Y.M. and Department of Veterans Affairs, Puget Sound Healthcare System, Seattle VA Medical Center (Board decision, March 11, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA employee asked OWCP to reopen an earlier compensation decision. The Board found that the request raised no new legal argument, identified no error in applying law, and included no new evidence. It affirmed OWCP’s denial of merit reconsideration without deciding the underlying claim.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Denial of merit reconsideration affirmed.
• Key point: The request supplied no new legal basis or evidence for reopening.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
Y.M., Appellant
)
)
and ) Docket No. 24-0072
) Issued: March 11, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
PUGET SOUND HEALTHCARE SYSTEM,
)
SEATTLE VA MEDICAL CENTER,
)
Seattle, WA, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 2, 2023 appellant filed a timely appeal from an August 22, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated September 13, 2022, 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 over the merits of this case.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the August 22, 2023 decision, OWCP received additional evidence. 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 April 16, 2021 appellant, then a 50-year-old medical supply aid and technician, filed a traumatic injury claim (Form CA-1) alleging that on April 14, 2021 she injured her left shoulder, elbow, forearm, wrist, and ring and little fingers while in the performance of duty.3 She explained that the wheels on her case cart locked up when she turned, pushed, and pulled it into a hallway. Appellant stopped work on April 15, 2021, and returned to work on April 16, 2021.

In a development letter dated April 26, 2021, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence required and attached a questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested evidence.

In an April 14, 2021 medical report, Digna Walker, a nurse practitioner, noted that appellant related complaints of left shoulder, elbow, and wrist pain, which she attributed to maneuvering a heavy cart. She further noted a prior history of a left elbow injury in 2008, followed by arthroscopic surgery to the left elbow in 2010 and ulnar nerve transposition in 2015 by Dr. Ryan Riel, a Board-certified orthopedic and hand surgeon. Ms. Walker performed a physical examination, which revealed left elbow pain radiating to the left fourth and fifth fingers and reduced range of motion. She diagnosed left upper extremity strain with ulnar radiculopathy and released appellant to return to work with limited lifting, pushing, and pulling with the left upper extremity.

In an April 21, 2021 follow-up note, Ms. Walker noted a concern for nerve compression in the left elbow and recommended appellant remain out of work that day and seek further evaluation in the emergency room.

In an April 29, 2021 medical report, Dr. Chunbai Zhang, a Board-certified occupational medicine specialist and the employing establishment’s director of occupational/employee health, noted that appellant related complaints of pain in the left shoulder, elbow, and wrist, which she attributed to maneuvering a large heavy cart on April 14, 2021. He noted her prior left elbow injury and documented his examination findings. Dr. Zhang diagnosed “left upper extremity strain with ulnar radiculopathy, work related, new injury” and noted that appellant may require a magnetic resonance imaging (MRI) scan or an electromyography/nerve conduction velocity study.

In a May 20, 2021 statement in response to OWCP’s questionnaire, appellant indicated that on April 14, 2021 she tried to push and turn a large heavy case cart from a carpeted surface into a hallway and the wheels of the cart locked up. When she finished moving and lifting the cart, she felt tightness and pain in her left shoulder, elbow, forearm, and wrist, and her ring and little fingers

3
Appellant previously filed an occupational disease claim (Form CA-2) for a July 30, 2020 “aggravation to elbow forearm with numbness to ring and pinky (left)” injury, which OWCP denied under OWCP File No. xxxxxx717. It has not administratively combined OWCP File No. xxxxxx717 with the current claim, OWCP File No. xxxxxx416.

2 went numb. Appellant related that she had undergone medical treatment to the same body parts as recently as January 2021 due to prior injuries.

OWCP also received an employing establishment position description for medical supply technician.

By decision dated June 4, 2021, OWCP denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient to establish a diagnosed medical condition in connection with the accepted April 14, 2021 employment incident. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

OWCP continued to receive evidence following the June 4, 2021 decision. In a June 1, 2021 follow-up report, Ms. Walker diagnosed left upper extremity injuries to the shoulder, elbow, and wrist and possible strains of the left upper trapezius and/or supraspinatus, ulnar radiculopathy, and cervical radiculopathy.

A June 12, 2021 report of an MRI scan of the left elbow demonstrated a successfully repositioned ulnar nerve in the medial arm and elbow; scarring and thickening at the common flexor tendon that “may be from prior surgery or from old/chronic tendon tear”; normal bones and ligaments; and no suspicion of a tendon tear or ongoing tendinitis.

In a June 15, 2021 duty status report (Form CA-17), Dr. Zhang diagnosed left neck, shoulder, and elbow strains and released appellant to return to work with no lifting over 10 pounds and no reaching above shoulder height on the left.

A June 23, 2021 report of an MRI scan of the left shoulder demonstrated mild acromioclavicular joint arthrosis.

On June 24, 2021 appellant requested reconsideration of OWCP’s June 4, 2021 decision.

In a June 15, 2021 report, Dr. Zhang noted that appellant had recently been seen by Dr. Riel, who advised that no further surgery was necessary. He documented his examination findings and, reviewed MRI scans of the left shoulder, left elbow, and neck. Dr. Zhang diagnosed “work-related left upper extremity injury to shoulder, elbow, and wrist from pushing heavy instrument cart.”

OWCP also received a June 30, 2021 follow-up report by Ms. Walker.

By decision dated September 15, 2021, OWCP modified the June 4, 2021 decision to reflect that appellant had established a diagnosed medical condition in connection with the accepted employment incident. However, the claim remained denied because the medical evidence of record was insufficient to establish a medical condition causally related to the accepted April 14, 2021 employment incident.

OWCP continued to receive evidence, including a May 10, 2021 report and Form CA-17 by Courtney Vineyard, a nurse practitioner, who diagnosed a left shoulder rotator cuff strain, an unspecified injury to the left upper arm, and sprain of the left elbow.

3
 On September 6, 2022 appellant requested reconsideration of OWCP’s September 15, 2021 decision.

By decision dated September 13, 2022, OWCP denied modification of the September 15, 2021 decision.

On August 18, 2023 appellant requested reconsideration of OWCP’s September 13, 2022 decision.

By decision dated August 22, 2023, 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 does not entitle a claimant the review of an OWCP decision as a matter of right.4 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.5 One such limitation is that the request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.6

A timely request for reconsideration, including all supporting documents, must set forth arguments, and contain evidence that either: (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.7 When a timely request for reconsideration does not meet at least one of the above-noted requirements, OWCP will deny the request for reconsideration without reopening the case for a 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 alleged or demonstrated that OWCP erroneously applied or interpreted a specific point of law. Moreover, she has not advanced a relevant legal argument not previously

4
5 U.S.C. § 8128(a).
5
20 C.F.R. § 10.607.
6
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). 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 § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued February 20, 2020).
8
Id. at § 10.608.

4 considered. Consequently, 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

Appellant also did not submit any new evidence in connection with her August 18, 2023 reconsideration request. Thus, she is not entitled to further review of the merits of her claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).10

The Board, therefore, finds that appellant has not met 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.11

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).

9
Id. at § 10.606(b)(3); see C.M., Docket No. 23-1198 (issued February 12, 2024); N.K., Docket No. 23-0435 (issued September 28, 2023); K.D., Docket No. 22-0756 (issued November 29, 2022); C.B., Docket No. 18-1108 (issued January 22, 2019). 10 See C.M., id.; S.A., Docket No. 21-0813 (issued December 27, 2021); E.V., Docket No. 16-0080 (issued June 21, 2016).
11
See supra notes 9 and 10.

5
 ORDER

IT IS HEREBY ORDERED THAT the August 22, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 11, 2024
Washington, DC

Alec J. Koromilas, 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

6