W.M. and Department of Commerce, Census Bureau, Charlotte, NC (Board decision, November 19, 2012)

ECAB final decision on reconsideration. The Board affirmed OWCP's January 4, 2012 refusal to reopen W.M.'s injury claim. It did not review the underlying claim on the merits. 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

W.M. asked OWCP to reconsider a denied work injury claim. He supplied no new evidence with the request and did not identify a legal error or a new relevant argument. The Board found that none of the requirements for reopening a claim had been met. It affirmed OWCP's refusal to conduct another merits review.

Decision snapshot

• Authority: FECA reconsideration under 5 U.S.C. § 8128(a).
• Outcome: January 4, 2012 refusal to reopen affirmed.
• Key point: A reconsideration request needs a qualifying new argument, legal issue, or evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.M., Appellant
)
)
and ) Docket No. 12-1058
) Issued: November 19, 2012
DEPARTMENT OF COMMERCE, CENSUS
)
BUREAU, Charlotte, NC, Employer
)
__________ )

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

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On April 9, 2012 appellant filed a timely appeal from the January 4, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from the last merit decision of June 6, 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 to review 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 contends that OWCP erred in denying his claim because they did not understand the situation and did not behave in a proper manner.

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

On May 28, 2010 appellant, then a 56-year-old enumerator, filed a claim alleging that, as a result of extensive walking and bending, he sustained an injury to his lower back and right thigh. By decision dated December 3, 2010, OWCP denied appellant’s claim. It determined that, although appellant had established that the employment factors occurred, he had not established that the injury or medical condition was causally related to the compensable work factors. This decision was affirmed by a hearing representative on June 6, 2011. The hearing representative determined that appellant had not established that he sustained a back injury in the performance of duty causally related to factors of his federal employment.

By letter received by OWCP on December 21, 2011, appellant requested reconsideration.
He indicated that he had new evidence to be considered. No new evidence was received by OWCP. The record also contains a December 15, 2011 letter from appellant’s congressman requesting that appellant’s claim be reopened. No new evidence was submitted by OWCP.

By decision dated January 4, 2012, OWCP denied appellant’s claim for reconsideration.

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

OWCP denied appellant’s claim because he had not established an injury that was causally related to the established factors of federal employment. On appeal, appellant addresses the merits of his case. However, the last merit decision in this case was the hearing representative’s decision of June 6, 2011. As previously stated, this decision was issued over 180 days prior to the filing of this appeal and, accordingly, the Board does not have jurisdiction

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).

2 to review the merits of the case.6 The only issue before the Board is whether OWCP properly denied appellant’s reconsideration request.

Appellant submitted no new evidence with his request for reconsideration. Furthermore, he did not argue that OWCP erroneously interpreted or applied a specific point of law nor did he advance a relevant legal argument not previously considered. Accordingly, OWCP properly denied appellant’s request for reconsideration.

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 January 4, 2012 is affirmed.

Issued: November 19, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6
Id. at § 501.3(e).

3