N.F. and U.S. Postal Service, Processing & Distribution Center, Brooklyn, NY (Board decision, August 10, 2010)

ECAB final decision. The Board affirmed OWCP's May 28, 2009 refusal to reopen N.F.'s schedule award claim for a merits review. It did not revisit the earlier award for 23 percent right arm impairment because the appeal came too late for review of that merits decision. The Board's decision binds OWCP and is generally not subject to court review under 5 U.S.C. § 8128(b). A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

N.F., a postal mail handler, received a schedule award for 23 percent impairment of his right arm after an accepted hand injury. He asked OWCP to reconsider the award and submitted a copy of a medical report already in the record. OWCP declined to reopen the claim. The Board found that N.F. had offered neither a new legal argument nor relevant new evidence, as required for reconsideration. His appeal was timely only as to the refusal to reopen, so the Board affirmed that decision without reviewing the impairment award itself.

Decision snapshot

• Authority: Reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
• Outcome: May 28, 2009 refusal to reopen affirmed; prior 23 percent right arm schedule award not reviewed.
• Key point: Resubmitting a medical report already considered by OWCP did not justify another merits review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.F., Appellant
)
)
and ) Docket No. 10-320
) Issued: August 10, 2010
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Brooklyn, NY,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas S. Harkins, 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 November 18, 2009 appellant, through his attorney, filed a timely appeal of a May 28, 2009 nonmerit decision of the Office of Workers’ Compensation Programs denying his request for reconsideration. Because more than 180 days elapsed from issuance of the most recent merit decision on December 15, 2008 to the filing of the appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE

The issue is whether the Office properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On December 17, 2004 appellant, then a 45-year-old mail handler and tugger operator, filed a traumatic injury claim alleging that he sustained a right pinky finger injury when his hand became caught between two postal containers on that date. He stopped work on the date of injury. By letter dated March 21, 2005, the Office accepted appellant’s claim for closed right fracture of the neck of the fifth metacarpal bone. On October 7, 2006 appellant returned to full- time modified-duty work. On November 20, 2006 he filed a claim for a schedule award.

On June 26, 2008 the Office found a conflict in medical opinion between Dr. Ajay K.
Misra, an attending Board-certified neurologist, and Dr. Frank M. Hudak, a Board-certified orthopedic surgeon and Office referral physician, regarding the extent of appellant’s permanent impairment. In a December 14, 2006 medical report, Dr. Misra listed his range of motion measurements regarding appellant’s right fingers and advised that appellant had causalgia or reflex sympathetic syndrome. In an April 17, 2007 report, Dr. Hudak found that appellant had 23 percent impairment of the right upper extremity based on the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).

By letter dated August 4, 2008, the Office referred appellant, together with a statement of accepted facts and the case record, to Dr. Edmunde A.C. Stewart, a Board-certified orthopedic surgeon, for an impartial medical examination. In an August 25, 2008 report, Dr. Stewart advised that appellant sustained 23 percent impairment of the right upper extremity based on the A.M.A., Guides. On October 5, 2008 an Office medical adviser agreed with Dr. Stewart’s rating of impairment to the right upper extremity.

In a decision dated December 15, 2008, the Office granted appellant a schedule award for 23 percent impairment of the right upper extremity based on Dr. Stewart’s opinion.

On March 14, 2009 appellant, through counsel, requested reconsideration of the December 15, 2008 decision. He submitted a duplicate copy of Dr. Misra’s December 14, 2006 report.

By decision dated May 28, 2009, the Office denied appellant’s request for reconsideration, finding that it neither raised substantive legal questions nor included new and relevant evidence and, thus, it was insufficient to warrant further merit review of his claim.

LEGAL PRECEDENT

To require the Office to reopen a case for merit review under section 8128 of the Federal Employees’ Compensation Act,1 the Office’s regulations provide that a claimant must: (1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument not previously considered by the Office; or (3) constitute relevant and pertinent new evidence not previously considered by the Office.2 To be entitled to a merit review of an Office decision denying or terminating a benefit, a claimant also must file his or her application for review within one year of the date of that decision.3 When a claimant fails to meet one of the above standards, the Office will deny the application for reconsideration without reopening the case for review of the merits.

1
5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a). 2 20 C.F.R. § 10.606(b)(1)-(2).
3
Id. at § 10.607(a).

2
 ANALYSIS

Appellant’s March 14, 2009 request for reconsideration did not allege or demonstrate that the Office erroneously applied or interpreted a specific point of law. Additionally, he did not advance a relevant legal argument not previously considered by the Office. Consequently, the Board finds that 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)(2).

Appellant also did not submit relevant and pertinent new evidence not previously considered by the Office. He resubmitted Dr. Misra’s December 14, 2006 report. This evidence was previously of record and reviewed by the Office. Duplicative evidence does not warrant reopening a case for further merit review.4

The Board finds that the Office properly determined that appellant was not entitled to a review of the merits of his claim pursuant to any of the three requirements under section 10.606(b)(2) and properly denied his March 14, 2009 request for reconsideration.5

CONCLUSION

The Board finds that the Office properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

4
See L.H., 59 ECAB ___ (Docket No. 07-1191, issued December 10, 2007); James E. Norris, 52 ECAB 93 (2000).
5
M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration without reopening the case for a review on the merits).

3
 ORDER

IT IS HEREBY ORDERED THAT the May 28, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: August 10, 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