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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

____________

 

In the Matter of ROBERT P. MITCHELL and DEPARTMENT OF THE ARMY,

NATIONAL GUARD, Takoma, WA

 

Docket No. 97-2145; Oral Argument Held July 6, 2000;

Issued October 13, 2000

 

Appearances:  John E. Goodwin, Esq., for appellant; Sheldon G. Turley, Jr., Esq.,

for the Director, Office of Workers’ Compensation Programs.

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DECISION and ORDER

 

Before   DAVID S. GERSON, 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 his claim, pursuant to 5 U.S.C. § 8128(a), constituted an abuse of discretion.

            On July 28, 1993 appellant, then a 33-year-old welder, sustained an employment-related low back strain.  Appellant received compensation for various periods of disability and stopped working on September 29, 1994.  On February 7, 1995 appellant underwent bilateral laminectomies, decompression of nerve roots and fusion surgery at L5-S1 which was authorized by the Office.  The Office determined that appellant sustained an employment-related permanent aggravation of preexisting spondylolisthesis and began paying compensation for temporary total disability beginning February 7, 1995.

            On July 17, 1995 the employing establishment offered appellant a position as a supply technician on a part-time basis.  The position was essentially sedentary in nature and required lifting of up to 10 pounds.  On June 23, 1995 Dr. John C. Misko, an attending Board-certified neurosurgeon, provided work restrictions which indicated that appellant was physically capable of performing the position.

            By letter dated July 20, 1995, the Office advised appellant that it had reviewed the medical evidence and the description of the supply technician position and had determined that the position was suitable.  The Office further advised appellant of the provisions of 5 U.S.C. § 8106(c) regarding the consequences of refusing or neglecting to work after suitable work has been offered, informed him that the position was still available, and notified him that he had 30 days to accept the offered position or provide reasons for refusing it.

            The record reveals that on August 17, 1995 appellant chose to receive disability retirement benefits from the Office of Personnel Management (OPM) beginning August 20, 1995, rather than accept the supply technician position offered by the employing establishment.[1] By letter dated August 31, 1995, the Office advised appellant that choosing to receive retirement benefits from OPM was not an acceptable reason for refusing an offer of suitable work and provided him with an additional 15 days to accept the offer without penalty.  The Office advised appellant that if he did not accept the offered position within the allotted time period, his entitlement to all monetary benefits would be terminated.  Appellant did not accept the offer within the allotted time.[2]  By decision dated September 21, 1995, the Office terminated appellant’s entitlement to all monetary benefits on the grounds that he refused an offer of suitable work.

            By letter dated August 5, 1996, appellant requested reconsideration of the Office’s September 21, 1995 decision and claimed that choosing to receive retirement was an acceptable reason for refusing the employing establishment’s job offer.  By decision dated September 24, 1996, the Office denied appellant’s request for merit review.[3]

            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.

            The only decision before the Board on this appeal is the Office’s September 24, 1996  decision denying appellant’s request for a review on the merits of its September 21, 1995 decision.  Because more than one year has elapsed between the issuance of the Office’s September 21, 1995 decision and June 3, 1997, the date appellant filed his appeal with the Board, the Board lacks jurisdiction to review the September 21, 1995 decision.[4]

            To require the Office to reopen a case for merit review under section 8128(a) of the Federal Employees’ Compensation Act,[5] 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.[6]  To be entitled to a 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.[7]  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.[8]

            In support of his reconsideration request, appellant argued, through his attorney, that the Office’s September 21, 1995 decision should be reopened for merit review because he was presenting a new legal argument.  Appellant argued that electing to receive disability retirement was a justifiable reason to refuse an offer of suitable work.[9]

            However, the Board has consistently held that electing to receive disability retirement is not a justifiable reason to refuse an offer of suitable work.  In Roy E. Bankston,[10] the Board affirmed the Office’s termination of compensation where the employee chose to receive retirement benefits rather than accept the suitable work offered by the employing establishment.  In Stephen R. Lubin,[11] the Board noted that the employee’s election to receive retirement benefits was not a valid reason for refusing an offer of suitable work.[12]

            Appellant argued that the Office procedural manual included electing to receive retirement benefits as an acceptable reason for refusing suitable work.  As detailed above, the Board has consistently held that electing to receive retirement benefits is not an acceptable reason for refusing suitable work.  Moreover, a review of the relevant provisions of Office procedure[13] does not establish that electing to receive retirement benefits was an acceptable
reason for refusing an offer of suitable work when appellant refused the Office’s job offer in August 1995.[14]

            While a reopening of a case may be predicated solely on a legal premise not previously considered, such reopening is not required where the legal contention does not have a reasonable color of validity.[15]  For the reasons explained above, the Board finds that appellant’s contentions, which may be construed as legal contentions, do not have a reasonable color of validity.

            For these reasons, appellant has not shown that the Office erroneously applied or interpreted a point of law, advanced a point of law or a fact not previously considered by the Office or submitted relevant and pertinent evidence not previously considered by the Office such that the Office would be required to reopen his claim.[16]  Therefore, appellant has not established that the Office abused its discretion in its September 24, 1996 decision by denying his request for a review on the merits of its September 21, 1995 decision under section 8128(a) of the Act.

            The decision of the Office of Workers’ Compensation Programs dated September 24, 1996 is affirmed.

Dated,  Washington, DC

            October 13, 2000

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            A. Peter Kanjorski

                                                                                                            Alternate Member