H.E. and Department of Commerce, National Oceanic and Atmospheric Administration, Seattle, WA (Board decision, September 2, 2016)

ECAB final decision on reconsideration review. The Board affirmed OWCP’s refusal to reopen the claim; the underlying compensation merits were not reviewed. 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 of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

H.E., a National Oceanic and Atmospheric Administration employee, sought reconsideration of a compensation decision involving his pay rate. He submitted an employer letter and a supervisor’s statement that OWCP had already considered. The Board found that the repeated evidence did not require OWCP to reopen the claim for a merits review. It affirmed OWCP’s nonmerit denial.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a), 20 C.F.R. § 10.606(b)(3).
• Outcome: September 15, 2014 nonmerit reconsideration denial affirmed; pay-rate merits not reopened.
• Key point: Previously considered evidence did not satisfy the requirements for merit reconsideration.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.E., Appellant
)
)
and ) Docket No. 15-0963
) Issued: September 2, 2016
DEPARTMENT OF COMMERCE,
)
NATIONAL OCEANIC ATMOSPHERIC
)
ADMINISTRATION, Seattle, WA, Employer
)
__________ )

Appearances: Case Submitted on the Record
John Eiler Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

JURISDICTION

On March 16, 2015 appellant, through counsel, filed a timely appeal from a September 15, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days elapsed from OWCP’s last merit decision on July 11, 2012 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). The Board denied the request in an October 9, 2015 order as his arguments could be adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0963 (issued October 9, 2015). 3 5 U.S.C. § 8101 et seq.
 ISSUE

The issue is whether OWCP properly denied appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

In 2005 OWCP accepted that appellant, an engineer about the McArthur II, developed an aggravation of chronic obstructive pulmonary disease in the performance of duty. His pay rate has remained a disputed issue in his claim.

In the July 11, 2012 decision, an OWCP hearing representative found that the effective date of appellant’s pay rate should be December 6, 2004, the date his disability began. The record indicated that appellant was earning $50,798.00 as a second assistant engineer on December 6, 2004. Indeed, appellant represented on his initial injury claim form that he was a second engineer. The hearing representative found that average annual earnings should be determined under 5 U.S.C. § 8114(d)(2). She also found that OWCP properly included increments for penalty pay/post differential, monthly leave supplement/ nonwatch standing allowance, and subsistence and quarters. The hearing representative ultimately concluded in a decision of July 11, 2012, that appellant’s weekly pay rate for compensation purposes was $1,079.62.

On August 14, 2013 the Board affirmed the hearing representative’s July 11, 2012 decision4 as to appellant’s pay rate for compensation purposes.

On July 29, 2014 OWCP received appellant’s requested reconsideration.5 Appellant noted that he was submitting new evidence to show that at the time disability began he was a first assistant engineer and had been since 2004 [sic]. He argued that this was relevant because the employing establishment injury compensation officer had claimed that he was a second assistant engineer on the date disability began, and that he did not work as a first assistant engineer during substantially the whole year immediately preceding the date disability began. This new evidence, appellant argued, was proof that he worked as a first assistant engineer for more than 11 straight months prior to and including the date disability began. Documentation notes:

“The employing establishment acknowledges in their letter of April 4, 2012 that [appellant] was promoted to First Asst. Engineer on June 29, 2003. It was a temporary promotion and his permanent promotion to First Asst. Engineer became effective on June 11, 2004. [Appellant] worked continuously as a First Asst. Engineer from June 29, 2003 until the date disability began on January 31, 2005.”

4
Docket No. 13-0522 (issued August 14, 2013).
5
Although appellant claimed to be filing a request for reconsideration from the Board’s August 14, 2013 decision, OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R.
§ 501.6(d). Although the August 14, 2013 Board decision was the last merit decision, the hearing representative’s July 11, 2013 decision is the appropriate subject of possible modification by OWCP.

2
 Appellant submitted a copy of the April 4, 2012 letter from the manager of the employing establishment’s workers’ compensation program. The manager advised that appellant was a second assistant engineer at the time of injury and was promoted, on a temporary basis, to the position of first assistant engineer on June 29, 2003, two months after the injury. The manager argued that appellant’s weekly salary rate should be based on his pay rate as a second assistant engineer.

Appellant also submitted an SF-3112B, a supervisor’s statement in connection with disability retirement, which indicated that the title of appellant’s position of record was first assistant engineer. The statement also noted that he had entered into that position on June 11, 2004. The statement also indicated that he retired effective January 31, 2005.

By decision dated September 15, 2014, OWCP denied appellant’s reconsideration request. It found that the evidence submitted was cumulative and thus substantially similar to evidence or documentation that was already contained in the case file and was thus previously considered.

On appeal, appellant argues that his pay rate should be based on his total gross earnings a year prior to the date disability began, not based on the earnings of a hypothetical second assistant engineer under 5 U.S.C. § 8114(d)(2). He argues that the new evidence he submitted is relevant and proves that he was a first assistant engineer on December 6, 2004.

LEGAL PRECEDENT

OWCP may review an award for or against payment of compensation at any time on its own motion or upon application.6 An employee (or representative) seeking reconsideration should send the request for reconsideration to the address as instructed by OWCP in the final decision. The request for reconsideration, including all supporting documents, must be in writing and must set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.7

A request for reconsideration must be received by OWCP within one year of the date of OWCP decision for which review is sought.8 The one-year period begins on the date of the original decision. However, a right to reconsideration within one year accompanies any subsequent merit decision on the issues. This includes any hearing or review of the written record decision, any denial of modification following reconsideration, any merit decision by the Board, and any merit decision following action by the Board, but does not include pre- recoupment hearing decisions.9

6
5 U.S.C. § 8128(a).
7
20 C.F.R. § 10.606(b).
8
Id. § 10.607(a).
9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (January 2004). (Emphasis deleted.)

3
 A timely request for reconsideration may be granted if OWCP determines that the employee has presented evidence or argument that meets at least one of the three standards. If reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the request is timely but fails to meet at least one of these standards, OWCP will deny the request for reconsideration without reopening the case for a review on the merits.10

ANALYSIS

OWCP received appellant’s reconsideration request on July 29, 2014, within one calendar year of the Board’s August 14, 2013 merit decision. The request is therefore timely. The issue on this appeal is whether the evidence appellant submitted to support his request for reconsideration constitutes relevant and pertinent new evidence not previously considered by OWCP.11

The April 4, 2012 correspondence from the manager of the employing establishment’s workers’ compensation program is not new evidence. OWCP previously received this evidence on April 9, 2012 in connection with appellant’s hearing request. The hearing representative noted this evidence in her July 11, 2012 decision. Evidence that repeats or duplicates evidence already of record has no evidentiary value and constitutes no basis for reopening a case.12 Accordingly, the Board finds that this evidence does not meet the third standard for obtaining a merit review of appellant’s claim.

The August 15, 2005 SF-3112B, supervisor’s statement in connection with disability retirement, is also not new evidence. OWCP previously received this evidence on August 30, 2005, together with appellant’s IRS Form W-2 wage and tax statements. It later received this same evidence on March 28, 2007. As before, evidence that repeats or duplicates evidence already of record has no evidentiary value and does not constitute a basis for reopening appellant’s claim. Accordingly, the Board finds that this evidence does not meet the third standard for obtaining a merit review of appellant’s claim.

Appellant argues on appeal that the evidence he submitted is new and relevant and therefore entitles him to a merit review. However, as explained above, the evidence is not new. Because the evidence repeats or duplicates evidence already in the record, it provides no basis for reopening his case.

CONCLUSION

The Board finds OWCP properly denied appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).

10
20 C.F.R. § 10.608.
11
Appellant did not attempt to show that OWCP erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal argument not previously considered by OWCP 12 Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984).

4
 ORDER

IT IS HEREBY ORDERED THAT the September 15, 2014 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 2, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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