Y.K. and Department of Defense, Defense Contract Management Agency, Carson, CA (Board decision, February 8, 2011)

ECAB final decision. The Board affirmed OWCP’s May 6, 2010 refusal to reopen Y.K.’s claim for merit 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).

Plain-English summary

Y.K., a Defense Department employee, asked OWCP to reconsider a claim based on alleged workplace harassment and unfair treatment. OWCP had denied the claim because the factual record did not substantiate those allegations. Her request repeated the allegations without new corroborating evidence or a new legal argument. The Board could review only the reconsideration refusal and affirmed it.

Decision snapshot

• Authority: FECA reconsideration, 5 U.S.C. § 8128(a).
• Outcome: May 6, 2010 refusal to reopen affirmed.
• Key point: A repeated allegation without new factual support did not qualify for merit review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
Y.K., Appellant
)
)
and ) Docket No. 10-1600
) Issued: February 8, 2011
DEPARTMENT OF DEFENSE, DEFENSE
)
CONTRACT MANAGEMENT AGENCY,
)
Carson, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On June 1, 2010 appellant filed a timely appeal from the May 6, 2010 nonmerit decision of the Office of Workers’ Compensation Programs, which denied reconsideration. The last merit decision of the Office was issued on August 13, 2009. As that decision is over 180 days from the date of this appeal, the Board is without jurisdiction to review the merits of this claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the Office’s nonmerit denial.

ISSUE

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

FACTUAL HISTORY

On February 17, 2009 appellant, then a 45-year-old management assistant, filed a claim alleging that her anxiety stress reaction and migraine headache were a result of harassment by her supervisor. She alleged, among other things, threats to fire her, harassment, termination of telework, failure to accommodate restrictions, setting her up, misleading her, a retaliatory performance evaluation, change of job title, manipulation and reprisal.

On August 13, 2009 the Office denied her claim on the grounds that she failed to establish as factual any of the alleged factors of employment. It noted that, in the absence of an established compensable factor of employment, the submitted medical evidence would not be discussed.

On January 27, 2010 appellant requested reconsideration. She stated that her licensed clinical psychologist/psychiatrist would mail new comprehensive medical reports supporting and describing the emotional condition she sustained as a result of a work-related injury. Appellant reiterated that her employer and supervisor exposed her to unconscionable and unfair treatment. She alleged threats to remove her from employment, refusal to accommodate restrictions, false accusations, hostile work environment and eventual removal.

In a decision dated May 6, 2010, the Office denied appellant’s request for reconsideration. It noted that no medical records accompanied her request. The Office found that appellant’s statement of unfair treatment was vague and general and her allegations previously considered in denying her claim. It found that her statement was therefore cumulative and did not warrant a merit review of the August 13, 2009 decision.

On appeal, appellant submitted 22 pages of medical records to support her claim that she asked the Board to review.

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 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).

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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

ANALYSIS

The only decision the Board may review is the Office’s May 6, 2010 nonmerit decision denying her request for reconsideration.

The issue is whether the request meets one of the standards for obtaining a merit review of her case.

Appellant’s request did not show that the Office erroneously applied or interpreted a specific point of law. It did not advance a relevant legal argument not previously considered by the Office. Appellant’s request contained no relevant and pertinent new evidence not previously considered by the Office. As noted, no medical evidence accompanied her request. The Office did not deny appellant’s claim for lack of sufficient medical evidence. It denied her claim finding that the factual evidence did not substantiate her allegations of harassment or other administrative error or abuse. The issue was one of proof, documentation corroborating the harassment alleged.

Appellant’s argument that her employer and supervisor exposed her to unconscionable and unfair treatment is not new. The Office considered her allegations when it adjudicated her case on August 13, 2009. Because appellant’s request for reconsideration does not meet at least one of the standards for obtaining a merit review of her case, the Board will affirm the Office’s May 6, 2010 decision denying her request.

On appeal, appellant submitted medical records for the Board to review. This evidence was not before the Office and cannot be considered by the Board for the first time on appeal.6 The Board lacks jurisdiction to review this material.

CONCLUSION

The Board finds that the Office properly denied appellant’s request for reconsideration.

5
Id. at § 10.608.
6
20 C.F.R. § 501.2(c)(1).

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 ORDER

IT IS HEREBY ORDERED THAT the May 6, 2010 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 8, 2011
Washington, DC

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

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

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

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