S.C. and U.S. Postal Service, Post Office, Detroit, MI (Board decision, January 15, 2014)

ECAB final decision on a reconsideration request. The Board affirmed OWCP’s refusal to reopen S.C.’s back injury claim because her request offered no supporting evidence or argument. The Board did not review the underlying injury claim on the merits. 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

S.C., a postal mail handler, reported low back pain after lifting mail at work. OWCP denied her injury claim and later declined to reopen it when she requested reconsideration by checking a box on an appeal form. The Board could review only that refusal, because the appeal was filed more than 180 days after OWCP’s last merits decision. It found that S.C. had supplied no evidence or argument with the reconsideration request to meet the regulatory requirements. The Board affirmed the refusal to reopen and did not decide the underlying injury claim.

Decision snapshot

• Authority: FECA reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606, 10.608.
• Outcome: Refusal to reopen affirmed; underlying claim not reviewed.
• Key point: A checked appeal form without supporting evidence or argument did not require a merits review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.C., Appellant
)
)
and ) Docket No. 13-2026
) Issued: January 15, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Detroit, MI, 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
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On September 3, 2013 appellant filed a timely appeal of an August 7, 2013 decision of the Office of Workers’ Compensation Programs denying further merit review.1 Because more than 180 days elapsed from the most recent merit decision of January 28, 2013 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of appellant’s case,.

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
On appeal appellant submitted new evidence not previously considered by OWCP. As OWCP did not review this evidence in reaching a final decision, the Board may not consider it for the first time on appeal. See 20 C.F.R. 501.2(c)(1). 2 5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On August 21, 2012 appellant, then a 38-year-old mail handler, filed a traumatic injury claim alleging that she injured her lower back while working on an understaffed machine on August 13, 2012. In reports dated August 15 and September 27, 2012, Dr. Gaurv Bhalia, an internist, diagnosed severe low back pain after heavy lifting at work.

In a form report dated September 18, 2012, Dr. Manmeet Singh, a Board-certified internist, diagnosed severe lumbosacral pain after lifting a heavy object at work.

By decision dated October 16, 2012, OWCP denied appellant’s claim. It accepted that she worked on August 13, 2012, but found that she did not submit sufficient medical opinion to establish a causal relationship between her low back condition and her employment incident.

Appellant requested reconsideration on November 6, 2012 and submitted additional medical evidence. In a report dated November 6, 2012, Dr. Melanie Hanna-Johnson, a Board- certified internist, stated that appellant reported severe low back pain on August 15, 2012. She opined that appellant sustained injury while at work lifting heavy tubs of mail.

By decision dated January 28, 2013, OWCP denied appellant’s claim for traumatic injury. It found that the medical evidence did establish a causal relationship between her low back condition and the accepted employment incident.

Appellant requested reconsideration of the January 28, 2013 decision on July 6, 2013 by a checkmark on an appeal form. She did not submit any additional evidence.

By decision dated August 7, 2013, OWCP declined to reopen appellant’s claim for consideration of the merits. It found that she failed to include any information or evidence in support of her July 6, 2013 request for reconsideration.

LEGAL PRECEDENT

FECA provides in section 8128(a) 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 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 3 5 U.S.C. §§ 8101-8193, 8128(a).
4
20 C.F.R. § 10.606.
5
Id. at § 10.608.

2
 ANALYSIS

By decisions dated October 16, 2012 and January 28, 2013, OWCP denied appellant’s claim for a low back condition on the grounds that she did not submit sufficient medical evidence. Appellant requested reconsideration on July 6, 2013 by a checkmark on an appeal form. The record does not reflect that she submitted any evidence in support of her July 6, 2013 request for reconsideration. As appellant did not comply with the requirements of section 10.606(b)(3), OWCP properly declined to reopen her claim for consideration of the merits.

CONCLUSION

The Board finds that OWCP properly declined to reopen appellant’s claim for consideration of the merits.

ORDER

IT IS HEREBY ORDERED THAT the August 7, 2013 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 15, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

3