D.R. and Department of the Army, Medical Command, Fort Benning, GA (Board decision, July 2, 2018)

ECAB final decision. The Board affirmed OWCP’s July 21, 2017 refusal to reopen D.R.’s claim for a merits review. It did not decide whether pulling a chair at work caused a compensable shoulder injury. 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

D.R., an Army cook leader, reported a left shoulder injury after pulling out a chair at work. OWCP denied his claim, then refused to reopen it after he requested reconsideration without submitting new evidence or argument. The Board found that the request met none of the conditions for a merits review under the reconsideration rule. It affirmed the refusal to reopen. The Board did not reach the merits of the shoulder injury claim.

Decision snapshot

• Authority: FECA reconsideration, 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(3).
• Outcome: July 21, 2017 refusal to reopen the injury claim affirmed; no merits review.
• Key point: A request for reconsideration without new evidence or a relevant legal argument did not require OWCP to reopen the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.R., Appellant
)
)
and ) Docket No. 18-0357
) Issued: July 2, 2018
DEPARTMENT OF THE ARMY, MEDICAL
)
COMMAND, Fort Benning, 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
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 11, 2017 appellant filed a timely appeal from a July 21, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days elapsed from the last merit decision, dated June 9, 2017, 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 claim.

1
In his application for review (Form AB-1), appellant identified a June 9, 2017 merit decision as the subject of the current appeal. The appeal is dated December 4, 2017, and the postmark on the envelope is illegible. The Clerk of the Appellate Boards received the appeal on December 11, 2017, which is more than 180 days after OWCP issued its June 9, 2017 decision. See 20 C.F.R. § 501.3(e). As the postmark is illegible and there is no other evidence, such as a certified-mail receipt, certificate of service, or an affidavit, to establish the mailing date, the Board considers the date of appeal to be December 11, 2017. Id. at § 501.3(f)(1). 2 5 U.S.C. § 8101 et seq.
 ISSUE

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

FACTUAL HISTORY

On April 26, 2017 appellant, then a 57-year-old cook leader, filed a traumatic injury claim (Form CA-1) for a torn (left) rotator cuff that allegedly occurred at work on March 27, 2017 while “pulling chair out from a table to sit down.” He stopped work on March 27, 2017 and resumed work on March 29, 2017. On the claim form appellant’s supervisor, C.H., did not challenge the claim and noted that appellant was injured in the performance of duty by placing a check in a box marked “yes.” The claim form was not accompanied by additional factual information or any medical evidence.

On April 27, 2017 an employing establishment injury compensation specialist challenged appellant’s entitlement to continuation of pay. She also argued that the current record did not establish fact of injury (medical component) or causal relationship.

By development letter dated May 1, 2017, OWCP requested that appellant respond to an attached questionnaire and submit medical evidence in order to establish his claim. Appellant was afforded 30 days to submit the requested information.

In a May 12, 2017 statement, appellant described the claimed March 27, 2017 incident at work, the pain and symptoms he experienced, and the medical treatment he received. He also indicated that he had prior surgery on April 4, 2016 that consisted of total shoulder reconstruction.

In an April 19, 2017 narrative report, Dr. George M. McCluskey III, a Board-certified orthopedic surgeon, related that appellant pulled a chair out from a table with his left arm to sit down and felt a pop in his left shoulder. He reviewed appellant’s history and provided physical examination findings. Dr. McCluskey diagnosed rotator cuff tear and recommended surgery. He provided a work status report, which recommended no work.

On May 16, 2017 Dr. McCluskey performed a left shoulder open rotator cuff repair, subscapularis. The post- and preoperative diagnoses were left shoulder traumatic rotator tear and status post April 4, 2016 total shoulder replacement for osteoarthritis.

OWCP received several medical reports by Dr. McCluskey, which predated the claimed March 27, 2017 employment injury. In a June 17, 2015 narrative report, Dr. McCluskey described appellant’s history of left shoulder pain, provided examination findings, and diagnosed left shoulder pain and osteoarthritis. The April 4, 2016 operative report was also provided. In narrative reports dated April 11 and June 15, 2016, Dr. McCluskey noted that appellant underwent left total shoulder replacement surgery on April 4, 2016. In a September 20, 2016 status report form, he indicated that appellant had been under his care since June 17, 2016.

By decision dated June 9, 2017, OWCP denied appellant’s claim because the evidence of record was insufficient to establish fact of injury. It found that he did not submit sufficient factual evidence to substantiate that the March 27, 2017 employment incident occurred as alleged. OWCP

2 also determined that the medical evidence submitted failed to establish a diagnosis in connection with the alleged March 27, 2017 incident.

On July 3, 2017 appellant requested reconsideration. No other evidence was submitted with his request.

By decision dated July 21, 2017, OWCP denied further merit review of appellant’s claim under 5 U.S.C. § 8128(a). It found that appellant’s reconsideration request neither raised substantive legal questions nor included new and relevant evidence sufficient to warrant further merit review of her claim.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether to review an award for or against compensation. The Secretary of Labor may review an award for or against compensation at any time on his own motion or on application.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or an argument that: (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.4

A request for reconsideration must also be received by OWCP within one year of the date of OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it reopens and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will deny the request for reconsideration without reopening the case for review on the merits.7

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration as he did not submit any evidence with his reconsideration request to warrant merit review under 5 U.S.C. § 8128(a).

OWCP did not receive any additional evidence with appellant’s July 3, 2017 reconsideration request. Accordingly, the Board finds that appellant has not shown that OWCP erroneously applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument not previously considered by OWCP or submitted relevant and pertinent

3
Id. at § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
4
20 CFR § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
5
Id. at § 10.607(a).
6
Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
7
Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

3 new evidence not previously considered by OWCP. The Board finds, therefore, that appellant has not met any of the regulatory requirements and OWCP properly declined his request for reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).8

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 21, 2017 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 2, 2018
Washington, DC

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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

8
A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

4