M.D. and U.S. Postal Service, Post Office, Detroit, MI (Board decision, June 25, 2013)

ECAB final decision. The Board affirmed OWCP’s refusal to reopen M.D.’s emotional condition claim for merit review. It did not decide the underlying claim on its merits. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

M.D., a postal carrier, claimed post-traumatic stress disorder after being robbed at gunpoint while delivering mail. OWCP accepted the incident but denied the medical claim for insufficient evidence of causation. In a later reconsideration request, she submitted a psychiatrist’s form that repeated his earlier diagnosis and work-related conclusion. The Board held that this was duplicative rather than relevant new evidence requiring a merits review. It affirmed OWCP’s refusal to reopen the claim.

Decision snapshot

• Authority: FECA reconsideration, 5 U.S.C. § 8128(a); merit-review threshold, 20 C.F.R. §§ 10.606 and 10.608.
• Outcome: December 6, 2012 refusal to reopen affirmed.
• Key point: A form repeating a previously considered medical conclusion did not meet the new-evidence requirement.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.D., Appellant
)
)
and ) Docket No. 13-698
) Issued: June 25, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Detroit, MI, Employer
)
__________ )

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

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On February 5, 2013 appellant, through her attorney, filed a timely appeal of a December 6, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because over 180 days elapsed from the most recent merit decision of January 5, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s 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 for reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

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

This case has previously been before the Board. On January 4, 2010 appellant, then a 31- year-old mail carrier, filed a traumatic injury claim alleging that she developed traumatic stress when she was robbed at gun point on December 31, 2009 while delivering mail.

By decision dated March 1, 2010, OWCP denied appellant’s emotional condition claim.
It found that Dr. Youg J. Kwon, a Board-certified psychiatrist, offered a speculative opinion as he stated that appellant’s symptoms “appear” to be related to her employment incident.

Appellant requested an oral hearing before an OWCP hearing representative on March 16, 2010. By decision dated July 20, 2010, the hearing representative denied appellant’s claim on the grounds that the record was devoid of sufficient medical evidence showing that there was an emotional condition due to the incident.

Appellant submitted a note dated September 2, 2010 from Dr. Pawan K. Garg, a Board- certified psychiatrist, who described the robbery incident on December 31, 2009 and stated that appellant had experienced intrusive recollection of events, flashbacks, severe dread and insomnia. Dr. Garg diagnosed post-traumatic stress disorder (PTSD) as a direct result of emotional trauma she received during her work duties. He stated that appellant was totally disabled.

In a letter dated September 8, 2010, appellant requested reconsideration of the July 20, 2010 decision. On October 20, 2010 OWCP found that a second opinion examination was necessary. On November 22, 2010 it referred appellant for an examination to Dr. Dan Guyer, a Board-certified psychiatrist. The examination was scheduled for December 8, 2010. In a letter dated November 27, 2010, appellant refused to participate in the scheduled second opinion examination. On December 9, 2010 the doctor’s office confirmed that appellant had not appeared for the December 8, 2010 scheduled examination.

By decision dated January 5, 2011, OWCP denied modification of its prior decisions.

Appellant requested reconsideration on June 22, 2011. She resubmitted the September 2, 2010 note of Dr. Garg with a May 3, 2011 addendum paragraph. Appellant also resubmitted factual information. Dr. Garg’s addendum reiterated that appellant’s PTSD condition was directly related to trauma sustained while performing her letter carrier duties on December 31, 2009. By decision dated September 6, 2011, OWCP declined to reopen appellant’s claim for further consideration of the merits. The Board affirmed OWCP’s September 6, 2011 nonmerit decision on April 25, 2012.2 The facts and circumstances of the case as set forth in the Board’s prior decision are adopted herein by reference.

Counsel requested reconsideration on October 12, 2012. Dr. Garg completed an Ohio State Workers’ Compensation form on September 10, 2012. He noted that he first examined appellant on September 2, 2010 and diagnosed PTSD. Dr. Garg reiterated that appellant had emotional problems since her work injury as she was robbed at gunpoint while performing her

2
Docket No. 12-79 (issued April 25, 2012).

2 letter carrier duties on December 31, 2009. He stated that appellant was traumatized with anxiety and by recurring intrusive recollections of the trauma. Dr. Garg opined that appellant’s injury was directly caused by her workers’ compensation injury.

By decision dated December 6, 2012, OWCP declined to reopen appellant’s claim for reconsideration of the merits finding that the medical report was duplicative of Dr. Garg’s September 2, 2010 and May 3, 2011 notes.

LEGAL PRECEDENT

Section 8128(a) of FECA provides that OWCP may review an award for or against payment of compensation at any time on its own motion or on application by the claimant.3 Section 10.606(b) of Title 20 of the Code of Federal Regulations provide that a claimant may obtain review of the merits of the claim by submitting in writing an application for reconsideration which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific point of law; or advances a relevant legal argument not previously considered by OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.4 Section 10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but does meet at least one of these three requirements, OWCP will deny the application for review without reopening the case for a 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. The Board has also held that the submission of evidence which does not address the particular issue involved does not constitute a basis for reopening a case.6

ANALYSIS

Appellant filed a claim for PTSD arising from an accepted employment incident of being robbed at gunpoint while delivering mail on December 31, 2009. OWCP denied her claim on the grounds that the medical evidence was not sufficient to establish a causal relationship between her diagnosed condition and the accepted employment incident. Appellant most recently requested reconsideration of the January 5, 2011 merit decision on October 12, 2012 and submitted medical evidence.

The Board does not have jurisdiction over the January 5, 2011 OWCP merit decision.
The issue presented is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3) requiring OWCP to reopen the case for review of the merits of her claim. In the October 12, 2012 request for reconsideration, appellant did not show that OWCP erroneously

3
5 U.S.C. §§ 8101-8193, 8128(a).
4
20 C.F.R. § 10.606.
5
Id. at § 10.608.
6
M.E., 58 ECAB 694 (2007).

3 applied or interpreted a specific point of law. She did not advance a new and relevant legal argument.

Appellant submitted a form report from Dr. Garg dated September 10, 2012. This report reiterated the diagnosed PTSD and described the employment incident that appellant was injured at work when robbed at gunpoint while performing her letter carrier duties on December 31, 2009. Dr. Garg listed that she was traumatized with anxiety and by recurring intrusive recollections of the trauma. He checked marked that appellant’s injury was directly caused by her workers’ compensation injury.

OWCP found that this report was repetitious. It noted that Dr. Garg did not provide a detailed discussion of findings upon clinical interview and results of any mental status testing with full discussion of findings and a well-reasoned opinion explaining how he concluded that the diagnosed condition of PTSD was causally related to the December 31, 2009 employment incident.

The Board finds that Dr. Garg’s September 10, 2012 form report is repetitious of his September 2, 2010 and May 3, 2011 notes.

The Board accordingly finds that appellant did not submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that as appellant failed to submit pertinent new and relevant evidence; therefore, OWCP properly denied further merit.

4
ORDER

IT IS HEREBY ORDERED THAT the December 6, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5