F.K. and U.S. Postal Service, Post Office, Tinley Park, IL (Board decision, November 17, 2015)

ECAB final decision. The Board affirmed OWCP’s May 18, 2015 refusal to reopen F.K.’s claim for a merits review. The Board did not decide whether her injury qualified for compensation. 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

F.K., a postal letter carrier, had received benefits for a cervical condition after a vehicle collision during mail delivery. OWCP later withdrew its acceptance of that condition and terminated benefits. Her attorney sought another review of the merits, arguing that the impartial examiner’s opinion was flawed. The Board found that the arguments substantially repeated ones OWCP had already considered and that the request included no new medical evidence. It affirmed OWCP’s refusal to reopen the claim and did not revisit the underlying benefit termination.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. § 10.606(b)(3).
• Outcome: May 18, 2015 refusal to reopen the claim affirmed; merits of benefit termination not reviewed.
• Key point: Repeating arguments already addressed by OWCP did not require a new merits review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.K., Appellant
)
)
and ) Docket No. 15-1528
) Issued: November 17, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Tinley Park, IL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 6, 2015 appellant, through counsel, filed a timely appeal of a May 18, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from April 28, 2014, the most recent OWCP merit decision, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

ISSUE

The issue is whether OWCP properly refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

On appeal counsel argues that OWCP should have granted a review of the merits. He further contends that OWCP may not have given appellant’s request for reconsideration a review at all.

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

On January 30, 2009 appellant, a 41-year-old letter carrier, filed a traumatic injury claim (Form CA-1), alleging that she sustained an injury on October 1, 2008 as a result of being struck on the left side of her postal vehicle during a motor vehicle accident while delivering mail in the performance of duty. OWCP accepted the claim for displacement of cervical intervertebral disc without myelopathy and appellant received compensation benefits.

OWCP referred appellant to Dr. Steven Mather, an orthopedic surgeon, for an impartial medical examination to determine the nature and extent of her employment-related condition following the identification of a conflict in the medical record of this case. In his August 1, 2012 report, Dr. Mather found that appellant had “no findings on examination, nor any neck complaints after her motor vehicle accident by her treating physicians in November 2008, to validate the neck injury was from the October motor vehicle accident.” He concluded that appellant had no employment-related conditions or residuals.

In a December 17, 2012 letter, OWCP proposed to rescind the acceptance of appellant’s cervical condition and terminate her compensation benefits after finding that her cervical condition was not employment related. It afforded her 30 days to submit additional evidence or argument if she was in disagreement with the proposed action.

In a brief dated January 17, 2013, appellant’s attorney argued that Dr. Mather’s opinion was insufficiently based on the statement of accepted facts (SOAF) and lacked sufficient probative value to rescind appellant’s accepted cervical condition and terminate her compensation benefits.

By decision dated March 5, 2013, OWCP rescinded the acceptance of appellant’s cervical condition and terminated her compensation benefits finding that her cervical condition was not employment related, relying upon Dr. Mather’s August 1, 2012 report.

On March 5, 2014 appellant, through counsel, requested reconsideration and submitted additional medical evidence, including a January 27, 2014 report from Dr. Nadia Siddiqui, her internist.

By decision dated April 28, 2014, OWCP denied modification of its March 5, 2013 termination decision. It explained that the weight of the medical evidence continued to rest with Dr. Mather as he was an appropriate specialist to evaluate the claimed conditions, that he reviewed appellant’s file, and that he conducted a thorough physical examination, and that he provided an unequivocal and well-reasoned medical opinion resolving the conflict in medical opinion based on accurate and consistent factual and medical history.

On April 27, 2015 appellant, through counsel, requested reconsideration of the merits of her claim. Counsel submitted a brief dated April 26, 2015 arguing: (1) Dr. Mather had not based his opinion on the SOAF; (2) OWCP had not given Dr. Mather the correct standard for determining whether appellant’s diagnosis was related to her work injury; and (3) Dr. Mather never answered the questions that OWCP presented to him.

2
 By decision dated May 18, 2015, OWCP denied appellant’s request for reconsideration of the merits finding that she did not submit pertinent new and relevant evidence and did not show that OWCP erroneously applied or interpreted a point of law not previously considered by OWCP.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as a matter of right; it vests OWCP with discretionary authority to determine whether it will review an award for or against compensation.2 OWCP, through regulations, has imposed limitations on the exercise of its discretionary authority under section 8128(a).3

To require OWCP to reopen a case for merit review under section 8128(a) of FECA, OWCP regulations provide that the evidence or argument submitted by 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 To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a claimant’s application for review must be received within one year of the date of that decision.5 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.6

The Board has held that the submission of evidence or argument which repeats or duplicates evidence or argument already in the case record7 and the submission of evidence or argument which does not address the particular issue involved does not constitute a basis for reopening a case.8

ANALYSIS

The Board finds that OWCP properly refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

Appellant did not submit any evidence to show that OWCP erroneously applied or interpreted a specific point of law or advanced a relevant legal argument not previously

2
5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 3 See Annette Louise, 54 ECAB 783, 789-90 (2003).
4
20 C.F.R. § 10.606(b)(3).
5
Id. at § 10.607(a).
6
Id. at § 10.608(b).
7
See A.L., Docket No. 08-1730 (issued March 16, 2009).
8
Id.

3 considered by OWCP. In support of her April 27, 2015 reconsideration request, appellant’s counsel submitted a brief dated April 26, 2015 arguing that: (1) Dr. Mather had not based his opinion off of the SOAF; (2) OWCP had not given Dr. Mather the correct standard in determining whether appellant’s diagnosis was related to her work injury; and (3) Dr. Mather never answered the questions that OWCP presented to him.

The Board finds that submission of these arguments does not require reopening appellant’s case for merit review as they are substantially similar to the arguments counsel presented in his January 17, 2013 brief and were addressed by OWCP in its merit decisions dated March 5, 2013 and April 28, 2014, which found that Dr. Mather was an appropriate specialist, reviewed the entire case file, completed a thorough physical examination, and provided a well- reasoned and unequivocal medical opinion based on a complete, accurate, and consistent history of appellant’s case. Therefore, this evidence is repetitive or duplicative of arguments previously considered and reviewed by OWCP, it does not constitute relevant and pertinent new evidence and is insufficient to require OWCP to reopen the claim for consideration of the merits.9 Appellant did not submit any new medical evidence in support of her request.

On appeal counsel argues that OWCP should have granted a review of the merits. The Board finds that as appellant did not meet any of the necessary requirements, she is not entitled to further merit review.10 Counsel further contends on appeal that OWCP may not have given appellant’s request for reconsideration a review at all. The Board finds that counsel’s argument is not substantiated as OWCP noted considering counsel’s brief.

CONCLUSION

The Board finds that OWCP properly refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

9
See supra note 7.
10
See L.H., 59 ECAB 253 (2007).

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 ORDER

IT IS HEREBY ORDERED THAT the May 18, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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