T.E. and Department of the Army, Defense Language Institute, Foreign Language Center, Presidio of Monterey, CA (Board decision, May 8, 2013)

ECAB final decision. The Board affirmed OWCP’s November 27, 2012 decision denying reconsideration without reopening T.E.’s occupational disease claim. A party may petition the Board for reconsideration within 30 days of issuance unless the order 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

T.E. had claimed that lifting computer printers at work aggravated a preexisting back condition. The Board had previously affirmed denial of that claim because the medical evidence did not establish the connection. Her attorney then requested reconsideration and said new medical evidence was forthcoming, but OWCP received none. The request also offered no new relevant legal argument and identified no error in OWCP’s application of law. The Board held that the request met none of the requirements for reopening the claim and affirmed OWCP’s refusal to conduct another merit review. It did not revisit whether the work caused her condition.

Decision snapshot

• Authority: Reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606(b)(2), 10.608(b).
• Outcome: November 27, 2012 denial of reconsideration affirmed; no further merit review.
• Key point: A promise to submit evidence, without the evidence or a qualifying legal argument, did not warrant reopening.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.E., Appellant
)
)
and ) Docket No. 13-461
) Issued: May 8, 2013
DEPARTMENT OF THE ARMY, DEFENSE
)
LANGUAGE INSTITUTE, FOREIGN
)
LANGUAGE CENTER,
)
Presidio of Monterey, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On December 28, 2012 appellant, through her attorney, filed a timely appeal of a November 27, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for reconsideration without further merit review. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision. Because more than 180 days elapsed from November 18, 2010, the date of the most recent merit decision of OWCP, to the filing of this appeal, the Board lacks jurisdiction to review the merits of the case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).

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

This case has previously been before the Board. In a November 22, 2011 decision, the Board affirmed OWCP’s November 18, 2010 denial of appellant’s occupational disease claim on the basis that the medical evidence did not establish that the accepted work activity, namely lifting computer printers, aggravated a preexisting back condition.2 Following this decision, counsel filed a formal written request for reconsideration to OWCP on November 21, 2012. He specified that new medical evidence was forthcoming. No such evidence was submitted.

By decision dated November 27, 2012, OWCP denied appellant’s request on the grounds that it did not receive new and relevant evidence warranting further merit review.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3 OWCP’s regulations provide that the evidence or argument submitted by a claimant must either: (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 Where the request for reconsideration fails to meet at least one of these standards, OWCP will deny the application for reconsideration without reopening the case for a review on the merits.5

ANALYSIS

By merit decision dated November 22, 2011, the Board affirmed denial of appellant’s occupational disease claim, finding the medical evidence insufficient to establish that her federal employment aggravated a preexisting back condition. On November 21, 2012 counsel requested reconsideration and indicated that he would present new medical evidence. However, OWCP did not receive such evidence. Moreover, counsel did not assert a relevant new legal contention or show that OWCP erroneously applied or interpreted a specific point of law. Because appellant failed to meet one of the standards enumerated under section 8128(a) of FECA, she was not entitled to further merit review of her claim.

Counsel contends on appeal that the November 27, 2012 decision was contrary to fact and law. As noted, he did not provide evidence or argument satisfying any of the three regulatory criteria for reopening the claim for a merit review.

2
Docket No. 11-990 (issued November 22, 2011). The findings contained in the Board’s prior decision are incorporated by reference.
3
5 U.S.C. § 8128(a).
4
E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).
5
L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

2
CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 27, 2012 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: May 8, 2013
Washington, DC

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

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

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

3