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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of BETTY L. OVERSTREET and DEPARTMENT OF VETERANS AFFAIRS,

DANVILLE VETERANS HOSPITAL, Danville, IL

 

Docket No. 97-1066; Oral Argument Held March 2, 2000;

Issued March 22, 2000

 

Appearances:  Betty L. Overstreet, pro se; Miriam D. Ozur, Esq.,

for the Director, Office of Workers’ Compensation Programs.

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DECISION and ORDER

 

Before   MICHAEL J. WALSH, MICHAEL E. GROOM,

A. PETER KANJORSKI

 

 

            The issue is whether the refusal of the Office of Workers’ Compensation Programs to reopen appellant’s case for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a) constituted an abuse of discretion.

            The Board has duly reviewed the case record in the present appeal and finds that the Office did not abuse its discretion in denying appellant’s request for review.

            The only decision before the Board in this appeal is the decision dated November 20, 1996 in which the Office denied appellant’s application for review.  Since more than one year had elapsed between the date of the Office’s most recent merit decision dated July 31, 1995 and the filing of appellant’s appeal on February 4, 1997, the Board lacks jurisdiction to review the merits of appellant’s claim.[1]

            To require the Office to reopen a case for merit review under section 8128(a) of the Federal Employees’ Compensation Act,[2] the Office’s regulations provide that a claimant must: (1) show that the Office erroneously applied or interpreted a point of law; (2) advance a point of law or a fact not previously considered by the Office; or (3) submit relevant and pertinent evidence not previously considered by the Office.[3]  When a claimant fails to meet one of the above standards, it is a matter of discretion on the part of the Office whether to reopen a case for further consideration under section 8128(a) of the Act.[4]  To be entitled to merit review of an Office decision denying or terminating a benefit, a claimant must also file his or her application for review within one year of the date of that decision.[5]  Furthermore, as the only limitation on the Office’s authority is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable deduction from established facts.[6]

            In the instant case, by decision dated July 31, 1995, an Office hearing representative affirmed a September 2, 1993 Office decision.[7]  In his letter of transmittal, the hearing representative informed appellant of her appeal rights, stating that, if she had additional evidence to submit, she could request reconsideration with the Office or, if she believed all available evidence had been submitted, she could appeal to the Board.  On July 30, 1996 appellant requested reconsideration with the Office and submitted additional evidence.[8]  By decision dated November 20, 1996, the Office denied appellant’s request, finding the evidence submitted cumulative.

            In her July 30, 1996 reconsideration request, appellant argued that the medical evidence established that she continued to have employment-related disability.  This issue, however, had been addressed by the Office in previous decisions[9] and she submitted no new medical evidence in support of her claim.[10]  The Board therefore finds that she did not show that the Office erroneously applied or interpreted a point of law or advance a point of law or fact not previously considered by the Office.  Moreover, the medical evidence submitted consists of duplicates of evidence previously of record that had been considered by the Office, and the submission of evidence which repeats or duplicates evidence already in the case record does not constitute a basis for reopening a case.[11]  The Office, therefore, properly denied appellant’s application for reconsideration.

            The decision of the Office of Workers’ Compensation Programs dated November 20, 1996 is hereby affirmed.

Dated,  Washington, D.C.

            March 22, 2000

 

 

 

 

                                                                                                            Michael J. Walsh

                                                                                                            Chairman

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            A. Peter Kanjorski

                                                                                                            Alternate Member