United States Department of Labor

Employees’ Compensation Appeals Board

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L.R., Appellant

and

TENNESSE VALLEY AUTHORITY,

Chattanooga, TN

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Docket No. 18-1780

Issued: June 13, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 25, 2018 appellant, through counsel, filed a timely appeal from a July 13, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated July 11, 2017, which became final after 30 days 

of issuance and is not subject to further review.2 As there was no merit decision by OWCP within 

180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

 

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 20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued 

July 1, 2015).

3 5 U.S.C. § 8101 et seq.
2

(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 pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On August 28, 2014 appellant, then a 43-year-old property maintenance worker, filed a 

traumatic injury claim (Form CA-1) alleging that he was stung on his top lip by a hornet while 

cutting vegetation on July 29, 2014 while in the performance of duty. He alleged that he had an 

allergic reaction to the sting and was hospitalized. Appellant’s supervisor completed the Form 

CA-1 and concurred that appellant was stung by an insect while performing job duties. He noted 

that appellant received medical treatment that day and returned to work on July 30, 2014. 

Appellant’s supervisor reported that appellant then claimed that he developed a groin infection and 

back injuries as a result of the sting. He noted that the employing establishment did not support 

appellant’s claim for a groin infection or back injuries as these conditions preexisted the

July 29, 2014 employment insect sting.

An August 4, 2014 report from Dr. W. David Bruce, an orthopedic surgeon, diagnosed

cervical nerve root pain and left shoulder joint pain. He reported on August 4, 2014 that 

appellant’s lumbar pain and left shoulder pain began a few days before when he was stung in the 

lip by a bee. Dr. Bruce noted that appellant was stung by a wasp and threw the loppers he was 

using after the sting. Appellant had an allergic reaction and had to go to the emergency room. 

Dr. Bruce found that since the sting and emergency treatment appellant had diffuse unrelenting 

pain in his shoulder radiating down his arm. He opined, “I have never seen Parsonage Turner 

Syndrome [PTS] result from a bite, but I suspect it could. This sounds like [PTS] to me, especially 

the amount of pain he is actually in.”

In an August 12, 2014 note, Dr. Bruce reviewed appellant’s treatment and failure to 

improve. He found, “I cannot rule out [PTS] as a direct result of his sting. It is rare but it does 

happen.” Dr. Bruce also noted that appellant had a pustule in his groin which appeared to be a 

staph infection.

In a letter dated September 18, 2014, OWCP requested additional factual and medical 

evidence in support of appellant’s consequential injury claim. It allowed 30 days for a response. 

 

4 Docket No. 17-0031 (issued July 11, 2017).
3

In a note dated September 18, 2014, Dr. Bruce again opined that appellant’s condition was 

PTS. He noted, “I think it is direct from the stings [appellant] got.” Dr. Bruce gave the differential 

diagnosis of PTS or brachial plexus disorder.

By decision dated October 23, 2014, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish causal relationship between his accepted 

insect sting on July 29, 2014 and any other medical condition.

On November 18, 2014 Dr. Bruce described appellant’s history of insect sting and initial 

treatment. He noted that appellant reported numbness and tingling which had been nonstop since 

the sting. Dr. Bruce reported that he requested electrodiagnostic testing to assist with the possible 

diagnosis of PTS. He noted that there was no standardized test for PTS and that it was a diagnosis 

of exclusion. Dr. Bruce reported that appellant made progress with nerve blocks which indicated 

that the original diagnosis of PTS developed from the sting was correct. He diagnosed PTS 

secondary to insect sting on July 29, 2014. Dr. Bruce again explained that to reach a diagnosis of 

PTS he had to rule out other possible diagnoses. He noted, “Prior to the sting on July 29th, 

[appellant] did not have a history of numbness and tingling in the upper extremity. The physical 

findings on his initial visit on August 4

th remained consistent if not worse on each subsequent visit 

until he received the nerve blocks.... After receiving the nerve blocks I saw some 

improvement....” Dr. Bruce again opined that the insect sting on July 29, 2014 was the origin of 

appellant’s condition.

On November 21, 2014 appellant, through counsel, requested an oral hearing from an 

OWCP hearing representative. He submitted his emergency room records from July 29, 2014 

which indicated that he sustained multiple stings to his face with swelling of his lip and throat.

In a note dated December 3, 2014, Dr. Bruce opined that appellant developed PTS and that 

the nerve blocks were working well for him. He found that there was no doubt that PTS was the 

correct diagnosis.

In a November 1, 2014 note, Dr. Bruce diagnosed PTS or brachial plexitis from the insect

sting. He opined that appellant’s testing was required to rule out other causes of his conditions. 

In a note dated January 7, 2015, Dr. Bruce again diagnosed PTS from the work-related stings. He 

opined that appellant’s condition fit the syndrome and the “way it happened.”

On March 9, 2015 appellant returned to regular duty. In a note dated June 4, 2015,

Dr. Bruce diagnosed PTS caused by a sting that occurred at work. He found that appellant had 

reached maximum medical improvement and provided an impairment rating.

On June 19, 2015 appellant testified at the oral hearing before an OWCP hearing 

representative. He indicated that while at work on July 29, 2014 he was stung on the upper lip by 

what he believed was a hornet. Appellant’s lip began to swell, his throat began to close, and he 

could not breathe. Appellant received emergency attention for his reaction to the sting. He 

testified that his left shoulder began hurting the afternoon of July 29, 2014 following the stings. 

Appellant reported for work the next day, but did not work an entire shift because his shoulder was 

hurting. He sought medical treatment for his left shoulder on August 4, 2014 with Dr. Bruce. 
4

OWCP’s hearing representative allowed appellant an additional 30 days to submit medical 

evidence.

By decision dated August 11, 2015, OWCP’s hearing representative reviewed the medical 

evidence and found that Dr. Bruce had not adequately explained how an insect bite would cause 

PTS. He further noted that Dr. Bruce had not indicated what test results confirmed the diagnosis 

of PTS. OWCP’s hearing representative concluded that Dr. Bruce did not provide rationalized 

medical opinion evidence and that his opinions were of reduced probative value. He found that 

appellant had not met his burden of proof to establish a consequential injury.

On January 28, 2016 appellant, through counsel, requested reconsideration from the 

August 11, 2015 decision of OWCP’s hearing representative. In support of this request, he 

submitted a medical narrative from Dr. Bruce dated January 12, 2016. Dr. Bruce diagnosed PTS

and opined that appellant’s insect bites resulted in this diagnosis. He concluded that as appellant’s 

insect bites were work related and caused the PTS. Dr. Bruce noted “The literature supports this 

in that other creatures and bites have resulted in [PTS] and this has been confirmed by neurologist.”

By decision dated August 5, 2016, OWCP denied modification. It found that appellant had 

not submitted medical evidence establishing a causal relationship between his accepted 

employment-related insect stings and his diagnosed condition of PTS.

On October 10, 2016 appellant, through counsel, appealed the August 5, 2016 decision to 

the Board. In its July 11, 2017 decision, the Board found that the medical evidence of record was 

insufficient to establish PTS or any other medical condition as a result of his accepted July 29, 

2014 insect sting.

On July 11, 2018 appellant, through counsel, requested reconsideration from OWCP. In 

support of this request, he provided a July 9, 2018 report from Dr. Bruce, who noted appellant’s 

history of an insect sting. Counsel reported that appellant required hospitalization due to throat 

swelling and was treated with epinephrine and steroids. Appellant then developed unrelenting 

shoulder pain. Dr. Bruce repeated his diagnosed of PTS or a form of brachial plexus neuritis. He 

noted that this condition was rare. Dr. Bruce reported, “I have no knowledge of whether insects 

have ever been reported [as causing PTS] but it is poorly understood.” He found that appellant’s 

electromyogram (EMG) and physical examination comported with PTS. Dr. Bruce concluded, “I 

do believe with a reasonable degree of medical certainty that it is related to this sting that he 

suffered.”

By decision dated July 13, 2018, OWCP denied appellant’s request for reconsideration of 

the merits pursuant to 5 U.S.C. § 8128(a). It found that Dr. Bruce’s July 8, 2018 report was 

cumulative and substantially similar to evidence previously considered.

LEGAL PRECEDENT

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

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 
5

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

evidence not previously considered by OWCP.5

A request for reconsideration must be received by OWCP within one year of the date of its 

decision for which review is sought.6 If it chooses to grant reconsideration, it reopens and reviews 

the case on its merits.7 If the request is timely, but fails to meet at least one of the requirements 

for reconsideration, OWCP will deny the request for reconsideration without reopening the case 

for review on the merits.8

ANALYSIS

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).

In his application for reconsideration, appellant did not show that OWCP erroneously 

applied or interpreted a specific point of law, and he did not advance a new and relevant legal 

argument not previously considered. Accordingly, 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).9

Appellant also did not submit relevant and pertinent new evidence not previously 

consideration by OWCP. Along with his reconsideration request, he provided a July 9, 2018 report 

from Dr. Bruce. This report merely reiterated his prior diagnosis and opinion on causal 

relationship without further rationale. As Dr. Bruce’s July 9, 2018 report repeats evidence already 

in the case record, it is duplicative and cumulative and fails to constitute relevant and pertinent 

new evidence.10 Therefore, this evidence is insufficient to require OWCP to reopen appellant’s 

claim for consideration of the merits.11 Thus, appellant is not entitled to further review of the 

merits of his claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3). 

As appellant’s request for reconsideration failed to meet any of the criteria under 20 C.F.R. 

§ 10.606(b)(3), the Board accordingly finds that OWCP properly denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 20 C.F.R. § 10.608.

 

5 20 C.F.R. § 10.606(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also H.H., supra note 5; M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see also H.H., supra note 5; E.R., Docket No. 09-1655 (issued March 18, 2010).

9 H.H., supra note 5.

10 T.T., Docket No. 18-1682 (issued February 22, 2019); P.H., Docket No. 18-1020 (issued November 1, 2018);

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

11 T.T., id.; L.H., id.
6

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 July 13, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 13, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board