individual digit impairments to 10 percent hand impairment, which corresponded to 9 percent 

upper extremity permanent impairment. In an October 28, 2016 supplemental report, he

 

2 A.M.A., Guides (6th ed. 2009).
3

clarified that appellant had 4.5 percent permanent impairment of each upper extremity, for a 

combined 9 percent permanent impairment of the upper extremities. 

On December 4, 2016 OWCP’s district medical adviser, Dr. David J. Slutsky,3reviewed 

the record, including Dr. Corneal’s impairment rating. He disagreed with Dr. Corneal’s 

impairment rating, and instead found zero percent bilateral upper extremity impairment. 

Dr. Slutsky rated appellant based on a diagnosis of tenosynovitis under Table 15-3, Wrist Regional 

Grid, A.M.A., Guides 395. The medical adviser noted that Dr. Corneal rated appellant using Table 

15-2 for digit impairment with a grade modifier of 2 for functional history; however, he failed to 

provide a QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score or document problems 

with activities of daily living to warrant this modifier. Dr. Slutsky further noted that Dr. Corneal 

apparently awarded one percent digit impairment for each finger and thumb, which was not 

supported by the medical evidence. He opined that appellant had zero percent permanent 

impairment of the right and left hand. The date of maximum medical improvement was 

September 19, 2016. 

On December 7, 2016 OWCP referred Dr. Slutsky’s report to Dr. Corneal for review and 

comment. 

In a decision dated April 19, 2017, OWCP denied appellant’s claim for a schedule award, 

finding that the evidence of record was insufficient to establish that he sustained permanent 

impairment to a scheduled member due to the accepted work injury. 

On July 17, 2017 appellant requested reconsideration. In a statement dated July 12, 2017,

appellant disagreed with both Dr. Corneal and Dr. Slutsky’s impairment ratings. He reported 

working for the employing establishment for 28 years as a welder and shipfitter and noted that he 

was unable to continue to work in this field due to his work injury. Appellant indicated that during 

his career he spent many hours using pneumatic tools and first reported his injury in 2003. He 

noted that everyday tasks such as holding a steering wheel, grasping a tool, or holding a telephone 

caused pain. Appellant noted informing Dr. Corneal of pain in his fingers, thumbs, hands, and 

lower arms, when grasping and holding objects. He further explained that the pain limited his 

daily activities and job opportunities. 

In a decision dated October 4, 2017, OWCP denied appellant’s request for reconsideration

of the merits of his claim. 

LEGAL PRECEDENT

Under section 8128(a) of FECA,4 OWCP has the discretion to reopen a case for review on 

the merits. It must exercise this discretion in accordance with the guidelines set forth in section 

10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain 

 

3 Dr. Slutsky is a Board-certified orthopedic surgeon.

4 5 U.S.C. § 8128(a).
4

review of the merits of his or her written application for reconsideration, including all supporting 

documents, sets forth arguments and contain evidence which:

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or

“(ii) Advances a relevant legal argument not previously considered by OWCP; or

“(iii) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”

5

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP 

without review of the merits of the claim.6

ANALYSIS

OWCP denied appellant’s claim for a schedule award because he had not established that 

he sustained permanent impairment to a scheduled member due to his accepted work injury. 

Thereafter, it denied appellant’s request for reconsideration of the merits of the claim. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

In his request for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law as he did not identify a specific point of law or show that it was 

erroneously applied or interpreted. Appellant did not advance a new and relevant legal argument

not previously considered. In a statement dated July 12, 2017, he disagreed with both Dr. Corneal 

and Dr. Slutsky, the medical adviser, regarding his impairment rating. Appellant indicated that he 

worked for the employing establishment for 28 years as a welder and shipfitter and was unable to 

continue to work in this field due to his work injury. He indicated that during his career he spent 

many hours using pneumatic tools. Appellant noted that he informed Dr. Corneal that he had pain 

in his fingers, thumbs, hands, and lower arms, and when grasping and holding objects, and that his 

pain limits his daily activities and job opportunities. This does not show a legal error by OWCP 

or a new and relevant legal argument. The underlying issue in this case is whether appellant 

sustained permanent impairment to a scheduled member due to the accepted work injury. That is 

a medical issue that must be addressed by relevant and pertinent new medical evidence.7 Appellant 

did not submit any pertinent new and relevant evidence in support of his claim. 

On appeal appellant reiterated that he disagreed with OWCP’s decisions dated April 19 

and October 4, 2017 and believed they contained inaccurate statements. As explained, the Board 

does not have jurisdiction over the merits of the case. 

 

5 20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b).

7 See Bobbie F. Cowart, 55 ECAB 746 (2004).
5

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

20 C.F.R. § 10.606(b)(3). 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. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the October 4, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 1, 2018

Washington, DC 

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board