U. S. DEPARTMENT OF LABOR
Employees’ Compensation Appeals Board
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In the Matter of EDWIN R. CAPEN and U.S. POSTAL SERVICE,
POST OFFICE, Rhododendron, Oreg.
Docket No. 97-392; Submitted on the Record;
Issued May 21, 1999
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DECISION and ORDER
Before MICHAEL J. WALSH, DAVID S. GERSON,
WILLIE T.C. THOMAS
The issue is whether the refusal of the Office of Workers’ Compensation Programs to reopen appellant’s case for further review on the merits of his claim under 5 U.S.C. § 8128(a) constituted an abuse of discretion.
The Board’s jurisdiction to consider and decide appeals from final decisions of the Office extends only to those final decisions issued within one year prior to the filing of the appeal.[1] As appellant filed his request for appeal on October 23, 1996, the only decision before the Board is the September 4, 1996 nonmerit decision denying appellant’s application for review. The Board has no jurisdiction to review the most recent merit decision of record, the October 27, 1995 decision of the Office.
The Board finds that the refusal of the Office to reopen appellant’s case for further consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a) did not constitute an abuse of discretion.
Section 8128(a) does not require the Office to review final decisions of the Office awarding or denying compensation. This section vests the Office with the discretionary authority to determine whether it will review a claim following the issuance of a final decision by the Office.[2] Although it is a matter of discretion on the part of the Office of whether to reopen a case for further consideration under 5 U.S.C. § 8128(a),[3] the Office, through regulations, has placed limitations on the exercise of that discretion with respect to a claimant’s request for reconsideration. By these regulations, the Office has stated that it will reopen a claimant’s case and review the case on its merits whenever the claimant’s application for review meets the specific requirements set forth in sections 10.138(b)(1) and 10.138(b)(2) of Title 20 of the Code of Federal Regulations.
To require the Office to reopen a case for reconsideration, section 10.138(b)(1) of Title 20 of the Code of Federal Regulations provides in relevant part that a claimant may obtain review of the merits of his or her claim by written request to the Office identifying the decision and specific issue(s) within the decision which the claimant wishes the Office to reconsider and the reasons why the decision should be changed and by:
“(i) Showing that the Office erroneously applied or interpreted a point of law; or
“(ii) Advancing a point of law or fact not previously considered by the Office; or
“(iii) Submitting relevant and pertinent evidence not previously considered by the Office.”[4]
Section 10.138(b)(2) provides that any application for review of the merits of the claim which does not meet at least one of the requirements listed in paragraphs (b)(1)(i) through (iii) of this section will be denied by the Office without review of the merits of the claim.[5]
Evidence which does not address the particular issue involved,[6] or evidence which is repetitive or cumulative of that already in the record,[7] does not constitute a basis for reopening a case. However, the Board has held that the requirement for reopening a claim for a merit review does not include the requirement that a claimant must submit all evidence which may be necessary to discharge his or her burden of proof. Instead, the requirement pertaining to the submission of evidence in support of reconsideration only specifies that the evidence be relevant and pertinent and not previously considered by the Office.[8]
In the present case, in support of his August 11, 1996 reconsideration request, appellant submitted his own statement, a December 16, 1994 report from Dr. Jerome B. Brem, appellant’s treating Board-certified rheumatologist and internist, letters from the Office dated February 1, June 2 and 23, 1994, copies of bills from the Portland Clinic and an article from Nation magazine, “Mailroom Mayhem.”
On September 4, 1996 the Office properly performed a limited examination of the material presented by appellant to determine the relevancy and probative value of the new evidence, and it found that the evidence submitted was insufficient to support a review of the case on its merits.
The Board notes that the factual statement and explanations by appellant did not relate to the medical issue at hand, which was whether appellant sustained a recurrence of temporary total disability, causally related to his accepted conditions of temporary aggravation, osteoarthritis, both hands and tendinitis, right shoulder, and are therefore immaterial, and do not provide a basis for reopening appellant’s case for a merit review.
Appellant has submitted an article regarding the pressures on postal employees from high speed machines and outside competition. Although this constitutes new evidence not previously considered by the Office, it is not relevant to the reason appellant’s claim was denied, whether appellant’s recurrence of disability is causally related to his accepted employment injury. Therefore, this article is not sufficient to require the Office to reopen appellant’s claim for review of the merits.
Dr. Brem’s report was previously reviewed by the Office in support of appellant’s original claim and therefore is repetitious and duplicative, and therefore also provides no basis for reopening appellant’s claim for a review on its merits.
As appellant provided insufficient evidence to require the reopening of his claim for further examination on its merits, the Office properly denied merit review.
Accordingly, the decision of the Office of Workers’ Compensation Programs dated September 4, 1996 is hereby affirmed.
Dated, Washington, D.C.
May 21, 1999
Michael J. Walsh
Chairman
David S. Gerson
Member
Willie T.C. Thomas
Alternate Member