L.S. and Department of Homeland Security, Immigration & Customs Enforcement, Detroit, MI (Board decision, April 9, 2013)

ECAB final decision. The Board affirmed OWCP’s June 11, 2012 refusal to reopen L.S.’s back injury claim. Her reconsideration request repeated earlier work-duty allegations and the documents she said she was sending were not in the record. 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

L.S., an immigration agency lobby assistant, claimed back and leg injuries from lifting files and other office tasks. OWCP denied the claim after finding she had not established the claimed work activities, and she later requested reconsideration. L.S. repeated her account and said she would send emails and medical reports, but OWCP had not received those documents before deciding the request. The Board found no new relevant evidence or unconsidered legal argument. It affirmed the nonmerit refusal to reopen without reviewing the underlying injury claim.

Decision snapshot

• Authority: FECA reconsideration, 5 U.S.C. § 8128(a); 20 C.F.R. § 10.606(b).
• Outcome: June 11, 2012 refusal to reopen the claim affirmed.
• Key point: Repeated allegations and documents not received before the decision do not satisfy the reconsideration standard.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.S., Appellant
)
)
and ) Docket No. 13-343
) Issued: April 9, 2013
DEPARTMENT OF HOMELAND SECURITY,
)
IMMIGRATION & CUSTOMS
)
ENFORCEMENT, Detroit, MI, Employer
)
__________ )

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

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 27, 2012 appellant filed a timely appeal from a June 11, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 Because more than 180 days elapsed from the last merit decision of March 15, 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 501.3.2

ISSUE

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

1
The Board notes that appellant requested oral argument before the Board. By letter dated December 4, 2012, the Clerk of the Board advised appellant that oral arguments were only held in Washington DC. Appellant was asked to confirm that she would attend oral argument in Washington DC. She did not respond to this letter. 2 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

On May 3, 2010 appellant, then a 44-year-old lobby assistant, filed a claim alleging that she sustained injuries to her back and leg due to employment activities between June 30, 2009 and April 27, 2010.3 She reportedly felt pain in her back and leg on April 27, 2010 when she lifted a file that was three to four inches thick. Appellant experienced pain from walking up and down, getting in and out of chairs, and stretching and bending all day while retrieving, lifting and placing filing folders in cabinets.

The employing establishment controverted appellant’s claim, stating that she was limited to answering telephones and assisting walk-ins. It denied that she was required to file and insisted that whenever she handled a file, there were carts and other assistance available.

By decision dated September 27, 2010, OWCP denied appellant’s claim on the grounds that she had failed to establish the fact of injury. Appellant failed to provide sufficient evidence to support her assertions that she engaged in the activities alleged to have caused her claimed injury.

On October 25, 2010 appellant requested an oral hearing.

In a statement dated November 2, 2010, appellant asserted that the employing establishment deliberately misrepresented her assigned duties, stating that she had been required to file, to process bond fees and to make deposits. She was repeatedly lifting and performing functions on the copy machine. Appellant submitted copies of emails related to her job assignments.

In a March 15, 2011 decision, an OWCP hearing representative affirmed the September 27, 2010 decision. He found that appellant failed to establish that her position was substantially more than sedentary or of a nature to be physically taxing to the point of causing a back injury.

On March 14, 2012 appellant requested reconsideration.

In an undated statement, appellant indicated that she had filed two additional claims for back injuries, which were accepted for back strain. She had been assigned a position as a lobby assistant following her June 30, 2009 injury. Appellant’s duties were not limited to answering telephones and assisting walk-ins, but rather included lifting three to four-inch files, as well as the duties previously described.

In a letter dated May 15, 2012, appellant stated that she was submitting copies of emails and doctors’ reports in support of her reconsideration request. The record does not include the referenced documents.

3
Appellant initially filed a notice of recurrence of disability relating to her March 1, 2005 claim (File No. xxxxxx839), which was accepted for back strain. OWCP converted her claim to an occupational disease claim because she alleged new injuries. Appellant has filed numerous other claims, including a June 30, 2009 traumatic injury claim (File No. xxxxxx628), which was also accepted for back strain.

2
By decision dated June 11, 2012, OWCP denied appellant’s request for reconsideration, finding that the evidence and argument submitted were insufficient to warrant merit review.4

On appeal, appellant contends that OWCP issued its decision without medical documentation, which was unavailable at the time. She reiterates that her back condition was exacerbated by the requirements of her light-duty job.

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.5 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.6

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration

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. Consequently, she 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 obtain a merit review by submitting relevant and pertinent evidence not previously considered.7 Appellant, however, did not submit the required new and relevant evidence. Although she indicated that she would be submitting copies of emails and physicians’ reports, the record did not include any such evidence supporting her request for reconsideration. Appellant submitted only a May 15, 2012 letter and an undated statement, in which she repeated her assertions that her position as a lobby assistant required her to lift three to four-inch files, as well as the walking, stretching and bending duties previously described. As these contentions were previously made and considered by OWCP, they are cumulative and duplicative in nature.8 The Board finds that appellant’s letter and statement do not constitute relevant and pertinent new evidence not previously considered and, therefore, do not constitute a basis for reopening the case for a merit review.

4
The Board notes that appellant submitted additional evidence after OWCP rendered its June 11, 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). Appellant may submit this evidence to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2). 5 20 C.F.R. § 10.606(b). See generally 5 U.S.C. § 8128(a).
6
Howard A. Williams, 45 ECAB 853 (1994).
7
See supra note 4 and accompanying text.
8
Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

3
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. The Board, therefore, finds that 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 further review of the merits under 5 U.S.C. § 8128(a).

ORDER

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

Issued: April 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4