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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

__________________________________________   LAVERNA S. PUGH, Appellant   and   DEPARTMENT OF THE AIR FORCE, SHEPPARD AIR FORCE BASE, TX, Employer __________________________________________

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Docket No. 04-1689 Issued: December 9, 2004

Appearances:                                                                          Case Submitted on the Record

Laverna S. Pugh, pro se

Office of Solicitor, for the Director

 

 

DECISION AND ORDER

 

Before:

COLLEEN DUFFY KIKO, Member

DAVID S. GERSON, Alternate Member

MICHAEL E. GROOM, Alternate Member

 

 

JURISDICTION

 

On June 24, 2004 appellant filed a timely appeal of the June 9, 2004 nonmerit decision of the Office of Workers’ Compensation Programs, which denied her April 8, 2004 request for reconsideration.  Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the Office’s June 9, 2004 nonmerit decision.[1]

ISSUE

 

The issue is whether the Office properly denied appellant’s request for a review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

 

This case has previously been on appeal before the Board.  Appellant, a 73-year-old former secretary, sustained a traumatic injury to her left knee on December 15, 1995 when she stumbled down a stairway at work.  The Office accepted her claim for left knee strain and lateral meniscus tear of the left knee.  On May 30, 1997 appellant accepted a permanent, light-duty position as an office automation clerk, with no decrease in pay.  She resigned from her position on August 22, 1997.[2]  In a decision dated November 17, 1997, the Office determined that appellant’s actual earnings as an office automation clerk fairly and reasonably represented her wage-earning capacity and that she had no loss of wage-earning capacity.  The Board affirmed the Office’s loss of wage-earning capacity determination on July 3, 2002.[3]  In a subsequent appeal the Board remanded the case to the Office to address appellant’s request for modification of the Office’s November 17, 1997 wage-earning capacity determination.[4]  Thereafter, the Office denied modification by decisions dated April 17 and July 25, 2003.  In a decision dated November 18, 2003, the Board affirmed the Office’s July 25, 2003 decision.[5]  Appellant requested reconsideration before the Board, which denied her request by order dated March 30, 2004.

 

On April  8, 2004 appellant requested reconsideration before the Office.  By decision dated June 9, 2004, the Office denied appellant’s request for reconsideration.

 

LEGAL PRECEDENT

 

Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the discretion to reopen a case for review on the merits.[6]  Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for reconsideration, including all supporting documents, must set forth arguments and contain evidence that either:  (i) shows that the Office erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new evidence not previously considered by the Office.[7]  Section 10.608(b) provides that when an application for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration without reopening the case for a review on the merits.[8]

ANALYSIS

 

            Appellant’s April  8, 2004 request for reconsideration neither alleged nor demonstrated that the Office erroneously applied or interpreted a specific point of law.  Additionally, appellant did not advance a relevant legal argument not previously considered by the Office.  Appellant referenced various laws and regulations pertaining to age discrimination in employment.  This information, however, is not relevant to the issue of whether she has demonstrated a basis for modifying the Office’s November 17, 1997 wage-earning capacity determination.[9]  Consequently, appellant is not entitled to a review of the merits of her claim based on the first and second above-noted requirements under section 10.606(b)(2).[10]  With respect to the third requirement, the information submitted does not constitute relevant and pertinent new evidence not previously considered by the Office.  Appellant did not submit any additional evidence with her April 8, 2004 request for reconsideration.  Accordingly, she is not entitled to a review of the merits of her claim based on the third requirement under section 10.606(b)(2).[11]  As appellant is not entitled to a review of the merits of her claim pursuant to any of the three requirements under section 10.606(b)(2), the Office properly denied the April 8, 2004 request for reconsideration.

 

CONCLUSION

 

The Board finds that the Office properly denied appellant’s request for a review of the merits of her claim.

ORDER

 

IT IS HEREBY ORDERED THAT the June 9, 2004 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: December 9, 2004

Washington, DC

 

 

 

 

                                                                                                            Colleen Duffy Kiko

                                                                                                            Member

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member