United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.B., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

New York, NY, Employer

__________________________________________

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Docket No. 22-0249

Issued: September 14, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 3, 2021 appellant, through counsel, filed a timely appeal from an October 26, 

2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant 

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 Counseldid not appeal from September 1, 2021 OWCP merit decision. He identified only the October 26, 2021 

nonmerit decision on the application for review (Form AB-1). As such, the September 1, 2021 merit decision is not 

properly before the Board on the current appeal. See 20 C.F.R. § 501.3; S.K., Docket No. 22-0248 (issued June27, 

2022); see also M.M., Docket No. 20-0523 (issued August25, 2020). 
2

to the Federal Employees’ Compensation Act (FECA)3 and 20 C.F.R. § 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.4

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).

FACTUAL HISTORY

On March 12, 2009 appellant, then a 48-year-old management/program analyst, filed an 

occupational disease claim (Form CA-2) alleging that her accepted bilateral carpal tunnel 

syndrome5 had been aggravated by new factors of her federal employment. She noted that she 

first became aware of the aggravation of her condition and realized its relation to her federal 

employment on March 10, 2009. OWCP accepted the claim for bilateral carpal tunnel syndrome. 

It authorized right carpal tunnel surgery and right wrist/forearm tendon release, which was 

performed on December 16, 2010. 

On February 16 and August 18, 2017 appellant filed a claim for compensation (Form 

CA-7) for a schedule award. 

In a report dated March 8, 2017, Dr. Kumar S. Reddy, a Board-certified orthopedic 

surgeon, found no clinical findings consistent with carpal tunnel syndrome although appellant had 

symptoms and opined that appellant had reached maximum medical improvement. He provided a 

permanent impairment rating for the left wrist utilizing Table 15-3 (Wrist Regional Grid) on page 

396 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides).

6

 Dr. Reddy concluded that appellant had six percent 

permanent impairment of the right upper extremity and eight percent permanent impairment of the 

left upper extremity.

On August 29, 2017 OWCP referred appellant’s case, along with a statement of accepted 

facts (SOAF), for a schedule award impairment rating with Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon serving as the district medical adviser (DMA). In a September 8, 2017 report,

Dr. Harris reviewed the medical record and SOAF. He disagreed with Dr. Reddy’sMarch 8, 2018

impairment rating report, noting he did not document any upper extremity neurologic impairment. 

Dr. Harris applied Table 15-23, page 449 of the A.M.A., Guides, and applied a grade modifier 1

3

5 U.S.C. § 8101 et seq.

4 The Board notes that,following the October 26, 2021 nonmerit decision and on appeal, OWCP received additional 

evidence and argument. However, the Board’s Rules of Procedureprovides: “The Board’s review of a case is limited 

to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP 

will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded 

from reviewing this additional evidence for the first time on appeal. Id.

5 Appellant referred to a 1997 OWCP claim ,which had been accepted for carpal tunnel syndrome under OWCP 

File No. xxxxxx382. 

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

based on abnormal test findings and intermittent symptoms without sensory deficits. He found 

that appellant had a final upper extremity permanent impairment rating of two percent permanent 

impairment of each upper extremity due to carpal tunnel syndrome. 

Dr. Reddy, in an October 23, 2017 supplemental report, found two percent permanent 

impairment of each upper extremity using Table 15-23, page 449. 

By decision dated March 26, 2018, OWCP granted appellant a schedule award for two

percent permanent impairment of each upper extremity. The award ran for 12.48 weeks during 

the period March 8 through June 3, 2017.

On April 2, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on July 25, 2018. By 

decision dated September 10, 2018, OWCP’s hearing representative affirmed the March 26, 2018 

schedule award decision. 

In an impairment rating dated October 22, 2018, Dr. Stewart A. Kaufman, a Boardcertified orthopedic surgeon, determined that appellant had six percent permanent impairment of 

each upper extremity.

On November 1, 2018 OWCP authorized left carpal tunnel surgery, which occurred on 

December 18, 2018. 

In a June 5, 2019 updated impairment rating, Dr. Kaufman reviewed an electromyogram 

(EMG) and, using Table 15-23, page 449, he opined that appellant had a grade modifier 2 for 

clinical studies (GMCS) due to conduction delay, a grade modifier of 2 for GMFH, and a grade 

modifier of 1 for GMPE, totaling 4 and averaging 1.3. He opined appellant had three percent 

permanent impairment of each upper extremity. 

On July 8, 2019 appellant filed a Form CA-7 for an increased schedule award. 

On October 25, 2019 OWCP referred appellant’s case, along with a SOAF, for a schedule 

award impairment rating to Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as 

the DMA. In a report dated November 12, 2019, Dr. Slutsky disagreed with Dr. Kaufman’s June 5, 

2019 impairment rating, noting that appellant’s preoperative diagnostic studies were normal and 

did not meet the criteria for carpal tunnel syndrome under the A.M.A., Guides. He noted that 

peripheral nerve compression was rated under Table 15-23, page 449 and could not be rated using 

either the diagnostic based impairment (DBI) or the range of motion (ROM) method. Thus, 

Dr. Slutsky concluded that appellant had a zero percent permanent impairment for bilateral carpal 

tunnel syndrome. 

By decision dated December 17, 2019, OWCP denied appellant claim for an increased 

schedule award.

On December 24, 2019 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review, which was held on April 1, 2020. 
4

In a report dated April 14, 2020, Dr. Nathan Hammel, a Board-certified orthopedic 

surgeon, serving as a DMA, opined that there was no support for additional carpal tunnel release. 

He noted that the 2018 left carpal tunnel release surgery had been medically necessary.

By decision dated May 19, 2020, OWCP’s hearing representative affirmed the right upper 

extremity permanent impairment rating. However, the hearing representative set aside the 

December 17, 2019 decision with regard to appellant’sleft upper extremity permanent impairment

and remanded for further development of the medical evidence.

On May 20, 2020 OWCP referred appellant’s case, along with a SOAF and 2016 

EMG/nerve conduction velocity (NCV) study, for an updated schedule award impairment rating 

with Dr. Slutsky. In a supplemental report dated June 7, 2020, Dr. Slutsky reiterated his findings 

and opinion that appellant had zero percent permanent impairment in each upper extremity for the 

accepted bilateral carpal tunnel syndrome. 

On June 15, 2020 OWCP requested clarification from Dr. Slutsky. In a June 7, 2020 

addendum report, Dr. Slutsky reviewed a 2016 EMG/NCV study, which he noted was a 

preoperative study of both hands and which was within normal limits. Thus, he again opined that 

appellant had zero percent permanent impairment in each upper extremity for the accepted bilateral 

carpal tunnel syndrome. 

In an August 30, 2020 supplemental report, Dr. Slutsky reviewed an April 14, 2020 report 

from Dr. Hammel and the May 19, 2020 hearing representative decision. He noted that

Dr. Hammel made no mention of an impairment rating in his report and there was no new 

additional information clarifying why appellant had previously received two percent impairment 

rating. Thus, Dr. Slutsky concluded that appellant had zero percent permanent impairment in each 

upper extremity due to the accepted bilateral carpal tunnel syndrome. 

By decision dated September 23, 2020, OWCP denied appellant’s claim for an increased 

schedule award.

On September 29, 2020 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. OWCP’s hearing representative 

conducted a preliminary review and issued a November 20, 2020 decision vacating the 

September 23, 2020 decision and remanding the case to OWCP for further development. The 

hearing representative determined that the only issue requiring a de novo decision was appellant’s

left upper extremity permanent impairment as appellant’s right upper extremity permanent 

impairment had been affirmed in the May 19, 2020 hearing representative’s decision.

On January 4, 2021 OWCP referred appellant’s case, along with a SOAF and 2016 

EMG/NCV study, to Dr. Slutsky for clarification regarding appellant’s left upper extremity 

permanent impairment.

In a report dated March 23, 2021, Dr. Slutsky reviewed Dr. Reddy’s reports from March 8 

to October 23, 2017, noting that Dr. Reddy failed to explain the reasons for his impairment rating 

and did not provide any grade modifies or perform a net calculation. He explained that the 

EMG/NCV study conducted prior to the December 18, 2018 left carpal tunnel release was a 

preoperative study of both hands. As the study was within normal limits, there was no ratable 
5

impairment according to the A.M.A., Guides. Dr. Slutsky reiterated his opinion that appellant had 

zero percent permanent impairment in each upper extremity due to the accepted bilateral carpal 

tunnel syndrome. 

By decision dated April 2, 2021, OWCP denied appellant’s claim for an increased schedule 

award for permanent impairment of the left upper extremity. 

On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on July 7, 2021. 

In a July 23, 2021 report, Dr. Marc Levinson, a Board-certified physiatrist, provided 

examination range of motion (ROM) findings. Appellant’s physical examination findings 

demonstrated decreased pain and sensory light touch to the bilateral median distribution, left hand 

thenar atrophy, and unremarkable test of the left-hand examination. Dr. Levinson diagnosed 

bilateral hand carpal tunnel syndrome, bilateral hand tenosynovitis, bilateral wrist strain, and 

bilateral hand overuse syndrome, which he found causally related to her employment injury. He

found appellant to be 50 percent temporarily impaired. 

By decision dated September 1, 2021, OWCP’s hearing representative affirmed the 

April 2, 2021 decision. 

In a report dated September 3, 2021, Dr. Levinson corrected the date appellant had carpal 

tunnel release surgery from 2016 to 2010. 

In a report dated September 3, 2021, Dr. Kate Nellans, a Board-certified orthopedic 

surgeon, diagnosed bilateral carpal tunnel syndrome, right thumb trigger finger, and right 

de Quervain’s tenosynovitis. She noted that appellant had right carpal tunnel release surgery in 

2010 and left carpal tunnel release surgery in 2018. On physical examination Dr. Nellans reported

full painless bilateral full elbow, wrist and fingers minus the right thumb motion, positive 

Finkelstein’s test, weakly positive bilateral Phalen’s test over wrist median nerve, and positive 

Tinel’s sign over ulnar nerve at the wrist. 

On October 15, 2021 appellant, through counsel, requested reconsideration. 

By decision dated October 26, 2021, OWCP denied appellant’s request for reconsideration 

of the merits of her claim. 

LEGAL PRECEDENT 

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

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.

7

7

5 U.S.C. § 8128(a); see L.D.,Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L.,Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
6

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.8

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

of OWCP’s decision for which review is sought.

9

 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.

10

 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.

11

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).

OWCP previously denied appellant’s claim for an increased schedule award because the 

medical evidence of record was insufficient to establish greater than two percent permanent 

impairment of the right upper extremity and two percent permanent impairment of the left upper 

extremity for which she previously received schedule award compensation. Thus, the Board must 

determine if appellant presented sufficient evidence or argument regarding her schedule award 

claim to warrant a merit review pursuant to 5 U.S.C. § 8128(a).12

In counsel’s October 15, 2021 reconsideration request, appellant did not show that OWCP 

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

legal argument not previously considered by OWCP. Accordingly, the Board finds that appellant 

is 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).13

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

not previously considered by OWCP. With her reconsideration request, appellant submitted a 

September 3, 2021 report from Dr. Levinson correcting the date of her right carpal tunnel release 

surgery and a September 3, 2021 report fromDr. Nellans providing physical examination findings, 

8

20 C.F.R. § 10.606(b)(3);see also S.S., Docket No. 18-0647 (issued October 15, 2018).

9

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’Compensation System (iFECS). Chapter 2.1602.4(b).

10 Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

11 Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

12 See A.M., Docket No. 21-1413 (issued March28, 2022); S.M., Docket No. 21-0392 (issued August12, 2012); 

H.T., Docket No. 20-1318 (issued April27, 2021).

13 S.W., Docket No. 22-0338 (issued July 8, 2022).
7

noting her medical history, and diagnosing bilateral carpal tunnel syndrome, right thumb trigger 

finger, and right de Quervain’s tenosynovitis. The underlying issue in the present case, however,

is whether appellant has established permanent impairment greater than two percent permanent 

impairment of the left upper extremity. The Board has held that the submission of evidence or 

argument, which does not address the particular issue involved does not constitute a basis for 

reopening a case.

14

 As the evidence submitted on reconsideration does not address permanent 

impairment, appellant is not entitled to a review of the merits of her claim based on the third 

requirement under 20 C.F.R. § 10.606(b)(3).15

The Board, accordingly, finds that appellant has not met any of the three requirements 

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

review.16

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).

14 A.M., Docket No. 20-1417 (issued July 30, 2021); E.J., Docket No. 19-1509 (issued January 9, 2020); M.K., 

Docket No. 18-1623 (issued April10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25(1979).

15 T.H., Docket No. 18-1809 (issued May 23, 2019); JohnnyL. Wilson, Docket No. 98-2536 (issued 

February13, 2001).

16 See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020); 

Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening 

the case for a review on the merits).
8

ORDER

IT IS HEREBY ORDERED THAT the October 26, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 14, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board