J.L. and Department of Veterans Affairs, Regional Office, Seattle, WA (Board decision, May 25, 2012)

ECAB final decision on reconsideration. The Board affirmed OWCP's October 17, 2011 refusal to reopen J.L.'s occupational disease claim. It did not decide the underlying claim anew. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. 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

J.L., a VA veterans service representative, claimed that desk work aggravated neck, arm, wrist, and hand conditions. OWCP denied the claim for insufficient medical support. She sought reconsideration with a later report from her chiropractor. The Board found that the report repeated an earlier opinion and still did not give a reasoned explanation connecting the condition to work. It affirmed OWCP's refusal to reopen the claim for a merits review.

Decision snapshot

• Authority: Reconsideration criteria under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
• Outcome: October 17, 2011 refusal to reopen affirmed; claim merits not reviewed.
• Key point: A repetitive report without a medical causation explanation did not warrant reopening.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.L., Appellant
)
)
and ) Docket No. 12-224
) Issued: May 25, 2012
DEPARTMENT OF VETERANS AFFAIRS,
)
REGIONAL OFFICE, Seattle, WA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On November 22, 2011 appellant, through counsel, filed a timely appeal from the October 17, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for further review of his claim. As more than 180 days elapsed from the last merit decision of March 8, 2011 and the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 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 OWCP properly denied appellant’s request for reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

On appeal, appellant’s counsel contends that the decision of OWCP was contrary to fact and law.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On June 10, 2010 appellant, then a 43-year-old veteran’s service representative, filed an occupational disease claim alleging the condition in her neck, arms, wrists and hands has been aggravated from excessive sitting at her desk to perform her job.

By decision dated August 4, 2010, OWCP denied appellant’s claim. In an August 11, 2010 decision, it set aside its August 4, 2010 decision as new evidence was submitted which had been mistakenly filed with another claim. OWCP again denied appellant’s claim on the grounds that appellant had not submitted medical evidence containing a medical diagnosis in connection with the incident and/or events other than pain, nor had she established a medical condition causally related to the alleged incident or events.

Appellant requested a hearing before an OWCP hearing representative and submitted new evidence, including a November 30, 2010 report, by Dr. Brian J. Stemp, a chiropractor. In this report, Dr. Stemp reviewed appellant’s x-rays and determined that subluxations were present at levels C4-5, C5-6 and C6-7. He noted that appellant was complaining of neck pain, tightness and pulling of the cervicothoracic paraspinal muscles, neuralgia, tingling and numbness to the extremities and muscle weakness. Dr. Stemp opined that the symptoms from which appellant were suffering were a direct result of the injury she sustained on March 31, 2009.

In a March 8, 2011 decision, the hearing representative affirmed the August 11, 2010 decision denying appellant’s claim. The hearing representative found that the medical evidence contained no reasoned statement to explain how the claimant’s medical condition was related to work, especially given the inconsistent history of injury provided by the claimant to her medical providers.

By letter dated July 21, 2011, appellant requested reconsideration. In support of her reconsideration request, she submitted a March 31, 2011 report by Dr. Stemp wherein he noted that he has treated appellant for 10 years, that he reviewed appellant’s records, x-rays and reports and noted that appellant’s chief complaints consisted of cervical pain and muscle spasm with associated paresthesia affecting primarily her right arm extending in her hand. He listed his diagnosis as vertebral subluxation present at levels C4-5, C5-6, C6-7 and C7-T1, and noted that subluxations at these levels can cause the type of symptoms that appellant is complaining of as a result of the March 31, 2009 injury. He concluded that, within a reasonable degree of chiropractic certainty, the condition from which appellant is suffering is the direct result of the injury she sustained on March 31, 2009.

By decision dated October 17, 2011, OWCP denied appellant’s request for reconsideration without reviewing the merits of the case.

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 LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2 OWCP’s regulations provide that the evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review of an OWCP 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.4 When a claimant fails to meet one of the above standards, OWCP will deny the application for reconsideration without reopening the case for review on the merits.5

ANALYSIS

The Board finds that appellant has not shown that OWCP erroneously applied or interpreted a specific point of law, has not advanced a relevant legal argument not previously considered by OWCP and has not submitted relevant and pertinent new evidence not previously considered by OWCP.

In requesting reconsideration, appellant did not contend that OWCP erroneously applied or interpreted a specific point of law nor did she advance a relevant legal argument not previously considered by OWCP. Appellant did submit new evidence, i.e., a March 31, 2011 report by her chiropractor, Dr. Stemp, wherein he discussed appellant’s medical tests and reports. He noted appellant’s complaints of cervical pain and muscle spasms and concluded that, within a reasonable degree of chiropractic certainty, the condition from which appellant was suffering was the direct result of the injury she sustained on March 31, 2009. Dr. Stemp’s report mirrors his earlier report, which OWCP had already considered. More importantly, it failed to provide a rationalized opinion on causal relationship. The Board has held that the submission of evidence or argument which repeats or duplicates evidence or argument already in the case record does not constitute a basis for reopening a case.6

The Board finds that appellant has not shown that OWCP erroneously applied or interpreted a specific point of law, has not advanced a relevant legal argument not previously considered by OWCP and has not submitted relevant and pertinent new evidence not previously considered by OWCP.

2
5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[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). 3 20 C.F.R. § 10.606(b)(2).
4
Id. at § 10.607(a).
5
Id. at § 10.608(b).
6
T.M., Docket No. 11-1882 (issued March 27, 2012); see also Eugene F. Butler, 36 ECAB 393, 398 (1984).

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 CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 17, 2011 is affirmed.

Issued: May 25, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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