B.R. and Department of Veterans Affairs, Veterans Health Administration, Decatur, GA (Board decision, January 4, 2018)

ECAB final decision. The Board affirmed OWCP’s February 1, 2017 refusal to reopen the claim for merit review. It did not decide whether the hand condition was work related. 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

B.R. sought reconsideration of a denial involving a claimed work-related condition of both hands. OWCP had found no medical evidence establishing a diagnosed condition causally related to the accepted work factors. Her new statement described her understanding of the diagnosis but supplied no new medical evidence or relevant legal argument. The Board found that she did not meet the requirements for reopening and affirmed the refusal.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. § 10.606(b)(3).
• Outcome: February 1, 2017 refusal of merit reconsideration affirmed.
• Key point: A claimant’s description of medical evidence did not replace a new physician opinion on causation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.R., Appellant
)
)
and ) Docket No. 17-1661
) Issued: January 4, 2018
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Decatur, GA, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 26, 2017 appellant filed a timely appeal from a February 1, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from the most recent merit decision, dated December 27, 2016, the date of 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 the claim.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On September 21, 2016 appellant, then a 53-year-old program support clerk, filed an occupational disease claim (Form CA-2) alleging that she developed tendinitis as a result of an

1
5 U.S.C. § 8101 et seq. increased workload of typing and writing. She first became aware of her condition and of its relationship to her federal employment on June 1, 2016. A supervisor noted that appellant had stopped work on September 16, 2016 at 1:00 p.m. and returned to work on the same date at 3:00 p.m.

By development letter dated November 2, 2016, OWCP informed appellant of the evidence necessary to support her claim and requested that she submit additional factual and medical evidence. It requested that she respond to a questionnaire and afforded her 30 days to submit additional evidence. In a letter of the same date, OWCP requested additional evidence from the employing establishment with regard to appellant’s duties as a federal employee.

On November 21, 2016 appellant responded to OWCP’s inquiries. She stated that she had visited her physician in June 2016 and that she was experiencing aching, burning, cramping, stiffness, numbness, pain, swelling, tingling, and weakness bilaterally in her hands, wrists, and fingers. Appellant described her duties as including typing, writing, placing records in boxes and envelopes, and answering telephones. She noted that on weekends she washed and cleaned her house. Appellant stated that her symptoms were constant and that nothing had been effective in curing them. She noted that she had no previous injuries to her hands, arms, or wrists, and had never been diagnosed with gout, arthritis, hypothyroidism, diabetes, or ganglion.

By letter dated November 21, 2016, Dr. Elsie Morris, Board-certified in occupational medicine, diagnosed a repetitive use work-related injury and tendinitis. She noted that on physical examination appellant’s wrists were negative for swelling, with “increased prominence” of both ulna and radial styloid bones, along with tenderness to palpation over the carpal bones bilaterally. Appellant experienced pain with flexion, extension, and medial bending of the wrists. Dr. Morris noted that her workload had recently increased due to staff shortage and that she typed and wrote for eight hours per day processing medical records.

By letter dated November 25, 2015, the employing establishment responded to OWCP’s inquiries. A supervisor noted that appellant’s duties included organizing and managing patients’ health information, entering veterans’ information by typing and writing, answering the telephone, putting veterans’ records into boxes and envelopes, ensuring paperwork was properly filled out, verifying the accuracy and accessibility of files, ensuring all files are secure, communicating with physicians and other health care professionals to clarify diagnoses or to obtain additional information, maintaining electronic health records databases, and analyzing electronic data.

By decision dated December 27, 2016, OWCP denied appellant’s claim. Although it accepted the implicated factors of her federal employment, it found that she had not submitted any medical evidence containing a firm diagnosis causally related to the accepted factors of her federal employment. On January 13, 2017 appellant requested reconsideration. With her request she submitted a narrative statement in which she stated, “I received a telephone call in 12/2016 stating that the claims examiner did not know what part of my body was injured. Throughout all the documents provided both hands was listed and tendonitis was the diag.”

By decision dated February 1, 2017, OWCP denied appellant’s request for reconsideration. It found that her January 10, 2017 letter was not relevant to the reason her claim

2 was denied, because it was not medical evidence. OWCP further found that Dr. Morris’ report dated November 21, 2016 was already considered in its previous decision.

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 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.2 Section 10.608(b) of OWCP’s regulations provide that when an application for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration without reopening the case for a review on the merits.3

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

OWCP issued a merit decision dated December 27, 2016 in which it found that appellant had not submitted any medical evidence containing a firm diagnosis of a medical condition causally related to the accepted factors of her federal employment. Therefore this is the underlying issue in this case.

In her January 13, 2017 request for reconsideration, appellant did not show that OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant legal argument not previously considered.

With her reconsideration request, appellant submitted a narrative statement in which she stated, “I received a telephone call in 12/2016 stating that the claims examiner did not know what part of my body was injured. Throughout all the documents provided both hands was listed and tendonitis was the diag.” The underlying issue in this case is whether appellant developed an occupational disease causally related to factors of her employment. That is a medical issue which must be addressed by new and relevant medical evidence.4 Appellant’s own factual interpretation of the medical evidence does not constitute relevant medical evidence,5 as lay persons are not competent to render medical opinion.6

The Board therefore finds that, appellant did not show that OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant legal argument not previously

2
20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).
3
Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).
4
See Bobbie F. Cowart, 55 ECAB 746 (2004).
5
See L.I., Docket No. 17-0759 (issued July 6, 2017).
6
See S.G., Docket No. 17-0968 (issued September 13, 2017); James A. Long, 40 ECAB 538 (1989).

3 considered. Thus, appellant is not entitled to a review of the merits of her claim based on the first and second above-noted requirements under section 10.606(b)(3).

Appellant did not submit any additional medical evidence in support of her request for reconsideration. Therefore she did not submit relevant or pertinent new evidence not previously considered. As such, the Board finds that appellant did not meet the third above-noted requirement of 20 C.F.R. § 10.606(b)(3) in her reconsideration request.

The Board accordingly finds that appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the February 1, 2017 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 4, 2018
Washington, DC

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

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

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

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