S.M. and Department of Justice, Bureau of Prisons, Federal Medical Center, Lexington, KY (Board decision, September 15, 2014)

ECAB final decision on appeal from OWCP’s reconsideration denial. The Board affirmed OWCP’s October 4, 2013 refusal to reopen S.M.’s injury claim. It did not decide the injury merits in this appeal. 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).

Plain-English summary

S.M., a corrections officer, reported arm and back symptoms after a prisoner collapsed into his arms. OWCP denied the injury claim because he provided no medical evidence establishing a resulting injury. He then asked OWCP to reconsider without supplying new evidence or a legal argument. The Board held that his request did not meet the requirements for reopening the case and affirmed OWCP’s refusal. It lacked jurisdiction to review the injury merits in this appeal.

Decision snapshot

• Authority: OWCP reconsideration under 5 U.S.C. § 8128(a).
• Outcome: October 4, 2013 refusal to reopen affirmed; injury merits not reviewed.
• Key point: A reconsideration letter without new relevant evidence or a legal argument did not require merit review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.M., Appellant
)
)
and ) Docket No. 14-991
)
Issued: September 15, 2014
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, FEDERAL MEDICAL CENTER,
)
Lexington, KY, 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 March 25, 2014 appellant filed a timely appeal from an October 4, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision of record is dated June 18, 2013. There is no merit decision within 180 days of March 25, 2014, the date appellant filed his appeal with the Board. Therefore, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.2

ISSUE

   The issue           is   whether    OWCP       properly        denied    reconsideration     pursuant     to

5 U.S.C.§ 8128(a).
1
5 U.S.C. § 8101 et seq.
2
Appellant submitted additional evidence accompanying his request for appeal. However, the Board may not consider new evidence for the first time on appeal that was not before OWCP at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). On appeal, appellant asserts that workplace security videotapes would verify that he was injured in the performance of duty. He contends that, following the injury, he promptly reported to a hospital emergency room as ordered.

FACTUAL HISTORY

On May 6, 2013 appellant, then a 27-year-old corrections officer, filed a traumatic injury claim (Form CA-1) claiming that earlier that day, he sustained right upper extremity and back pain when a prisoner who he was escorting collapsed into his arms.

In a May 13, 2013 letter, OWCP advised appellant of the additional evidence needed to establish his claim, including factual information corroborating the claimed incident and a medical report supporting that the incident caused an injury. Appellant was afforded 30 days to submit such evidence. However, no additional evidence was received by OWCP prior to June 18, 2013.

By decision dated June 18, 2013, OWCP denied appellant’s claim on the grounds that fact of injury was not established. It accepted that the May 13, 2013 incident occurred at the time, place and in the manner alleged. OWCP further found, however, that as appellant did not submit any medical evidence supporting causal relationship, he did not establish that he sustained an injury as claimed.

In a September 23, 2013 letter, appellant requested reconsideration. He did not submit additional evidence or argument.

By decision dated October 4, 2013, OWCP denied reconsideration as appellant’s September 23, 2013 reconsideration did not raise substantive legal questions or include new and relevant evidence. It was therefore insufficient to warrant a merit review.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3 section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides 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.4 Section 10.608(b) provides that when an application for review of the merits of a claim does not meet at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review on the merits.5

3
5 U.S.C. § 8128(a).
4
20 C.F.R. § 10.606(b)(2).
5
Id. at § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

2
 In support of a request for reconsideration, a claimant is not required to submit all evidence which may be necessary to discharge his or her burden of proof.6 The claimant need only submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an OWCP decision denying a merit review, the function of the Board is to determine whether OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in support thereof.8

ANALYSIS

Appellant claimed that he sustained right upper extremity and back injuries when he caught a collapsing prisoner. OWCP denied the claim, by decision dated June 18, 2013, as appellant had submitted no medical evidence establishing an injury. Appellant requested reconsideration by September 23, 2013 letter, but did not present a legal argument or submit additional evidence. OWCP denied reconsideration by October 4, 2013 decision, finding that appellant’s letter did not warrant a merit review as it did not raise substantive legal questions or include new, relevant evidence.

A claimant may be entitled to a merit review by submitting new and relevant evidence; however, appellant did not do so in this case. The only document submitted pursuant to his September 23, 2013 letter requesting reconsideration was the letter itself, which did not present any legal argument. Appellant did not provide additional evidence.

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 evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

On appeal, appellant asserts that security videotapes would verify that he was injured in the performance of duty. He contends that he promptly reported to a hospital emergency room as ordered. These arguments pertain to the merits of the claim. As explained above, the Board does not have jurisdiction over the merits of the case on the present appeal.

CONCLUSION

The Board finds that OWCP properly denied reconsideration.

6
Helen E. Tschantz, 39 ECAB 1382 (1988).
7
See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).
8
Annette Louise, 54 ECAB 783 (2003).

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 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 4, 2013 is affirmed.

Issued: September 15, 2014
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