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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of ANGELA J. BROWN and DEPARTMENT OF HEALTH & HUMAN SERVICES, NATIONAL INSTITUTES OF HEALTH, Bethesda, MD

 

Docket No. 00-450; Submitted on the Record;

Issued April 16, 2001

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DECISION and ORDER

 

Before   MICHAEL J. WALSH, DAVID S. GERSON,

MICHAEL E. GROOM

 

 

            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 finds that the refusal of the Office 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.

            In 1989 the Office accepted that appellant sustained bilateral carpal tunnel syndrome due to employment factors.[1]  In 1991 the Office accepted that appellant sustained an aggravation of bilateral carpal tunnel syndrome due to her typing duties at the employing establishment.  Appellant received compensation for periods of disability through April 29, 1992.

            By decision dated September 22, 1995, the Office terminated appellant’s compensation effective April 29, 1992 on the grounds that the medical evidence showed that she had no employment-related disability after that date.[2]  The Office based its termination on the opinion of Dr. Nathan Price, a Board-certified orthopedic surgeon to whom it referred appellant for a second opinion.[3]

            By decision dated and finalized December 30, 1996, an Office hearing representative indicated that he was affirming the Office’s September 22, 1995 decision.  The Office hearing representative found that, in relying on the opinion of Dr. Price, the Office had only met its burden to terminate appellant’s compensation effective September 19, 1995.  Therefore, the Office hearing representative effectively modified the Office’s prior decision to reflect that the Office had met its burden to terminate appellant’s compensation effective September 19, 1995, but had not met its burden to terminate appellant’s compensation effective April 29, 1992.  By decision dated April 9, 1998, the Office affirmed the December 30, 1996 decision of the Office hearing representative.  By decision dated July 8, 1999, the Office denied appellant’s request for merit review.

            The only decision before the Board on this appeal is the Office’s July 8, 1999 decision denying appellant’s request for a review on the merits of its April 9, 1998 decision and other prior merit decisions.  Because more than one year has elapsed between the issuance of the Office’s April 9, 1998 decision and October 7, 1999, the date appellant filed her appeal with the Board, the Board lacks jurisdiction to review the Office’s April 9, 1998 decision and other prior merit decisions.[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 specific point of law; (2) advance a relevant legal argument not previously considered by the Office; or (3) submit relevant and pertinent new 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 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 her December 1997 reconsideration request, appellant submitted extensive statements in which she argued that the Office improperly terminated her compensation.  Appellant argued that the Office hearing representative had determined in his decision dated and finalized December 30, 1996 that the Office had not met its burden of proof to terminate appellant’s compensation effective April 29, 1992.[9]  She suggested that the Office had improperly failed to give proper consideration to the December 30, 1996 decision of the Office hearing representative by continuing to insist that she was not entitled to receive compensation benefits after April 29, 1992.

            The reopening of a case may be predicated solely on a legal premise not previously considered which has a reasonable color of validity.[10]  With respect to her above-detailed argument regarding the effect of the December 30, 1996 decision of the Office hearing representative, appellant has presented a new and relevant legal argument with a reasonable color of validity.[11]  Therefore, the refusal of the Office 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 case should be remanded to the Office for a merit review of appellant’s claim.  After any development deemed necessary, the Office should issue an appropriate decision.[12]

            The decision of the Office of Workers’ Compensation Programs dated July 8, 1999 is set aside and the case remanded to the Office for further proceedings consistent with this decision of the Board.

Dated,  Washington, DC

            April 16, 2001

 

 

                                                                                                            Michael J. Walsh

                                                                                                            Chairman

 

 

                                                                                                            David S. Gerson

                                                                                                            Member

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member