J.G. and Department of Veterans Affairs, Veterans Benefits Administration, Salt Lake City, UT (Board decision, January 7, 2013)

ECAB final decision on reconsideration. The Board affirmed OWCP's April 20, 2012 refusal to reopen J.G.'s traumatic injury claim for merit review. It did not review the underlying injury denial. 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.G., a Veterans Benefits Administration employee, asked OWCP to reconsider a denial of his traumatic injury claim. OWCP had found that the claimed work incident was not established. The new medical reports did not address whether the incident happened as alleged, and J.G. offered no qualifying legal argument. The Board affirmed OWCP's refusal to reopen the claim without reviewing the underlying merits.

Decision snapshot

• Authority: FECA reconsideration under 5 U.S.C. § 8128(a).
• Outcome: April 20, 2012 refusal to reopen affirmed.
• Key point: New medical reports did not address the disputed occurrence of the incident.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.G., Appellant
)
)
and ) Docket No. 12-1605
) Issued: January 7, 2013
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS BENEFITS ADMINISTRATION,
)
Salt Lake City, UT, Employer
)
__________ )

Appearances: Case Submitted on the Record
Tammy W. Schuyler, for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On July 23, 2012 appellant, through his representative, filed a timely appeal from an April 20, 2012 Office of Workers’ Compensation Programs’ (OWCP) decision denying his request for reconsideration of the merits of his claim. As more than 180 days elapsed from the date of the last merit decision of November 10, 2011 to 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 only has jurisdiction over the nonmerit decision.

ISSUE

The issue is whether OWCP properly refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).

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

On April 6, 2011 appellant, then a 57-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging injuries to his right arm and right leg while pushing a cart in the performance of duty on March 31, 2011.

By decision dated June 16, 2011, OWCP denied the claim on the basis that the evidence submitted was not sufficient to establish a firm medical diagnosis in connection with the claimed incident.

On June 27, 2011 appellant, through his representative, requested reconsideration and submitted a June 13, 2011 report by Dr. David A. McGuire, a Board-certified orthopedic surgeon, who obtained a history that appellant injured himself on March 31, 2011 while on the job when he was pushing a heavy file cart. He indicated that appellant had a mild stroke, which was diagnosed by a magnetic resonance imaging scan, after the March 31, 2011 event. Dr. McGuire diagnosed right knee medial and lateral meniscus tears and opined that the diagnoses were related directly to the March 31, 2011 employment incident.

In a June 14, 2011 report, Dr. Loren J. Jensen, a Board-certified orthopedic surgeon, diagnosed right shoulder impingement and opined that it was inextricably linked to appellant’s cerebral vascular accident (CVA) or stroke. Upon examination, he found a significant restriction of motion, in part due to impingement and part due to muscular weakness from the stroke. On June 23, 2011 Dr. Jensen indicated that appellant was three months from his injury and stroke. Upon examination, he found symmetric range of motion, with most of the stiffness being stroke related, and no obvious rotator cuff weakness, though some generalized stroke weakness.

By decision dated November 10, 2011, OWCP modified the June 16, 2011 decision to find that the evidence of record failed to establish that the March 31, 2011 incident occurred at the time, place and in the manner alleged.

On March 20, 2012 appellant, through his representative, requested reconsideration. He submitted medical reports from the Veterans Administration Health Center System dated February 15 through March 2, 2012.

By decision dated April 20, 2012, OWCP denied appellant’s request for reconsideration of the merits finding that he did not submit pertinent new and relevant evidence or show that OWCP erroneously applied or interpreted a point of law not previously considered. It noted that the evidence he submitted was irrelevant and dated nearly one year after the date of injury.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as a matter of right; it vests OWCP with discretionary authority to determine whether it will review

2 an award for or against compensation.2 OWCP, through regulations, has imposed limitations on the exercise of its discretionary authority under section 8128(a).3

To require OWCP to reopen a case for merit review under section 8128(a) of FECA, 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.4 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.5 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.6

The Board has held that the submission of evidence or argument which repeats or duplicates evidence or argument already in the case record7 and the submission of evidence or argument which does not address the particular issue involved does not constitute a basis for reopening a case.8

ANALYSIS

OWCP denied appellant’s claim of injury on March 31, 2011 finding that he did not establish the claimed traumatic incident. In support of his March 20, 2012 reconsideration request, appellant submitted medical reports from Veterans Administration Health Center System dated February 15 through March 2, 2012. The Board finds that submission of these documents did not require reopening appellant’s case for merit review as they failed to address the relevant issue of whether the March 31, 2011 incident occurred at the time, place and in the manner alleged. Therefore, they do not constitute relevant and pertinent new evidence and are not sufficient to require OWCP to reopen the claim for consideration of the merits.

Appellant did not submit any evidence to show that OWCP erroneously applied or interpreted a specific point of law or advanced a relevant legal argument not previously considered by OWCP, nor did he submit any relevant and pertinent new evidence not previously

2
5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the 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 See Annette Louise, 54 ECAB 783, 789-90 (2003).
4
20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).
5
20 C.F.R. § 10.607(a).
6
Id. at § 10.608(b).
7
See A.L., supra note 4. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).
8
Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3 considered. The Board finds that appellant did not meet any of the necessary requirements and is not entitled to further merit review.9

CONCLUSION

The Board finds that OWCP properly refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the April 20, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 7, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9
See L.H., 59 ECAB 253 (2007).

4