United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer

__________________________________________

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Docket No. 18-1033

Issued: January 8, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 23, 2018 appellant filed a timely appeal from a March 13, 2018 nonmerit decision 

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

since the last merit decision, dated June 13, 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 to review the merits of this case.2 

ISSUE

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

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

 

1 5 U.S.C. § 8101 et seq.

2 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY

On February 20, 2013 appellant, then a 51-year-old retail and distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she developed tendinitis and a tear in her

right rotator cuff as a result of her repetitive employment duties. She noted that her duties entailed 

repetitively sorting bundles and packages, casing letters and flats, lifting packages and bundles, 

reaching constantly, pushing and pulling heavy equipment, and lifting tubs. Appellant noted that 

she first became aware of her condition on December 1, 2011 and of its relationship to her 

employment on February 7, 2013. She sought treatment with Dr. James A. Hill, a Board-certified 

orthopedic surgeon, and Dr. James W. Atchison, Board-certified in physical medicine and 

rehabilitation. On September 10, 2013 appellant underwent a right shoulder arthroscopy and 

debridement of a glenoid labrum tear. By decision dated January 8, 2014, OWCP accepted the 

claim for right shoulder sprain and right superior glenoid labrum lesion. It paid appellant wageloss compensation on the supplemental rolls as of September 11, 2013 and on the periodic rolls as 

of March 9, 2014. 

By decision dated September 18, 2015, OWCP expanded acceptance of the claim to 

include right causalgia upper limb (right shoulder complex pain syndrome) and right shoulder 

rotator cuff tear. 

On January 28, 2016 OWCP referred appellant, the case file, a series of questions, and a 

statement of accepted facts (SOAF) to Dr. James Elmes, a Board-certified orthopedic surgeon, for 

a second opinion evaluation. 

In his January 28, 2016 report, Dr. Elmes discussed appellant’s right shoulder history, 

noting that she had four previous right shoulder surgeries from June 20, 2003 through February 5, 

2005, as well as the most recent September 10, 2013 surgery following her occupational disease 

claim. He reviewed the medical and diagnostic reports of record and provided findings on physical 

examination. Dr. Elmes reported that appellant had no objective findings establishing residuals of 

her accepted right shoulder rotator cuff tear and complex regional pain syndrome. He noted that,

while she complained of perceived right shoulder pain, the diagnostic studies and objective 

examination findings failed to provide support for her continued work-related conditions. 

Dr. Elmes reported that appellant could return to work without restrictions and recommended six 

weeks of work conditioning. 

By letter dated February 17, 2016, OWCP provided Dr. Atchison and Dr. Hill a copy of

Dr. Elmes’ second opinion evaluation for review and comment on residuals of appellant’s workrelated condition and disability.

In a March 14, 2016 report, Dr. Atchison disagreed with Dr. Elmes’ findings. He reported 

that appellant’s physical examination findings pertaining to the right upper shoulder quadrant 

revealed that she experienced pain which provided objective support that she continued to suffer 

from residuals of her accepted right shoulder rotator cuff injury and complex regional pain 

syndrome. Dr. Atchison noted that, despite her right shoulder surgery, her symptoms did not 

change. Therefore, appellant’s ongoing pain was a problem in that region which had been 

accepted, but was unresponsive to the appropriate treatment attempted. Dr. Atchison opined that 

appellant was capable of future work-related activities, but that it would be more likely to occur if 
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she completed a functional restoration program. He further recommended a functional capacity 

evaluation (FCE) to determine her true physical capabilities. Dr. Atchison concluded that a fourweek interdisciplinary pain program with emphasis on functional restoration would benefit 

appellant in preparing her to return to work. 

On October 26, 2016 OWCP found a conflict of opinion between the reports of Dr. Elmes 

and Dr. Atchison. It referred appellant, the case file, a SOAF, and a series of questions to

Dr. Donald Kucharzyk, a Board-certified orthopedic surgeon, for an impartial examination to 

determine the nature and extent of her employment-related conditions and disability. 

In a November 30, 2016 report, Dr. Kucharzyk provided extensive review and summary of 

appellant’s medical history. He discussed an extensive right shoulder history which began in 2004 

following injury from a motor vehicle accident. Dr. Kucharzyk noted that appellant had four right 

shoulder surgeries prior to the September 10, 2013 work-related right shoulder arthroscopy. He

reported that appellant’s examinations and follow up in the pain clinic in 2014 and 2015 revealed 

that her work-up was negative, more specifically, the neurologic examination of the upper 

extremities was negative for cervical pathology, and the only finding was decreased range to 

motion of the cervical spine. Dr. Kucharzyk related that her magnetic resonance imaging (MRI)

scans from 2013 to 2015 were all negative and she was told she had chronic regional pain 

syndrome, which was never fully confirmed or fully diagnosed as she did not meet all of the criteria

for the condition.

Dr. Kucharzyk opined that appellant’s work-related right shoulder injuries had resolved 

and there was no evidence of shoulder pathology or reflex sympathetic dystrophy syndrome with 

chronic pain to the shoulder region. He explained that he did not find evidence of rotator cuff 

weakness or weakness to the supraspinatus, internal rotators or external rotators of the shoulder. 

Dr. Kucharzyk noted that neurological examination revealed normal findings. He further reported 

that radial, ulnar, median, and anterior interosseous nerve functions were intact and symmetrical, 

and sensory and motor examination were intact to both upper extremities. Dr. Kucharzyk reported 

that appellant required no further treatment to the right shoulder which would change her current 

pain pattern and condition. He recommended that appellant undergo an FCE. 

On January 13, 2017 OWCP referred appellant for an FCE which she underwent on 

March 16, 2017. On April 5, 2017 it referred the FCE report to Dr. Kucharzyk for review and 

comment. 

In an April 28, 2017 addendum report, Dr. Kucharzyk reported that appellant’s

employment-related right shoulder injuries had resolved. He noted that she had no other associated 

work-related diagnoses and the right shoulder was quiescent requiring no further treatment. 

Dr. Kucharzyk noted that the FCE was inconclusive and invalid. 

On May 10, 2017 OWCP notified appellant of a proposal to terminate her wage-loss 

compensation and medical benefits because her work-related injuries and disability had resolved. 

It found that the weight of the medical evidence rested with Dr. Kucharzyk, serving as the impartial 

medical examiner, who had determined that appellant was not experiencing residuals or disability 

connected to the February 7, 2013 occupational injury, as her conditions had ceased. Appellant 

was afforded 30 days to submit additional information. 
4

In medical reports dated August 18, 2016 through May 16, 2017, Dr. Hill diagnosed 

bilateral rotator cuff tendinitis with complex regional pain syndrome. He reported that appellant 

continued to experience pain and discomfort in her bilateral shoulders and limited range of motion 

in the cervical spine with several tender trigger areas in the trapezius. Dr. Hill noted that 

appellant’s work-related condition of complex regional pain syndrome had not resolved and was 

ongoing. He reported that appellant was unable to return to work in any capacity as her 

employment duties involved repetitive activities with the upper extremities. 

By decision dated June 13, 2017, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that same date, finding that the medical evidence of record 

established that she no longer had residuals related to the accepted work-related medical condition 

or continued disability as a result of the February 7, 2013 work injury. It found that the weight of 

the medical evidence rested with the opinion of Dr. Kucharzyk serving as the referee physician. 

On December 13, 2017 appellant requested reconsideration of OWCP’s decision. She

argued that she was not offered the opportunity to participate in a rehabilitation class to learn 

another skill in order to perform her duties despite her limitations. Appellant argued that she did 

not learn that her benefits had been terminated until after she met with a rehabilitation specialist 

and was unable to return to her previous job because of the weight requirements and repetitive 

motions. 

In support of her claim, appellant submitted medical reports dated May 16 through 

September 21, 2017 from Dr. Hill. In his reports, Dr. Hill noted a diagnosis of bilateral rotator 

cuff tendinitis with complex regional pain syndrome which he treated via epidural steroid 

injections. He reported that an August 20, 2017 MRI scan of the left shoulder revealed a high 

grade partial tear of her supraspinatus, some mild glenohumeral arthritic changes, and a 

longitudinal tear of the long head of the biceps. On September 11, 2017 appellant underwent a 

left shoulder arthroscopy, loose body removal, and debridement of rotator cuff and glenoid labrum 

tear. 

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

finding that she neither raised substantive legal questions, nor included relevant and pertinent new

evidence sufficient to warrant a merit review. It noted that the medical evidence submitted was 

cumulative and substantially similar to documentation previously considered and already 

contained in the case file.

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.3 

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

an award for or against compensation. OWCP may review an award for or against payment of 

compensation at any time based on its own motion or on application.4 To require it to reopen a 

 

3 20 C.F.R. § 10.607(a).

4 5 U.S.C. § 8128(a); A.D., Docket No. 18-0497 (issued July 25, 2018).
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case for merit review under FECA section 8128(a), its 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.5 

Section 10.608(b) of OWCP regulations provide that when an application for reconsideration does 

not meet at least one of the three requirements enumerated under section 10.606(b)(3), OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.6

ANALYSIS

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

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

7

In her timely request for reconsideration, appellant did not establish that OWCP 

erroneously applied or interpreted a specific point of law. She did not advance a new and relevant 

legal argument. Appellant argues that she continued to experience residuals of her employmentrelated injuries and was unable to perform her regular employment duties. The underlying issue 

in this case was whether she had continuing residuals or disability due to the accepted February 7, 

2013 employment injury after June 13, 2017. That is a medical issue which must be addressed by 

pertinent and relevant medical evidence.8 Appellant further argues that she was not provided an 

opportunity to participate in a rehabilitation class to learn a different skill. The Board notes that 

this argument has no reasonable color of validity as it has no bearing on the underlying issue.

9

 

Appellant’s request for reconsideration 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 by OWCP. Consequently, she was not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

With her reconsideration request, appellant submitted medical reports form Dr. Hill dated 

May 16 to September 21, 2017. The Board notes that these reports are substantially similar to 

those previously of record which were evaluated in OWCP’s June 13, 2017 merit decision.10 

Material which is duplicative of that already contained in the case record does not constitute a 

basis for reopening a case.11 To the extent that Dr. Hill reported that appellant continued to suffer 

from her work-related complex regional pain syndrome, this assessment was previously 

considered by OWCP in its June 13, 2017 decision when determining that the weight of the 

 

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

6 K.H., 59 ECAB 495 (2008). 

7 D.L., Docket No. 16-0342 (issued July 26, 2016).

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

9 Michael E. Smith, 50 ECAB 313 (1999).

10 This evidence is cumulative and substantially similar to evidence that was already contained in the case file and 

previously considered. A.L., Docket No. 08-1730 (issued March 16, 2009).

11 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).
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medical evidence remained with Dr. Kucharzyk.12 Furthermore, to the extent that his reports 

submitted on reconsideration focused on evaluation and treatment of appellant’s left shoulder, this 

condition was not alleged by appellant in this claim or accepted as work related. The Board has 

held that the submission of evidence which does not address the particular issue involved does not 

constitute a basis for reopening a case.13 A claimant may obtain a merit review of an OWCP 

decision by submitting relevant and pertinent new evidence.14 In this case, appellant failed to 

submit relevant and pertinent new medical evidence addressing the underlying issue of continued 

disability.

15

 

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 her claim pursuant to 5 U.S.C. § 8128(a).

 

12 A.H., Docket No. 17-0652 (issued April 25, 2018).

13 Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

14 Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a case. Eugene F. Butler, 36 ECAB 393 (1984).

15 M.H., Docket No. 13-2051 (issued February 21, 2014).
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ORDER

IT IS HEREBY ORDERED THAT the March 13, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board