M.E. and Department of Veterans Affairs, Veterans Administration Medical Center, Augusta, GA (Board decision, February 6, 2013)

ECAB final decision on a reconsideration request. The Board affirmed OWCP’s August 9, 2012 refusal to reopen M.E.’s case. It did not decide the underlying wage-loss 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

M.E., a medical center nurse, had an accepted shoulder and neck injury after a patient grabbed her. OWCP later denied compensation for claimed periods of wage loss. In asking OWCP to reconsider, she submitted medical reports that had already been reviewed and material that did not address the issue. The Board held that the request presented no qualifying new evidence or legal argument. It affirmed OWCP’s refusal to reopen and did not reach the merits of the wage-loss claim.

Decision snapshot

• Authority: Reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b).
• Outcome: August 9, 2012 refusal to reopen affirmed; underlying wage loss not reviewed.
• Key point: Duplicative and irrelevant evidence did not warrant a new merits review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.E., Appellant
)
)
and ) Docket No. 12-1870
) Issued: February 6, 2013
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Augusta, GA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 September 4, 2012 appellant filed a timely appeal from an August 9, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days elapsed from the last merit decision of December 6, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1

ISSUE

The issue is whether OWCP properly refused to reopen appellant’s case for reconsideration under 5 U.S.C. § 8128.

1
For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).
FACTUAL HISTORY

Appellant, then a 61-year-old nurse, injured her left arm and left shoulder on January 24, 2010 when she was grabbed by a patient. She filed a claim for benefits, which OWCP accepted for left shoulder and neck strains. OWCP paid compensation for wage loss for intermittent periods of work-related disability.

On May 14, 2010 appellant filed a Form CA-7, claiming compensation for wage loss from May 2 to 13, 2010.

In a report dated June 15, 2010, Dr. J. Allan Goodrich, Board-certified in orthopedic surgery, stated that appellant had not returned to work since the January 24, 2010 work injury. He advised that she underwent a magnetic resonance imaging (MRI) scan which showed spondylitic changes but no acute disc herniation.2 Dr. Goodrich stated that appellant was not able to specify the disc level causing her pain. He would schedule her for a computerized axial tomography (CAT) scan/myelogram of her cervical spine but did not think she would require any kind of surgical intervention. A May 14, 2010 work capacity evaluation by Dr. Goodrich advised that appellant was capable of performing her usual job.

By decision dated July 9, 2010, OWCP denied compensation for wage loss for the period May 2 to 13, 2010.

In a report dated July 12, 2010, Dr. Goodrich stated that the results of the cervical CAT scan/myelogram showed multilevel spondylosis of the neck at C3-6. He opined that the C5-6 spondylosis was associated with the cutoff of the nerve root and was probably the origin of her pain. Dr. Goodrich was unable to definitively state this, however, based on her clinical examination. He discussed the risks and benefits of cervical disc fusion. Dr. Goodrich opined that the spondylosis was not a new condition stemming from her January 2010 work injury, although it could have been exacerbated by it. He stated that the results of her electromyelogram and nerve conduction studies were not conclusive since there was nonspecific radiculopathy, incomplete findings of carpal tunnel syndrome, no Tinel’s sign at the wrist and no positive Phalen’s test.

On December 3, 2010 appellant filed a Form CA-7, claiming compensation for wage loss from May 13 to September 10, 2010.

By decision dated January 31, 2011, OWCP denied compensation for wage loss from May 13 to September 10, 2010.

By letter dated February 7, 2011, appellant’s attorney requested an oral hearing, which was held on May 6, 2011.

On March 21, 2011 appellant filed a Form CA-7, claiming compensation for wage loss from May 4, 2010 to March 24, 2011.

2
Appellant underwent a cervical MRI scan on March 5, 2010 that reported early minimal degenerative disc changes with disc desiccation at C5-6, left lateral spondylosis at C3-4 and a small disc protrusion at C4-5 and C5-6

2
By decision dated May 10, 2011, OWCP denied compensation for wage loss from May 4, 2010 to March 24, 2011.

By letter dated May 17, 2011, counsel requested an oral hearing, contesting OWCP’s decision of May 10, 2011. A hearing was held on September 14, 2011.

By decision dated July 25, 2011, OWCP’s hearing representative affirmed the January 31, 2011 decision, denying compensation from May 13 to September 10, 2010.

In a September 28, 2010 report, received by OWCP on November 7, 2011, Dr. Goodrich advised that appellant intended to undergo surgery to ameliorate her cervical condition. He reiterated that she had multilevel spondylosis, primarily at the C5-6 level, which was consistent with her recurrent symptomatology, in addition to left C5 radiculopathy. Dr. Goodrich stated that appellant continued to have neck, left shoulder and left arm pain which had not resolved with conservative care.

In treatment notes dated October 12 and December 23, 2010, received by OWCP on November 7, 2011, Dr. Goodrich noted that appellant underwent surgery to ameliorate her cervical condition. In a December 23, 2011 report, he stated that she was doing well after undergoing an anterior cervical discectomy and interbody fusion at C5-6, with good strength, intact sensation and good cervical range of motion.

By decision dated December 6, 2011, OWCP’s hearing representative affirmed the March 21, 2011 decision, denying compensation from May 4, 2010 to March 24, 2011.

By letter dated December 22, 2011, received by OWCP on July 28, 2012, counsel requested reconsideration of the December 6, 2011 decision. Appellant resubmitted Dr. Goodrich’s reports dated June 15 to December 23, 2010. She did not submit any new medical evidence with her request.

By decision dated August 9, 2012, OWCP denied appellant’s application for review on the grounds that it neither raised substantive legal questions nor included new and relevant evidence sufficient to require OWCP to review its prior decision.

LEGAL PRECEDENT

Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her claim by showing that OWCP erroneously applied or interpreted a specific point of law; by advancing a relevant legal argument not previously considered by OWCP; or by submitting relevant and pertinent evidence not previously considered by OWCP.3 Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not constitute a basis for reopening a case.4

3
20 C.F.R. § 10.606(b). See generally 5 U.S.C. § 8128(a).
4
Howard A. Williams, 45 ECAB 853 (1994).

3
ANALYSIS

In the present case, appellant has not shown that OWCP erroneously applied or interpreted a specific point of law; nor has she advanced a relevant legal argument not previously considered by OWCP. The evidence that she submitted is not pertinent to the issue on appeal. The Board has held that the submission of evidence which does not address the particular issue involved in the case does not constitute a basis for reopening the claim.5 Appellant submitted several 2010 reports from Dr. Goodrich which OWCP previously reviewed. This evidence is therefore cumulative and duplicative.6 Appellant’s reconsideration request failed to show that OWCP erroneously applied or interpreted a point of law nor did it advance a point of law or fact not previously considered by OWCP. OWCP did not abuse its discretion in refusing to reopen her claim for a review on the merits.

CONCLUSION

The Board finds that OWCP properly refused to reopen appellant’s case for reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the August 9, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 6, 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

5
See David J. McDonald, 50 ECAB 185 (1998).
6
See Patricia G. Aiken, 57 ECAB 441 (2006).

4