V.P. and U.S. Postal Service, Cincinnati Bulk Mail Center, Cincinnati, OH (Board decision, January 27, 2010)

ECAB final decision on a reconsideration request. The Board affirmed OWCP's April 6, 2009 refusal to reopen V.P.'s back injury claim for another merits review. It did not revisit whether her claimed condition was work related. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

V.P. sought to reopen a claim for a back condition that the Board had previously found unproven. In requesting reconsideration from OWCP, she resubmitted a physician's report that both OWCP and the Board had already reviewed. The Board found no new relevant evidence or legal argument meeting the requirements for a new merits review. It therefore affirmed OWCP's refusal to reopen the claim.

Decision snapshot

• Authority: Reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
• Outcome: OWCP's April 6, 2009 refusal to reopen the claim affirmed.
• Key point: Resubmitting a previously reviewed medical report did not justify another merits review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
V.P., Appellant
)
)
and ) Docket No. 09-1505
) Issued: January 27, 2010
U.S. POSTAL SERVICE, CINCINNATI BULK
)
MAIL CENTER, Cincinnati, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On May 11, 2009 appellant filed a timely appeal from an April 6, 2009 decision of the Office of Workers’ Compensation Programs that denied merit review. The most recent merit decision is a February 18, 2009 decision of the Board.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board’s jurisdiction is limited to a review of the April 6, 2009 nonmerit decision of the Office.

ISSUE

The issue is whether the Office properly refused to reopen appellant’s claim for merit review pursuant to 5 U.S.C. § 8128(a).

On appeal, appellant, through her attorney, asserts that the Office decision is contrary to fact and law.

1
5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49 ECAB 476 (1998). A decision of the Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d). Appellant did not seek reconsideration of the Board’s decision pursuant to 20 C.F.R. § 501.7(a).
FACTUAL HISTORY

This case has been before the Board on two prior occasions. By decision dated May 5, 2008, the Board found that the medical evidence of record was insufficient to establish that appellant sustained an employment-related back condition in November 2006. It affirmed an October 2, 2007 Office decision denying the claim.2 In a February 18, 2009 decision, the Board affirmed a September 3, 2008 merit decision of the Office. The Board reviewed a June 19, 2008 report from Dr. Martin Fritzhand, a Board-certified urologist, and found that appellant did not establish that she sustained an employment-related back condition in November 2006.3 The facts are set forth in the previous Board decisions and are incorporated herein by reference.

On March 15, 2009 appellant, through her attorney, requested reconsideration and resubmitted Dr. Fritzhand’s June 19, 2008 report. In a nonmerit decision dated April 6, 2009, the Office denied appellant’s reconsideration request.

LEGAL PRECEDENT

Section 8128(a) of the Federal Employees’ Compensation Act4 vests the Office with discretionary authority to determine whether it will review an award for or against compensation, either under its own authority or on application by a claimant.5 Section 10.608(a) of the Code of Federal Regulations provides that a timely request for reconsideration may be granted if the Office determines that the employee has presented evidence and/or argument that meets at least one of the standards described in section 10.606(b)(2).6 This section provides that the application for reconsideration must be submitted in writing and set forth arguments and contain evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new evidence not previously considered by the Office.7 Section 10.608(b) provides that when a request for reconsideration is timely but fails to meet at least one of these three requirements, the Office will deny the application for reconsideration without reopening the case for a review on the merits.8

ANALYSIS

In the March 15, 2009 request for reconsideration, appellant did not provide any argument of error. Appellant did not allege or demonstrate that the Office erroneously applied or

2
Docket No. 08-250 (issued May 5, 2008).
3
Docket No. 09-09 (issued February 18, 2009).
4
5 U.S.C. §§ 8101-8193.
5
Id. at § 8128(a).
6
20 C.F.R. § 10.608(a).
7
Id. at § 10.608(b)(1) and (2).
8
Id. at § 10.608(b).

2 interpreted a specific point of law, or advance a relevant legal argument not previously considered by the Office. Consequently, she was not entitled to a review of the merits of her claim based on the first and second above-noted requirements under section 10.606(b)(2).9

With respect to the third above-noted requirement under section 10.606(b)(2), on reconsideration appellant resubmitted a June 19, 2008 report from Dr. Fritzhand. This report had previously been reviewed by both the Board and the Office. Evidence that repeats or duplicates evidence of record has no evidentiary value and does not constitute a basis for reopening a case.10

As appellant did not show that the Office erred in applying a point of law, advance a relevant legal argument not previously considered, or submit relevant and pertinent new evidence not previously considered by the Office, it properly denied her reconsideration requests.11

CONCLUSION

The Board finds that the Office properly refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).12

9
Id. at § 10.606(b)(2).
10
Freddie Mosley, 54 ECAB 255 (2002).
11
Supra note 6.
12
The Board notes that appellant submitted evidence subsequent to the April 6, 2009 decision of the Office. The Board cannot consider this evidence, however, as its review of the case is limited to the evidence that was before the Office at the time it rendered its decision. 20 C.F.R. § 501.2(c); M.B., 60 ECAB ___ (Docket No. 09-176, issued September 23, 2009).

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 6, 2009 be affirmed.

Issued: January 27, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4