L.C. and Department of the Navy, Marine Corps, Barstow, CA (Board decision, October 20, 2010)

ECAB final decision on reconsideration. The Board affirmed OWCP’s November 30, 2009 refusal to reopen L.C.’s knee injury claim. It did not decide the merits of the claimed injury. 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).

Plain-English summary

L.C., a Marine Corps equipment inspector, reported a knee injury after losing his balance in a man-lift basket at work. OWCP accepted the incident but denied the claim for lack of medical proof that it caused his diagnosed meniscus tear. When he sought reconsideration, he resubmitted records OWCP had already considered and supplied a radiology report diagnosing the tear. The Board found that the repeated records added nothing new and that the radiology report did not explain causation. It affirmed OWCP’s refusal to reopen the claim for merits review.

Decision snapshot

• Authority: FECA reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
• Outcome: November 30, 2009 refusal to reconsider affirmed; underlying injury claim was not reopened.
• Key point: A new diagnosis without an explanation linking it to the accepted incident did not address the reason OWCP had denied the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.C., Appellant
)
)
and ) Docket No. 10-742
) Issued: October 20, 2010
DEPARTMENT OF THE NAVY, MARINE
)
CORPS, Barstow, CA, 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
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On January 25, 2010 appellant filed a timely appeal from a nonmerit decision of the Office of Workers’ Compensation Programs dated November 30, 2009. The last merit decision was issued on September 3, 2008. Decisions issued by the Office on or after November 19, 2008 must be appealed within 180 days; decisions issued prior to November 19, 2008 were to be appealed within one year of the decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.

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 July 27, 2007 appellant, a 57-year-old industrial equipment repair inspector, filed a traumatic injury claim (Form CA-1) for a right strained knee that he sustained on June 13, 2007 when the brakes on the man-lift he was operating shuttered, which caused the basket to turn and threw appellant off balance.

Appellant submitted a report dated August 30, 2007, in which Dr. Paul A. Stanton, a Board-certified orthopedic surgeon, presented findings on examination and diagnosed a torn right-knee medial meniscus.

By decision dated September 10, 2007, the Office accepted that the identified employment incident occurred as alleged. It denied the claim because the evidence of record did not demonstrate that this employment incident caused a medically-diagnosed injury.

On June 11, 2008 appellant requested reconsideration.

Appellant submitted a note dated October 29, 2007 in which he described the June 13, 2007 incident and explained how it caused his injury.

By decision dated September 3, 2008, the Office denied modification of its September 10, 2007 decision.

On April 28, 2009 appellant requested reconsideration.

By decision dated May 13, 2009, the Office denied the request without conducting a merit review.

On August 19, 2009 appellant, through his attorney, requested reconsideration.

Appellant submitted a copy of his October 29, 2007 note and Dr. Stanton’s August 30, 2007 report.

On October 21, 2008 Dr. John H. Naheedy, a Board-certified diagnostic radiologist, reported that a magnetic resonance imaging (MRI) scan of appellant’s right knee revealed a torn medial meniscus.

By decision dated November 30, 2009, the Office denied the request without conducting a merit review.

LEGAL PRECEDENT

Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant to a review of an Office decision as a matter of right. This section vests the Office with discretionary authority to determine whether it will review an award for or against

1
5 U.S.C. §§ 8101-8193.

2 compensation.2 The Office, through regulations, has imposed limitations on the exercise of its discretionary authority under section 8128(a).3

To require the Office to reopen a case for merit review under section 8128(a) of the Act,4 the Office’s regulations provide that the evidence or argument submitted by 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.5 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.6 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 on the merits.7

ANALYSIS

Appellant’s reconsideration request did not demonstrate that the Office erroneously applied or interpreted a specific point of law, nor did it advance a relevant legal argument not previously considered by the Office. Therefore appellant was not entitled to reconsideration under the first two enumerated grounds.

Concerning the third enumerated ground, appellant submitted a copy of his October 29, 2007 note and Dr. Stanton’s report. 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.8 This evidence was previously of record and considered by the Office in rendering its prior decisions. Therefore, this evidence provides no basis for reopening appellant’s claim for further merit review.

Appellant also submitted Dr. Naheedy’s October 21, 2008 report. The issue underlying appellant’s claim was causal relationship. Dr. Naheedy diagnosed a right-knee medial meniscus tear but provided no reasoned discussion that explained how the accepted employment incident caused the condition he diagnosed. Lacking such discussion, his report is not relevant or pertinent to the issue underlying appellant’s claim and, consequently, provides no basis for reopening appellant’s claim for merit review.

2
Id. at § 8128(a).
3
Annette Louise, 54 ECAB 783, 789-90 (2003).
4
Under section 8128 of the Act, “[t]he 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). 5 20 C.F.R. § 10.606(b)(2).
6
Id. at § 10.607(a).
7
Id. at § 10.608(b).
8
James W. Scott, 55 ECAB 606, 608 n.4 (2004); Freddie Mosley, 54 ECAB 255 (2002).

3
 Appellant has not satisfied any of the above-mentioned criteria. The Board finds that the Office properly refused to reopen his case for merit review

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 30, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4