D.M. and U.S. Postal Service, Post Office, Birmingham, AL (Board decision, April 4, 2013)

ECAB final decision. The Board affirmed OWCP’s October 11, 2012 refusal to reopen D.M.’s occupational disease claim for a merits review. The submitted medical records repeated evidence OWCP had already reviewed. The Board did not decide whether the claimed conditions were caused by work. 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 unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.M., a postal mail handler, had claimed neck and shoulder conditions from repetitive work, and OWCP denied that claim. He later requested reconsideration and submitted treatment notes and a surgical report concerning his shoulder and neck conditions. The Board found those records duplicated medical evidence already before OWCP. D.M. also identified a physician’s report as new, but the Board found OWCP had previously reviewed it. It affirmed OWCP’s refusal to reopen the claim because he presented no new pertinent evidence or new legal argument. The Board had no jurisdiction in this appeal to reconsider the earlier merits denial.

Decision snapshot

• Authority: FECA reconsideration, 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b).
• Outcome: October 11, 2012 denial of reconsideration affirmed; the underlying claim was not reviewed on its merits.
• Key point: Medical records already considered by OWCP did not require another merits review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.M., Appellant
)
)
and ) Docket No. 13-238
) Issued: April 4, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Birmingham, AL, 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
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On October 30, 2012 appellant filed a timely appeal from an October 11, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s May 22, 2012 claim for reconsideration under 5 U.S.C. § 8128(a).

1
The last merit decision in this case was an OWCP December 23, 2010 decision, which denied his occupational disease claim. For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. 20 C.F.R. § 501.3(d)(2). For final adverse decisions of OWCP issued on or after November 19, 2008, a claimant must file an appeal within 180 days of the decision. 20 C.F.R. § 501.3(e). Because more than 180 days elapsed from the most recent merit decision of December 23, 2010 to the filing of this appeal on October 30, 2012, the Board lacks jurisdiction to review the merits of this case. 2 5 U.S.C. § 8101 et seq.
FACTUAL HISTORY

This case was previously before the Board.3 By decision dated October 19, 2011, the Board affirmed a December 23, 2010 OWCP decision, which denied as modified to find insufficient medical evidence to establish that appellant sustained neck or bilateral shoulder conditions as a result of his employment activities. It also affirmed a January 27, 2011 nonmerit decision which denied appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a). By order dated April 25, 2012, the Board denied appellant’s petition for reconsideration of its October 19, 2011 decision.4 The facts of the case, as set forth in the prior decision, is hereby incorporated by reference.

On May 22 and June 13, 2012 appellant submitted requests for reconsideration. He notes that he took medicine for his shoulder conditions and that any repetitive motion to his shoulder worsened his condition. Appellant noted that he was submitting a report from Dr. William Garth, Jr., a Board-certified orthopedic surgeon, who diagnosed thoracic outlet syndrome and indicated that one of the causes was repetitive activity.

Appellant submitted the handwritten notes of Dr. Garth, dated July 17, 2006 to October 13, 2010. He noted that appellant was treated for right and left shoulder pain and thoracic outlet syndrome. The record reflects that Dr. Garth was the physician who performed appellant’s August 1, 2007 right shoulder surgery for shoulder impingement syndrome with a partial tear of the supraspinatus tendon. Appellant underwent an arthroscopically-aided acromioplasty with distal clavicle resection and repair of the supraspinatus portion of the rotator cuff.

By decision dated October 11, 2012, OWCP denied appellant’s request for reconsideration finding that the evidence submitted was not sufficient to warrant further merit review under 5 U.S.C. § 8128(a).

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether to review an award for or against compensation.5 OWCP’s regulations provide that OWCP may review an award for or against compensation at any time on its own motion or upon application. The employee shall exercise his right through a request to the district Office.6

3
Docket No. 11-790 (issued October 19, 2011). On November 5, 2010 appellant, then a 57-year-old mail handler, filed a claim alleging that on October 19, 2010 he sustained neck and bilateral shoulder conditions as a result of repetitively prepping mail. In a decision dated December 23, 2010, OWCP denied his claim finding insufficient medical evidence to establish that he sustained any diagnosed bilateral shoulder or neck condition as a result of his employment. By decision dated January 27, 2011, OWCP denied appellant’s request for reconsideration finding that no evidence was submitted sufficient to warrant further merit review under 5 U.S.C.
§ 8128.
4
Docket No. 11-790 (issued April 25, 2012).
5
5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
6
20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 (issued March 16, 2009).

2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.7

A request for reconsideration must also be submitted within one year of the date of OWCP’s decision for which review is sought.8 A timely request for reconsideration may be granted if OWCP determines that the employee has presented evidence or provided an argument that meets at least one of the requirements for reconsideration. If OWCP chooses to grant reconsideration, it reopens and reviews the case on its merits.9 If the request is timely but fails to meet at least one of the requirements for reconsideration, OWCP will deny the request for reconsideration without reopening the case for review on the merits.10

ANALYSIS

The Board’s prior decision of October 19, 2011 reviewed the December 23, 2010 merit decision. In this appeal, the only decision the Board may review is the October 11, 2012 nonmerit decision denying appellant’s request for reconsideration. The issue is whether appellant’s request met at least one of the three requirements for obtaining a merit review. The Board finds that appellant’s May 22 and June 13, 2012 requests for reconsideration did not satisfy any of the requirements of 20 C.F.R. § 10.606(b).

Appellant submitted various handwritten notes and a 2007 surgical report by Dr. Garth pertaining to treatment for bilateral shoulder impingement and thoracic outlet syndrome. The Board finds that the reports are cumulative and duplicative of the medical evidence previously submitted regarding treatment for appellant’s bilateral shoulder impingement and neck pain. Evidence that repeats or duplicates evidence already of record has no evidentiary value and does not constitute a basis for reopening a case.11 These reports, therefore, are insufficient to warrant further merit review.

The Board finds that appellant has not shown that OWCP erroneously applied or interpreted a specific point of law; he has not advanced a relevant legal argument not previously considered by OWCP; and he has not submitted relevant and pertinent new evidence not previously considered by OWCP. OWCP did not abuse its discretion in refusing to reopen his claim for a review of the merits.

On appeal, appellant stated that in May 2012 he submitted a new October 2008 report by Dr. Garth with a diagnosis of thoracic outlet syndrome or neck pain. A review of the record demonstrates, however, that this report was previously submitted and reviewed by OWCP. 7 Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008). 8 Id. at § 10.607(a).
9
Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
10
Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
11
D.K., 59 ECAB 141 (2007); Howard A. Williams, 45 ECAB 853 (1994).

3
Appellant’s claim was denied as failed to submit sufficient medical evidence to establish his shoulder conditions were related to his work as a mail handler. He did not submit any evidence or advance any legal arguments along with his request for reconsideration that satisfied the regulatory criteria necessary to reopen a case for merit review.

The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that OWCP did not abuse its discretion by denying appellant’s May 22 and June 13, 2012 requests for reconsideration pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the October 11, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4