D.T. and U.S. Postal Service, Processing & Distribution Center, Indianapolis, IN (Board decision, September 1, 2020)

ECAB final decision. July 2, 2019 nonmerit reconsideration denial affirmed. 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.T. sought reconsideration of a claim denied because the record did not establish that the alleged injury events occurred. Her new medical work status reports did not address that factual issue. The Board found no other qualifying legal argument or new evidence and affirmed OWCP’s July 2, 2019 refusal to reopen the claim.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(3) requirements for merit reconsideration.
• Outcome: July 2, 2019 nonmerit reconsideration denial affirmed.
• Key point: Medical reports about work status did not address the reason the claim had been denied.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.T., Appellant
)
)
and ) Docket No. 20-0456
) Issued: September 1, 2020
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Indianapolis, IN,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 28, 2019 appellant, through counsel, filed a timely appeal from a July 2, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated April 3, 2018, 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
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that, following the July 2, 2019 decision, OWCP received additional evidence. 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.

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 June 2, 2000 appellant, then a 51-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging that on June 1, 2000 she sustained a buttock injury when she fell while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx097 and accepted it for a contusion of the left buttock and low back sprain.

On February 8, 2018 appellant, then a 69-year-old mail processing clerk, filed a notice of recurrence (Form CA-2a) alleging disability due to her employment-related conditions. She alleged an increase of shingles episodes, left hip pain, and left shoulder pain due to factors of her federal employment, including repetitive motions. Appellant noted that the recurrence of disability was a gradual and slow process starting around February 1, 2018.

In a February 7, 2018 work status report, Dr. Victor N. Egwu, an orthopedic specialist, held appellant off work until February 19, 2018.

In a development letter dated February 22, 2018, OWCP converted appellant’s recurrence claim to one for a new occupational disease claim, and assigned OWCP File No. xxxxxx687 and informed her that the evidence of record was insufficient to establish her claim. It advised her of the type of factual and medical evidence needed and attached a factual questionnaire for her completion, requesting that she provide a detailed description of the employment-related factors she believed contributed to her conditions, including a description of her required duties, relevant dates, and how often she performed those duties. OWCP afforded appellant 30 days to respond.

In a February 23, 2018 medical note, Dr. Egwu noted that appellant was scheduled for surgical procedure on her left shoulder on March 6, 2018. In a work status report of even date, he recommended that she remain off work until April 4, 2018. In a March 21, 2018 work status report, Dr. Egwu indicated that on March 6, 2018 appellant underwent left shoulder arthroscopy and could not perform her job duties.

By decision dated April 3, 2018, OWCP denied appellant’s occupational disease claim, noting that she had not responded to its February 22, 2018 development letter requesting specific factual information regarding the employment-related factors that she believed contributed to her conditions. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

OWCP subsequently received an April 9, 2018 work status report, wherein Dr. Egwu held appellant off work until May 2, 2018. In a May 2, 2018 work status report, Dr. Egwu recommended postponing her return to work for at least four weeks. He also indicated that appellant was undergoing physical therapy.

In an undated medical report, Dr. Marcus Hinkle, a physical therapist, noted that appellant underwent a left shoulder surgery and recommended limited-duty work.

On April 3, 2019 appellant, through counsel, requested reconsideration.
2

By decision dated July 2, 2019, OWCP denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

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.4

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 OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.5

A request for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens and reviews the case on its merits.7 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.8

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).

Appellant has not shown that OWCP erroneously applied or interpreted a specific point of law. Moreover, she has not advanced a relevant legal argument not previously considered. As such, appellant is not entitled to a review of the merits of her claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).9

In support of her request for reconsideration, appellant submitted April 9 and May 2, 2018 work status reports from Dr. Egwu and an undated medical report from Dr. Hinkle. While these

4
5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008). 5 20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket No. 18-1259 (issued January 25, 2019).
6
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b. 7 Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324 (issued January 21, 2020); M.S., 59 ECAB 231 (2007).
8
Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued June 21, 2019).
9
E.W., supra note 5; T.V., Docket No. 19-1504 (issued January 23, 2020).

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reports were new to the record, they were not relevant to the issue for which OWCP denied her claim, the failure to establish the factual component of her claim because the evidence did not support that the injury or events occurred as alleged.10 The Board has held that the submission of evidence or argument which does not address the particular issue involved does not constitute a basis for reopening a claim.11 Thus, appellant is not entitled to a review of the merits of her claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12

The Board accordingly finds that, as appellant has not satisfied any of the three requirements under 20 C.F.R. § 10.606(b)(3) to warrant further merit review of her claim, OWCP properly denied her request for reconsideration.13

On appeal counsel argues that OWCP improperly denied review when appellant presented evidence of causal relationship. As previously noted, however, the Board does not have jurisdiction over the April 3, 2018 merit decision.

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 July 2, 2019 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 1, 2020
Washington, DC

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

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

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

10
See R.W., supra note 7; Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984).
11
E.J., Docket No. 19-1509 (issued January 9, 2020); S.W., Docket No. 19-1498 (issued January 9, 2020).
12
A.G., Docket No. 20-0290 (issued June 24, 2020).
13
C.A., Docket No. 19-0160 (issued January 16, 2020); L.E., Docket No. 19-0470 (issued August 12, 2019).

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