United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.L., Appellant 

and 

DEPARTMENT OF ENERGY, NATIONAL 

NUCLEAR SECURITY ADMINISTRATION, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-1904 

Issued: May 18, 2015 

Appearances: Case Submitted on the Record

Stephen Domenic Scavuzzo, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 26, 2014 appellant, through counsel, filed a timely appeal from an April 24, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed between the last merit decision, dated August 5, 2013, and the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant’s counsel contends that the record establishes that appellant timely 

filed his occupational disease claim. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 7, 2012 appellant, then a 48-year-old budget analyst, filed a Form CA-2 

claim for occupational disease, alleging that on May 4, 2009 he first became aware of his 

nonischemic cardiomyopathy and lymphoma condition. He noted that he also became aware that 

the condition was due to his work on May 4, 2009. On the back of the form, appellant’s 

supervisor stated that appellant had abandoned his position and was removed from employment 

on April 29, 2012 due to inability to perform his work duties. 

In a December 21, 2011 Family and Medical Leave Act (FMLA) health care provider 

form, appellant’s treating physician, Dr. David C. Pearle, a Board-certified cardiologist, found 

appellant totally disabled from performing his job duties as they caused emotional and physical 

stress. Diagnoses included Hodgkin’s lymphoma and cardiomyopathy. Dr. Pearle related that 

appellant’s heart condition began in May 2009 and that he had treated appellant from May 2009 

to the present. He found that appellant’s heart function/failure was exacerbated by his 

employment. 

On October 2, 2012 appellant claimed wage-loss compensation for the period 

December 12, 2011 to the present. On the form he noted the date of his injury as November 28, 

2011 and his last workday as April 29, 2012. 

In a statement dated November 7, 2012, appellant related that, as a budget analyst, his job 

required that funding be appropriately aligned to field and site locations. It also required that he 

meet deadlines on requests for financial data. Appellant claimed that this caused considerable 

pressure and stress. He alleged that working on budgets which were managed under 

congressional continuing resolutions added to the stress of his position. While under these 

conditions, appellant was asked by directors and program managers to move or realign funding, 

which further increased his stress level. He also experienced stress from being routinely 

contacted by employees from other departments, who demanded “that their funding be 

obligated.” Appellant related that the constant stress impacted his ability to sleep, as he was only 

able to sleep three or four hours a night and woke up exhausted. 

As a result of all this stress from performing the duties of his position, appellant found 

himself unable to breathe on May 4, 2009 and was admitted to Georgetown University Hospital. 

During his hospitalization, he was diagnosed with a stroke and nonischemic cardiomyopathy. 

Appellant related that another episode of his condition occurred on November 28, 2011 

when he was unable to sleep due to worrying about his job. He awakened with shortness of 

breath and could not get back to sleep. The following day appellant saw his physician who 

returned him to work. A few days later, he underwent additional heart tests and was advised that 

he needed a left ventricular assist device because his heart was damaged. 

In a November 9, 2012 work capacity evaluation (Form OWCP-5b), Dr. Cynthia 

Crawford-Green, a treating Board-certified internist, diagnosed nonischemic cardiomyopathy. 

Although she found appellant unable to work at this date-of-injury job, she found him capable of 

working eight hours per day with restrictions. Dr. Crawford-Green opined that a deadlinedriven, high-paced job significantly aggravated his cardiomyopathy. 
3

By letter dated February 1, 2013, OWCP informed appellant that the evidence of record 

was insufficient to establish his claim. Specifically, it advised that the evidence failed to show 

that he had timely filed his claim. Appellant was advised as to the medical and factual evidence 

to submit and given 30 days to provide this information. 

In a February 20, 2013 report, Dr. Crawford-Green provided a medical history with 

respect to treatment for appellant’s Hodgkin’s lymphoma and heart condition. She noted that 

appellant’s cardiologist had attributed his cardiomyopathy in 2009 to the Adriamycin therapy 

which appellant had received for treatment of his 2007 Hodgkin’s lymphoma. Dr. CrawfordGreen noted that Adriamycin was “a known potentially cardiotoxic drug.” She related that 

appellant’s symptoms gradually worsened such that he received an implantable cardioverter 

device on August 5, 2010. Appellant was believed to have had a transient ischemic attack (TIA) 

in June 2011 (treated in the emergency room) at a time when he was under extreme stress at 

work. A November 30, 2011 myocardial perfusion scan revealed severe left ventricular systolic 

function deterioration and that on December 6, 2011 he underwent diagnostic cardiac 

catheterization which revealed no significant epicardial coronary artery disease but severe left 

ventricular dysfunction ejection fraction measured at 20 percent. Dr. Crawford-Green noted that, 

at that time, appellant was advised that job stress was exacerbating his heart failure and he was 

advised not to return to work. 

Dr. Crawford-Green noted that appellant provided to the employing establishment a 

December 22, 2011 FMLA form, completed by appellant’s cardiologist, which attributed the 

exacerbation of appellant’s heart condition to his job stress. She noted that, when appellant 

presented to her care on August 23, 2012, he showed impressive improvement. Dr. CrawfordGreen stated that “[n]early one year after he presented with overt pulmonary edema well on 

[appellant’s] way to a left ventricular assist device and or cardiac transplantation, he is 

symptomatically markedly improved with very good exercise tolerance. It also conclusively 

demonstrates that his high stress work environment contributed to and exacerbated his severe 

heart failure.” 

On March 1, 2013 appellant completed OWCP’s development questionnaire. He stated 

that he first exhibited symptoms of his condition on May 9, 2009 when he was admitted to the 

emergency room after having difficulty walking from the Metro to work and was diagnosed with 

heart failure. In August 2010, a defibrillator was implanted in appellant’s chest. During the next 

two years, following the implantation of the defibrillator, he continued experiencing heart racing, 

chest tightness, and difficulty breathing at work. On November 28, 2011 the symptoms 

culminated in a diagnosis of decompensated congestive heart failure. Appellant alleged that his 

heart condition was aggravated by the performance of his stressful work duties, as well as 

worrying about his work. He noted his disagreement with OWCP’s statement that his claim was 

untimely as he continued to experience heart problems while working and was not aware of the 

connection to his employment until his second cardiac catheterization on December 8, 2011.2

 

Appellant submitted a copy of his medical records. 

 2

 The record reflects that this procedure actually took place on December 6, 2011. 
4

Appellant submitted several reports from Dr. Pearle. In a December 6, 2011 report, 

Dr. Pearle noted performing a repeat outpatient cardiac catheterization that day, which 

demonstrated a left ventricular ejection fraction of 20 percent to 25 percent. He noted that 

“[appellant] is clearly under considerable job stress at present which is affecting his health.” 

In a further, more detailed report dated May 1, 2012, Dr. Pearle provided a history of 

appellant’s heart condition. He explained that appellant had initially been evaluated in 

May 2009 with heart failure and a TIA. Dr. Pearle performed a cardiac catheterization which 

demonstrated mild coronary disease. Appellant was diagnosed with cardiomyopathy which was 

determined to be secondary to Adriamycin, which he was receiving for Hodgkin’s lymphoma in 

2007. Dr. Pearle noted that, due to the failure of the left ventricular ejection fraction to improve 

significantly, he implanted a cardioverter defibrillator on August 5, 2010. He noted that 

appellant again presented in November 2011 with significantly increased symptoms. At that 

time Dr. Pearle noted: “I have restricted [appellant’s] physical activity, limiting maximal 

physical exertion, working in conditions of unusal heat or cold, and limitations in stress, which is 

clearly associated with his job in recent years.” He later performed a repeat catheterization on 

December 6, 2011, which demonstrated further failure in his left ventricular ejection fraction, 

and he suggested that appellant consider retiring. 

On March 5, 2013 OWCP received a March 28, 2012 removal letter from the employing 

establishment. It noted that appellant had not performed the duties of his position since 

December 1, 2011 and that his treating physician, on an FMLA request form, indicated that he 

was disabled due to medical and emotional stress and due to his medical condition. Based on his 

inability to perform the duties of his position, the employing establishment removed him from 

his position in order to promote the efficiency of the organization. 

By decision dated March 8, 2013, OWCP denied appellant’s claim as he had failed to 

timely file his claim, which OWCP characterized as a traumatic injury. It stated that, under 5 

U.S.C. § 8122, he should have filed his claim within three years of the date of his injury or 

submit evidence that his supervisor had actual knowledge of the connection between the alleged 

condition and his employment duties within 30 days of the date of injury. OWCP found that, as 

appellant had noted on the CA-2 form that he first became aware of the disease or illness and 

first realized the disease or illness was caused or aggravated by his employment on May 4, 2009, 

and as he had not filed his claim until November 7, 2012, his claim was untimely filed. It further 

noted that in October 2007 appellant had received chemotherapy treatment for a diagnosis of 

Hodgkin’s lymphoma. OWCP had reviewed Dr. Crawford-Green’s February 20, 2013 report 

and noted that she had stated her belief that his condition, cardiomyopathy, was secondary to the 

treatment he was receiving for his lymphoma. 

On May 15, 2013 appellant requested reconsideration and, in support of his request, 

submitted a May 14, 2013 report by Dr. Crawford-Green, who reported that it was not until 

December 2011 that he had been notified that the stress from his employment duties exacerbated 

his heart condition and heart failure. Dr. Crawford-Green contradicted OWCP’s characterization 

of her previous report that she had believed that his cardiomyopathy was secondary to the 

treatment he had received for his lymphoma. In fact, she argued, “my position is exactly the 

opposite of that.” Dr. Crawford-Green noted that her earlier report had stated: “[i]t also 
5

conclusively demonstrates that [appellant’s] high stress work environment contributed to or 

exacerbated his severe heart failure.” 

By decision dated August 5, 2013, OWCP denied modification. It noted that appellant 

had filed an occupational disease claim on November 7, 2012 noting that on May 4, 2009 he first 

became aware that his employment duties had caused or aggravated his nonischemic 

cardiomyopathy and lymphoma. OWCP listed the new evidence received, but found that it 

provided no additional dates to support the date he first realized the disease or illness was caused 

or aggravated by his employment. It noted that the May 4, 2009 date had first been provided by 

appellant on the CA-2 form and advised that it could not “infer what your date of injury should 

be based on.” OWCP also found that he failed to submit any “clear cut evidence” showing error 

on the part of it in finding that his claim had been untimely filed. It reiterated the requirements 

for timely filing a claim under 5 U.S.C. § 8122. 

On February 11, 2014 OWCP received appellant’s request for reconsideration along with 

additional evidence. In a February 8, 2014 statement, appellant related that on his original CA-2 

form he had incorrectly identified the date when he first realized his employment had aggravated 

or caused his illness. He provided a corrected Form CA-2 with a revised date of 

December 6, 2011. Appellant stated that it was not until Dr. Pearle told him on December 6, 

2011 that he was disabled from performing the duties of his job that he became aware of the 

causal connection between his condition and his employment. He contended that he would have 

quit his job in May 2009 if he had been informed then that his work exacerbated or contributed 

to his diagnosed heart condition. 

By decision dated April 24, 2014, OWCP denied reconsideration. It found that the 

evidence submitted by appellant failed to show that it had erroneously interpreted or applied a 

point of law. OWCP also failed to advance a legal argument not previously considered. It noted 

that none of the evidence submitted established that appellant timely filed his claim as he filed 

his occupational disease claim on November 7, 2012, which was more than three years after 

May 4, 2009, the date he identified as first becoming aware that his condition had been caused or 

aggravated by his employment. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously 

considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

 3 Id. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application. 

4

 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 
6

of the date of that decision.5

 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.6

 

ANALYSIS 

The Board finds that OWCP improperly denied appellant’s claim without reviewing the 

merits. 

By decision dated April 24, 2014, OWCP denied a review of the merits of appellant’s 

request for reconsideration. The underlying issue was the timeliness of his claim. On 

reconsideration appellant provided new evidence to establish that his claim had been timely filed. 

He provided a revised Form CA-2 reflecting a new date of December 6, 2011 as to when he first 

realized the connection between his condition and his employment. Appellant noted that he had 

previously incorrectly identified May 4, 2009 as the date that he first became aware of the causal 

connection between his diagnosed condition and his employment on his original CA-2 form. He 

further clarified that it was not until December 6, 2011, following his second cardiac 

catheterization, when Dr. Pearle informed him that his disability was due to his job stress. 

Appellant noted that he had been told that on May 4, 2009, he would have quit his job then. 

The Board finds that OWCP improperly found that appellant’s request for 

reconsideration did not warrant further review of the merits of his claim. The Board finds that 

the submission of the revised CA-2 form, with an explanation as to why he had incorrectly 

identified May 4, 2009 on his original CA-2 form, is new evidence warranting a merit review. 

The standard for reopening a claim for merit review does not require the claimant to 

submit all evidence that 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 OWCP. In this 

case, as noted above, appellant has submitted new, relevant, and pertinent evidence not 

previously considered by OWCP.7

 Therefore, the case shall be remanded for a review of the 

merits. After such further development as is deemed necessary, OWCP shall issue a de novo

decision. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for reconsideration 

under 5 U.S.C. § 8128(a). 

 5 Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

6 Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).

7 See Charles A. Jackson, 53 ECAB 671 (2002), Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. 

Tschantz, 39 ECAB 1382 (1988). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 24, 2014 is remanded for further proceedings consistent 

with the above opinion. 

Issued: May 18, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board