M.P. and U.S. Postal Service, Post Office, Grand Rapids, MI (Board decision, June 18, 2010)

ECAB final decision. The Board affirmed OWCP's August 17, 2009 denial of reconsideration without a merits review. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

M.P., a rural postal carrier with accepted shoulder injuries, had received schedule awards for permanent impairment of both arms. OWCP denied her request for larger awards, and she sought reconsideration. The new medical report she submitted gave a lower impairment rating than the awards she already held. The Board found that the report did not support increased impairment and was not relevant new evidence for reopening the claim. M.P. also presented no qualifying new legal argument. The Board affirmed OWCP's denial of reconsideration without deciding the underlying award claim again.

Decision snapshot

• Authority: Reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.
• Outcome: August 17, 2009 denial of reconsideration affirmed.
• Key point: A new medical report did not warrant reopening when its impairment rating did not support a larger schedule award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.P., Appellant
)
)
and ) Docket No. 09-2360
) Issued: June 18, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
Grand Rapids, MI, Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On September 28, 2009 appellant, through her representative, filed a timely appeal from the August 17, 2009 nonmerit decision of the Office of Workers’ Compensation Programs, which denied reconsideration of her schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this denial.

ISSUE

The issue is whether the Office properly denied appellant’s August 4, 2009 request for reconsideration under section 8128(a).

FACTUAL HISTORY

On October 28, 2003 appellant, then a 61-year-old rural carrier, filed a claim alleging that she developed a bilateral shoulder injury while delivering her mail route. The Office accepted her claim for aggravation of bilateral chronic rotator cuff tear. Appellant received schedule awards for an 11 percent impairment of her left upper extremity and a 12 percent impairment of her right upper extremity. In a decision dated September 22, 2008, the Office denied an increased schedule award. It found that further evaluation of appellant’s shoulders established only an eight percent impairment bilaterally.

On August 4, 2009 appellant requested reconsideration. She submitted the July 1, 2009 report of Dr. James E. Mann, who reported that the highest percentage that could be assigned for a full thickness rotator cuff tear was seven percent, according to Table 15-5, page 403 of the American Medical Association Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

In a decision dated August 17, 2009, the Office denied appellant’s August 4, 2009 request for reconsideration. It found that the request did not meet at least one of the three standards for reopening her case.

LEGAL PRECEDENT

The Office may review an award for or against payment of compensation at any time on its own motion or upon application.1 The employee shall exercise this right through a request to the district Office.2

An employee (or representative) seeking reconsideration should send the request for reconsideration to the address as instructed by the Office in the final decision. The request for reconsideration, including all supporting documents, must be in writing and must set forth arguments and contain evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously considered by the Office.3

A request for reconsideration must be sent within one year of the date of the Office decision for which review is sought.4 A timely request for reconsideration may be granted if the Office determines that the employee has presented evidence or argument that meets at least one of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the request is timely but fails to meet at least one of these standards, the Office will deny the request for reconsideration without reopening the case for a review on the merits.5

1
5 U.S.C. § 8128(a).
2
20 C.F.R. § 10.605.
3
Id. at § 10.606.
4
Id. at § 10.607(a).
5
Id. at § 10.608.

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 ANALYSIS

Following the Office’s September 22, 2008 merit decision denying an increased schedule award, appellant filed a timely request for reconsideration, but the medical evidence she submitted did not support that she had more than an 11 percent impairment of her left upper extremity or more than a 12 percent impairment of her right upper extremity, for which she previously received schedule awards. Dr. Mann reported that the highest rating appellant could receive under the new edition of the A.M.A., Guides was seven percent bilaterally.

This evidence while new is not relevant or pertinent to the Office’s September 22, 2008 decision. It does not establish that appellant has increased impairment to either upper extremity. For this reason, the Office properly found that appellant’s request for reconsideration failed to provide relevant and pertinent new evidence not previously considered by the Office. Appellant’s request also failed to show that the Office erroneously applied or interpreted a specific point of law, and it failed to advance a relevant legal argument not previously considered by the Office.

Because appellant’s August 4, 2009 request for reconsideration did not meet at least one of the three standards for reopening her case, the Board finds that the Office properly denied her request for a merit review. The Board will affirm the Office’s August 17, 2009 decision.

CONCLUSION

The Board finds that the Office properly denied appellant’s August 4, 2009 request for reconsideration.

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 ORDER

IT IS HEREBY ORDERED THAT the August 17, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 18, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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