L.P. and U.S. Postal Service (Board decision, October 17, 2012)

ECAB final decision reviewing OWCP’s reconsideration denial. The Board affirmed OWCP's December 22, 2011 refusal to reopen L.P.'s schedule award claim. 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

L.P., a postal employee, asked OWCP to reconsider a schedule award decision. The Board found that the application did not satisfy the requirements for renewed merits review. It affirmed OWCP's refusal to reopen the impairment claim.

Decision snapshot

• Authority: Reconsideration threshold.
• Outcome: Refusal to reopen affirmed.
• Key point: The application did not warrant a new schedule award ruling.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.P., Appellant
)
)
and ) Docket No. 12-1256
) Issued: October 17, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Edmond, OK, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On May 24, 2012 appellant filed a timely appeal of a December 22, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), denying her application for reconsideration without merit review of the claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the December 22, 2011 nonmerit decision. Since more than 180 days has elapsed between the last merit decision on August 12, 2011 and the filing of this appeal, the Board lacks jurisdiction to review the August 12, 2011 decision pursuant to 20 C.F.R. § 501.3(e).

ISSUE

The issue is whether OWCP properly found that appellant’s application for reconsideration was insufficient to warrant a merit review of the schedule award claim pursuant to 5 U.S.C. § 8128(a).

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

On December 7, 2010 appellant, then a 50-year-old rural carrier, filed an occupational disease claim (Form CA-2) alleging that she sustained a left elbow condition causally related to her federal employment. OWCP accepted the claim for left elbow lateral epicondylitis and left radial nerve lesion. Appellant received compensation for intermittent wage-loss commencing January 29, 2011. She underwent a left elbow medial debridement surgery on March 11, 2011.

On June 27, 2011 appellant submitted a claim for compensation (Form CA-7) indicating she was claiming a schedule award. In a report dated May 31, 2011, Dr. Thomas Lehman, an orthopedic surgeon, indicated that appellant was being treated for left wrist pain. He provided a history and results on examination, diagnosing left wrist sprain and likely triangular fibrocartilage complex (TFCC) degenerative changes. Appellant submitted a June 13, 2011 report from Dr. Christopher White, an orthopedic surgeon, who provided results on examination. Dr. White indicated that appellant was doing very well with respect to the elbow, with ongoing care for her hand and wrist.

In a letter dated July 11, 2011, OWCP advised appellant that to establish entitlement to a schedule award she needed to submit medical evidence with respect to a permanent impairment. By decision dated August 12, 2011, it determined that the evidence was insufficient to establish an employment-related permanent impairment under 5 U.S.C. § 8107.

On December 16, 2011 OWCP received an appeal request form indicating that appellant was requesting reconsideration. In an accompanying letter, appellant stated that she had been seen by a physician on October 29, 2011 and she believed the physician had mailed a copy of the report to OWCP.

By decision dated December 22, 2011, OWCP denied the application for reconsideration without merit review. It stated that there was no new medical evidence received.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2 OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by submitting a written application for reconsideration that sets forth arguments and contains evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”3 Section 10.608(b) states that any application for reconsideration that does not meet at least one of the

2
5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application”). 3 20 C.F.R. § 10.606(b)(2).

2 requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits of the claim.4

ANALYSIS

In the present case, OWCP issued an August 12, 2011 decision finding that appellant was not entitled to a schedule award. On December 16, 2011 appellant submitted an application for reconsideration.

In this case, appellant did not submit any additional medical evidence. Although she referred to the submission of additional evidence, the record does not indicate that any new medical evidence was submitted prior to December 22, 2011. Therefore, the issue remains whether appellant has met any of the requirements of 20 C.F.R. § 10.606(b)(2).5

Appellant’s December 13, 2011 letter does not show that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not previously considered by OWCP. She did not discuss a specific point of law or advance a legal argument. In addition, appellant did not submit any new and relevant evidence. The schedule award issue is a medical issue and, as previously noted, no new medical evidence was submitted prior to December 22, 2011. The Board finds that appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2).

On appeal, appellant indicated that her physician had delayed submitting new evidence, but OWCP now had received new medical evidence. The Board’s jurisdiction is limited to evidence that was before OWCP at the time of the decision on appeal.6 Appellant may pursue a claim for an increased schedule award based on the submission of relevant medical evidence, as noted above.

CONCLUSION

The Board finds that OWCP properly determined that appellant’s application for reconsideration was insufficient to warrant merit review of the claim.

4
Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).
5
See, e.g., E.L., Docket No. 11-1116 (issued December 19, 2011) (appellant submitted an application for reconsideration of a schedule award decision and submitted no new evidence or argument). 6 20 C.F.R. § 501.2(c)(1).

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 22, 2011 is affirmed.

Issued: October 17, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4