C.B. and U.S. Department of Commerce, Patent and Trademark Office, Arlington, VA (Board decision, February 20, 2013)

ECAB final decision on appeal from OWCP's reconsideration refusal. The Board affirmed OWCP's May 10, 2012 decision declining to reopen C.B.'s schedule award claim for merit review. It did not decide the degree of permanent impairment from her accepted wrist condition. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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

C.B., a Patent and Trademark Office employee, sought a schedule award for permanent impairment from accepted tendinitis in both wrists. After OWCP denied the award, she asked it to reconsider and submitted a nerve study. The Board found that the new study did not address whether the accepted wrist condition caused permanent arm impairment and gave no impairment rating under the applicable medical guides. It affirmed OWCP's refusal to reopen the claim without deciding the underlying award request anew.

Decision snapshot

• Authority: Reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606(b)(2) and 10.608(b).
• Outcome: May 10, 2012 refusal to reopen the schedule award claim affirmed.
• Key point: A diagnostic study that did not rate impairment from the accepted wrist condition did not require merit review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.B., Appellant
)
) Docket No. 13-06
and ) Issued: February 20, 2013
)
U.S. DEPARTMENT OF COMMERCE,
)
PATENT AND TRADEMARK OFFICE,
)
Arlington, VA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On October 1, 2012 appellant filed a timely appeal from the May 10, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for reconsideration. The most recent merit decision was an April 20, 2011 OWCP decision denying her schedule award claim.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this claim.3

1
The Board notes that appellant submitted additional evidence after OWCP issued its May 10, 2012 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 2 5 U.S.C. § 8101 et seq.
3
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) (2008).
ISSUE

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

FACTUAL HISTORY

This case was previously before the Board. In a September 14, 2009 decision, the Board affirmed OWCP’s January 15 and October 22, 2008 decisions denying appellant’s request for a schedule award for permanent impairment to her upper extremities due to her accepted condition of tendinitis of both wrists. The Board found that the medical evidence of record did not establish that appellant’s accepted condition caused any permanent impairment to a scheduled member of the body. The facts and law contained in the Board’s decision are incorporated herein by reference.4

On September 14, 2010 appellant, through her representative, requested reconsideration.
She submitted a September 7, 2010 report from Dr. Abraham Asmamaw, a Board-certified physiatrist, who diagnosed bilateral severe de Quervain’s disease, extensor wrist tendinitis and carpal tunnel syndrome, secondary to overuse at work. Examination findings included a severe positive Finklestein’s test. Wrists showed swelling and pain. Dr. Asmamaw opined that appellant continued to experience residuals from her accepted injury.

By decision dated April 21, 2011, OWCP denied modification of its prior decision denying appellant’s claim for a schedule award. The claims examiner noted that the medical evidence did not provide any rating of permanent impairment pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

On March 20, 2012 appellant again requested reconsideration. She submitted a March 20, 2012 report of a nerve conduction study/EMG from Dr. Navid Mostofi, a Board- certified neurologist, who stated that the study was mildly abnormal due to the presence of chronic denervation changes in bilateral C6-7 innervated muscles, suggestive of a mild chronic C6-7 radiculopathy. There was no evidence of carpal tunnel syndrome or ulnar neuropathy. Clinical correlation was recommended.

By decision dated May 10, 2012, OWCP denied appellant’s reconsideration request on the grounds that the evidence submitted was insufficient to warrant merit review.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5 the evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied

4
Docket No. 09-447 (issued September 14, 2009).
5
5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

2 or interpreted a specific point of law; (2) advance a relevant legal argument not previously considered; or (3) constitute relevant and pertinent new evidence not previously considered by the OWCP.6 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.7 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.8 The Board has held that the submission of evidence which does not address the particular issue involved does not constitute a basis for reopening a case.9

ANALYSIS

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

Appellant’s March 20, 2012 request for reconsideration did not allege or demonstrate that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not advance a relevant legal argument not previously considered. Consequently, appellant is not entitled to a review of the merits of her claim based on the first and second above-noted requirements under section 10.606(b)(2). A claimant may be entitled to a merit review by submitting new and relevant evidence; however, appellant did not submit new and relevant medical evidence in this case.

Appellant’s claim was denied on the grounds that the medical evidence of record did not establish that her accepted wrist condition caused any permanent impairment to the body or a rating of permanent impairment pursuant to the sixth edition of the A.M.A., Guides. In support of her reconsideration claim, appellant submitted a March 20, 2012 diagnostic study from Dr. Mostofi. The report did not provide any opinion as to whether appellant sustained any permanent impairment of her arms due to her accepted injury. It did not provide any impairment rating under the A.M.A., Guides. Therefore the report is not relevant to the issue in this case and does not constitute a basis for reopening the case for merit review.10

The Board finds that OWCP properly determined that appellant was not entitled to a review of the merits pursuant to any of the three requirements under section 10.606(b)(2) and properly denied her March 20, 2012 request for reconsideration.11

6
20 C.F.R. § 10.606(b)(2).
7
Id. at § 10.607(a).
8
Id. at § 10.608(b).
9
Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
10
Robert P. Mitchell, 52 ECAB 116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
11
Appellant, however, retains the right to file a claim for a schedule award based on new medical evidence, indicating that the progression of an employment-related condition, without new exposure to employment factors, has resulted in a greater permanent impairment than previously calculated. Linda T. Brown, 51 ECAB 115 (1999).

3
CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the May 10, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 20, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4