L.S. and Department of the Air Force, Randolph Air Force Base, TX (Board decision, March 21, 2013)

ECAB final decision. The Board affirmed OWCP's refusal to reopen L.S.'s claim for a merits review. 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 Air Force medical support assistant, claimed that an unsuitable workstation caused neck, shoulder, back and leg symptoms. OWCP accepted that the alleged work factor occurred but found no reasoned medical evidence connecting it to a diagnosed condition. L.S. later requested reconsideration by checking a box on a form without submitting new evidence or a relevant legal argument. The Board held that OWCP properly declined to reopen the claim and did not review the earlier merits decision.

Decision snapshot

• Authority: FECA reconsideration requirements, 5 U.S.C. § 8128(a); 20 C.F.R. § 10.606(b)(2).
• Outcome: September 24, 2012 OWCP nonmerit denial affirmed; claim not reopened.
• Key point: A reconsideration request must supply a qualifying legal argument or relevant new evidence to obtain merits review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.S., Appellant
)
)
and ) Docket No. 13-637
) Issued: March 21, 2013
DEPARTMENT OF THE AIR FORCE,
)
RANDOLPH AIR FORCE BASE, TX, Employer
)
__________ )

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

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 22, 2013 appellant filed a timely appeal from a September 24, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision, dated May 4, 2012, was issued more than 180 days before the filing of this appeal, the Board lacks jurisdiction to review the merits of this case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE

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

FACTUAL HISTORY

On December 22, 2010 appellant, then a 43-year-old medical support assistant, filed an occupational disease claim alleging that she sustained pain and tension in her shoulder, neck and

1
5 U.S.C. § 8101 et seq. back and numbness in her right leg causally related to factors of her federal employment. She attributed her condition to “working in an ergonomically incorrect environment.”

By decision dated March 25, 2011, OWCP denied appellant’s claim after finding that she did not factually establish that her workstation was not ergonomically correct. In a decision dated October 3, 2011, it denied modification of its March 25, 2011 decision. OWCP found that appellant had not submitted the required factual information. It further noted that she had not provided medical evidence containing a description of the identified work factors.

A request for reconsideration was filed on January 17, 2012.

In a decision dated May 4, 2012, OWCP modified its October 3, 2011 decision to find that appellant had factually established the occurrence of the work factor alleged to have caused her condition, but that she had not submitted rationalized medical evidence showing that she sustained a medical condition due to the identified work factor.

On August 14, 2012 appellant, by checkmark on a form, requested reconsideration. In a decision dated September 24, 2012, OWCP denied her request as she did not submit evidence or raise argument sufficient to warrant reopening the case for further merit review under 5 U.S.C.
§ 8128.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2 OWCP’s regulations provide that a claimant must: (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.3 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.4 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.5

The Board has held that the submission of evidence which repeats or duplicates evidence already in the case record does not constitute a basis for reopening a case.6 The Board also has held that the submission of evidence which does not address the particular issue involved does not constitute a basis for reopening a case.7 While the reopening of a case may be predicated 2 5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application.” 3 20 C.F.R. § 10.606(b)(2).
4
Id. at § 10.607(a).
5
Id. at § 10.608(b).
6
F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).
7
P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

2 solely on a legal premise not previously considered, such reopening is not required where the legal contention does not have a reasonable color of validity.8

ANALYSIS

In the last merit decision dated May 4, 2012, OWCP denied appellant’s occupational disease claim after finding that she had not submitted sufficient medical evidence to establish a condition causally related to the identified employment factor of working at an ergonomically- incorrect location. On August 24, 2012 she requested reconsideration.

As noted above, the Board does not have jurisdiction over the May 4, 2012 decision. The issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In her August 14, 2012 request for reconsideration, appellant did not show that OWCP erroneously applied or interpreted a specific point of law. She did not identify a specific point of law or show that it was erroneously applied or interpreted. Appellant did not advance a new and relevant legal argument. The underlying issue in this case is whether the medical evidence establishes that she sustained an occupational disease causally related to factors of her federal employment. That is a medical issue which must be addressed by relevant medical evidence.9 A claimant may be entitled to a merit review by submitting pertinent new and relevant evidence, but appellant did not submit any pertinent new and relevant medical evidence in this case.

The Board accordingly finds that appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific point of law, advance a relevant legal argument not previously considered by OWCP, or constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

On appeal appellant submitted new medical evidence. The Board has no jurisdiction to review new evidence on appeal.10 Appellant can submit this evidence to OWCP and request reconsideration under 5 U.S.C. § 8128.

CONCLUSION

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

8
Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).
9
See Bobbie F. Cowart, 55 ECAB 746 (2004).
10
See 20 C.F.R. § 501.2(c)(1).

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ORDER

IT IS HEREBY ORDERED THAT the September 24, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 21, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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