C.L. and U.S. Postal Service, Southfield Post Office, Shreveport, LA (Board decision, August 5, 2020)

ECAB final decision. The Board affirmed OWCP's June 19, 2019 denial of C.L.'s occupational disease claim and its October 9, 2019 refusal to reopen that claim. 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

C.L., a postal carrier, reported back, knee, and leg symptoms that she attributed to repeatedly climbing steps at work. OWCP denied the occupational disease claim, and the Board affirmed because she had supplied no medical evidence establishing a diagnosed condition related to the accepted work factors. She sought reconsideration with a request form but no argument or supporting evidence. The Board upheld OWCP's refusal to reopen the claim because the request did not meet the criteria for merit review. It could not consider evidence first supplied after OWCP's decisions.

Decision snapshot

• Authority: FECA occupational disease proof and reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(3).
• Outcome: June 19, 2019 claim denial and October 9, 2019 reconsideration denial affirmed.
• Key point: No medical evidence established the claimed condition, and a bare reconsideration form did not warrant reopening.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.L., Appellant
)
)
and ) Docket No. 20-0385
) Issued: August 5, 2020
U.S. POSTAL SERVICE, SOUTHFIELD POST
)
OFFICE, Shreveport, LA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 9, 2019 appellant filed a timely appeal from a June 19, 2019 merit decision and an October 9, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish a medical condition causally related to the accepted factors of her federal employment; and (2) whether

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional evidence on appeal and to OWCP following the October 9, 2019 decision. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 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 March 20, 2019 appellant, then a 41-year-old city carrier, filed an occupational disease claim (Form CA-2) alleging that she developed back spasms and knee and leg pain due to factors of her federal employment including continuous climbing of steps in the performance of duty. She indicated that she first became aware of her condition on October 10, 2018 and first realized its relationship to factors of her federal employment on October 4, 2018. Appellant did not stop work.

In a May 2, 2019 development letter, OWCP informed appellant that the evidence of record was insufficient to establish her claim. It advised her of the type of factual and medical evidence needed and provided a questionnaire for her completion. In a separate development letter of even date, OWCP requested that the employing establishment provide additional information regarding appellant’s occupational disease claim from a knowledgeable supervisor. It afforded both parties 30 days to submit the necessary evidence. No additional evidence was received from either party.

By decision dated June 19, 2019, OWCP denied appellant’s occupational disease claim, finding that the medical evidence of record was insufficient to establish a medical diagnosis in connection with the accepted factors of federal employment.

On August 29, 2019 appellant requested reconsideration via an appeal request form. No additional argument or evidence was received.

By decision dated October 9, 2019, OWCP denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 has the burden of proof to establish the essential elements of his or her claim, including the fact that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury.5 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

3
Supra note 1.
4
S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989). 5 M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6
S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).

2
 To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit the following: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the identified employment factors.7

Causal relationship is a medical question that requires rationalized medical opinion evidence to resolve the issue.8 The opinion of the physician must be based on a complete factual and medical background of the claimant, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the claimant.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish a medical condition causally related to the accepted factors of her federal employment.

To establish that she sustained an occupational disease in the performance of duty, appellant must submit medical evidence that establishes the presence or existence of the disease or condition for which compensation is claimed and that the diagnosed condition is causally related to the identified employment factors.10 As appellant has not submitted any medical evidence, she has not established a medical diagnosis in connection with the accepted employment factors. The Board thus finds that she has not met her burden of proof to establish her claim.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

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 or her own motion or on application.11

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by 7 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J. Woodhams, 41 ECAB 345 (1989). 8 L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
9
A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).
10
Supra note 7.
11
5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); W.C., 59 ECAB 372 (2008).

3
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.12

A request for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought.13 If it chooses to grant reconsideration, it reopens and reviews the case on its merits.14 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.15

ANALYSIS -- ISSUE 2

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).

In her timely request for reconsideration, appellant only submitted a request form with no accompanying statement or medical evidence. As such, she 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 new evidence not previously considered by OWCP.16 Consequently, appellant is not entitled to a review of the merits of her claim based on any of the above-noted requirements under 20 C.F.R. § 10.606(b)(3).

On appeal appellant submitted new factual and medical evidence. However, as noted, the Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.17 Accordingly, the Board is precluded from reviewing this additional evidence for the first time on appeal.18

12
20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); C.N., Docket No. 08-1569 (issued December 9, 2008).
13
Id. at § 10.607(a); see K.T., Docket No. 18-0927 (issued May 13, 2020). Timeliness is determined by the document receipt date (i.e., “the received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). If the request for reconsideration has a document received date greater than one year, the request must be considered untimely. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016). 14 Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).
15
Id. at § 10.608(b); see C.C., supra note 12; E.R., Docket No. 09-1655 (issued March 18, 2010).
16
Supra note 12.
17
Supra note 2.
18
Id.

4
 The Board therefore finds pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit 19 review.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a medical condition causally related to the accepted factors of her federal employment. The Board further finds that OWCP properly denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the October 9, 2019 nonmerit decision and the June 19, 2019 merit decision of the Office of Workers’ Compensation Programs are affirmed.

Issued: August 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

19
D.M., Docket No. 18-1003 (July 16, 2020); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request without reopening the case for a review on the merits).

5