R.R. and Department of the Army, Army National Guard, Concord, NH (Board decision, February 3, 2016)

ECAB final decision. The Board affirmed OWCP’s May 13, 2015 refusal to reopen the injury claim for merit review. It did not review the underlying denial for lack of a medical diagnosis. 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

R.R., an Army National Guard human resources assistant, reported falling on the employer’s premises during a lunch break. OWCP denied his injury claim because the record lacked a firm medical diagnosis connected to the fall. He sought reconsideration and said he needed a referral to a physician, but submitted no new medical evidence or legal argument. The Board reviewed only that reconsideration ruling. It affirmed OWCP’s refusal to reopen because the request met none of the regulatory grounds for another merits review.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. § 10.606(b)(3).
• Outcome: May 13, 2015 refusal to reopen affirmed.
• Key point: A request for a physician referral did not supply new evidence or a relevant legal argument.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.R., Appellant
)
)
and ) Docket No. 16-0212
) Issued: February 3, 2016
DEPARTMENT OF THE ARMY, ARMY
)
NATIONAL GUARD, Concord, NH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 November 5, 20151 appellant filed a timely appeal of a May 13, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed since the last merit decision on December 18, 2014 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 over the merits of this case.3

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from May 13, 2015, the date of OWCP’s last decision was November 9, 2015. Since using November 16, 2015, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is November 5, 2015, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2
5 U.S.C. § 8101 et seq.
3
On appeal, appellant has submitted additional evidence. The Board’s jurisdiction is limited to review of evidence that was before OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1). ISSUE

The issue is whether OWCP properly determined that appellant’s application for reconsideration was insufficient to warrant merit review of the claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On October 1, 2014 appellant, then a 64-year-old human resources assistant, filed a traumatic injury claim (Form CA-1) alleging that on July 17, 2014 he injured his back and neck in the performance of duty. He reported that he was walking during lunch time and fell on the sidewalk, hitting his back and neck. Appellant submitted a form report (Form CA-20) dated September 9, 2014 from Dr. Thomas Duttmacher, a family practitioner. Dr. Duttmacher provided a history of a trip and fall on a sidewalk, with a diagnosis of diabetes mellitus. The record also contains a note dated October 29, 2014 from Dr. Duttmacher reporting that appellant was being treated for a back injury on July 17, 2014. Appellant submitted a claim for compensation (Form CA-7) from August 1 to September 2, 2014.

In a letter to appellant dated November 18, 2014, OWCP noted that it was unclear if he was in the performance of duty at the time of the alleged employment incident. It advised him that the evidence did not establish that he experienced the incident alleged to have caused injury. In addition, there was no medical evidence with a firm diagnosis and an opinion on causal relationship with employment. OWCP included a questionnaire with respect to the factual circumstances regarding the incident, the filing of the claim, and the medical treatment. Appellant was advised to submit additional evidence within 30 days. OWCP also requested in a November 18, 2014 letter that the employing establishment submit information regarding the alleged July 17, 2014 employment incident.

Appellant responded in a November 25, 2014 letter that on July 17, 2014 he was on his lunch break and walking in the parking lot on the employing establishment premises when he tripped and fell. On December 3, 2014 OWCP received a response from the employing establishment confirming that the July 17, 2014 incident occurred during a lunch break on the employing establishment premises.

By decision dated December 18, 2014, OWCP denied the claim for compensation. It found there was no medical evidence with a firm diagnosis in connection with the employment incident.

On April 27, 2015 appellant submitted a request for reconsideration. He stated that he needed a referral to a physician, a Dr. Pizzarello. The record also contains a memorandum of telephone call (Form CA-110) indicating that appellant had left a voice mail on April 27, 2015 requesting a referral letter.

By decision dated May 13, 2015, OWCP found the reconsideration request was insufficient to warrant merit review of the claim.

2
 LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4 OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by submitting a written application for reconsideration that sets forth arguments and contains evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.”5 20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.6

ANALYSIS

Appellant requested reconsideration on April 27, 2015 of a December 18, 2014 OWCP decision denying his claim for compensation. OWCP had found the medical evidence was insufficient to establish an injury in the performance of duty on July 17, 2014. To be entitled to a merit review of his claim, the reconsideration request must meet one of the three requirements under 20 C.F.R. § 10.606(b)(3) discussed above.

In his reconsideration request, appellant did not show that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not previously considered by OWCP. He indicated only that he needed a referral to a physician. Appellant did not discuss a point of law or advance a new and relevant legal argument. Moreover, he did not submit any relevant and pertinent new evidence not previously considered by OWCP. The denial of the claim was based on the medical evidence, and appellant did not submit any new evidence with his reconsideration request.

Appellant therefore did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). He 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 submit relevant and pertinent evidence not previously considered by OWCP. Accordingly, the Board finds that OWCP properly denied review of the merits of his claim for compensation.

On appeal, appellant provided an additional response to the questions posed in the November 18, 2014 questionnaire. As discussed above, the Board does not have jurisdiction over the merits of the claim for compensation in this case. The only issue presented on appeal was whether appellant had met any of the requirements of 20 C.F.R. § 10.606(b)(3) to establish entitlement to a merit review of his claim. For the reasons noted, OWCP properly denied merit review in the May 13, 2015 decision.

4
5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application”). 5 20 C.F.R. § 10.606(b)(3).
6
Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3
 CONCLUSION

The Board finds that OWCP properly determined that appellant’s application for reconsideration was insufficient to warrant merit review of the claim.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated May 13, 2015 is affirmed.

Issued: February 3, 2016
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

4