United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.S., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, NATIONAL DISASTER MEDICAL 

SERVICES, Bethesda, MD, Employer 

__________________________________________ 

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Docket No. 14-1994 

Issued: January 21, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 16, 2014 appellant, through his attorney, filed a timely appeal of an 

August 21, 2014 Office of Workers’ Compensation Programs’ (OWCP) nonmerit decision 

denying further merit review. The most recent merit decision was issued by the Board on 

April 24, 2013, which became final after 30 days of issuance and is not subject to further review. 

The Board lacks jurisdiction to review the merits of appellant’s case, pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d). 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board on appeal. A review of the facts follows. 

On July 31, 2011 appellant then a 64-year-old health technician/paramedic filed an occupational 

disease claim alleging that he had developed necrotizing fasciitis, clostriudium septicum due to 

factors of his federal employment. He stated that he returned from a two-week deployment in 

Haiti on January 30, 2010 and was diagnosed with strep throat. Appellant stated that 

periodically after that he developed multiple episodes of uncontrolled fevers and on July 2, 2011 

received a diagnosis of necrotizing fasciitis. 

In a report dated September 8, 2011, Dr. Robert E. Hruby, a Board-certified surgeon, 

stated that he first examined appellant on July 2, 2011 with necrotizing fasciitis and myonecrosis 

secondary to clostridium perfringens infection. He stated that appellant developed multisystem 

organ failure and required treatment for respiratory failure, renal failure, and overwhelming 

sepsis. Dr. Hruby opined, “From a clinical standpoint, the infectious etiology of his disease may 

be related to his deployment to Haiti although deployment occurred months before. The medical 

literature suggests that these types of unusual infections mainly remain dormant in the 

gastrointestinal tract for extended periods of time.” Dr. Hruby examined appellant on July 3, 

2011 and diagnosed necrotizing fasciitis with no clear source, possibly spontaneous, with 

multisystem organ failure. On July 22, 2011 he diagnosed clostridium perfringens necrotizing 

fasciitis involving the upper back, right flank, and right anterior abdominal wall. 

By decision dated November 1, 2011, OWCP denied appellant’s claim on the grounds 

that the medical evidence did not establish that his diagnosed condition was due to his 

employment. The Board reviewed his appeal in a decision dated November 5, 2012 and reissued 

on January 18, 20132

 and found that Dr. Hruby did not explain how or why he believed that 

appellant developed necrotizing fasciitis, and myonecrosis due to his deployment to Haiti. The 

Board found that appellant had not submitted sufficient medical opinion evidence to establish his 

occupational disease claim. The facts and circumstances of the case as set forth in the Board’s 

prior decision are adopted herein by reference. 

Counsel requested reconsideration on August 13, 2013. In a report dated December 1, 

2011, Dr. Hruby opined that clostridium perfringens was the etiology of his necrotizing 

myonecrosis. He stated that clostridium perfringens was endemic in Haiti. Dr. Hruby 

concluded: 

“The patient, after his deployment, developed an acute diarrheal illness followed 

by fulminant sepsis, and necrotizing myonecrosis. As you are also aware, these 

infections may lay dormant in carriers for extended periods of time. Based on 

these criteria, it is probable that this unusual life threatening infection from which 

[appellant] is recovering may be related to his deployment to Haiti.” 

 2

 Docket No. 12-1169 (issued November 5, 2012). The Board issued an Order reissuing this decision on 

January 18, 2013 due to nondelivery. See Docket No. 12-1169 (issued January 18, 2013). 
3

By decision dated September 17, 2013, OWCP denied modification of its prior decisions. 

It reviewed Dr. Hruby’s December 1, 2011 report and found that it continued to be speculative as 

to the relationship between appellant’s condition and his employment. The Board reviewed this 

decision on April 24, 20143

 and found that appellant had not submitted the necessary medical 

opinion evidence to establish his occupational disease claim. 

Counsel requested reconsideration on June 6, 2014 and submitted a brief dated 

April 24, 2014. In this brief, he argued that OWCP improperly relied on medical journal articles 

in denying appellant’s claim. Counsel described the health situation in Haiti prior to and 

following the earthquake on January 12, 2010. He opined that appellant was exposed to “an 

infectious disease laboratory for tropical illnesses.” Counsel argued that appellant was hundreds 

of times more likely to have contracted a severe clostridium infection in Haiti than in the United 

States. He stated that the record previously lacked the information regarding the epidemiological 

context of Haiti. Counsel also submitted medical publications regarding Haiti and the Haitian 

earthquake as well as necrotizing fasciitis and clostridium difficile. He further submitted 

diagnostic studies from July 2011. 

By decision dated August 21, 2014, OWCP declined to reopen appellant’s claim for 

consideration of the merits. It found that the opinion on causal relationship between his 

diagnosed condition and his employment exposure must be provided by a physician, rather than 

by counsel. OWCP further found that the medical evidence submitted did not contain any 

medical opinion evidence. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.4 

Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review 

of the merits of the claim by submitting in writing an application for reconsideration which sets 

forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific 

point of law; or advances a relevant legal argument not previously considered by OWCP; or 

includes relevant and pertinent new evidence not previously considered by OWCP.5

 Section 

10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but 

does meet at least one of these three requirements, OWCP will deny the application for review 

without reopening the case for a review on the merits.6

ANALYSIS 

In support of his request for reconsideration, counsel submitted a brief analyzing the 

relative health situations in the United States and in Haiti at the time of appellant’s visit. He 

 3

 Docket No. 14-203 (issued April 24, 2014). 

4

 5 U.S.C. §§ 8101-8193, 8128(a). 

5

 20 C.F.R. § 10.606. 

6 Id. at § 10.608. 
4

opined that appellant was hundreds of times more likely to have developed his infections in Haiti 

than in the United States. As noted by OWCP, in order to establish appellant’s occupational 

disease claim, he must submit medical opinion evidence that his diagnosed conditions were the 

result of employment exposures. The opinion of counsel does not constitute medical evidence7

and thus is not relevant to the reasons that appellant’s claim was denied, the lack of medical 

reasoning explaining why and how an exposure to conditions in Haiti in January 2010 would 

result in his diagnosed conditions of necrotizing fasciitis on July 2, 2011. This brief is not 

relevant and pertinent new evidence. Furthermore, counsel’s brief does not offer arguments that 

show that OWCP erroneously applied or interpreted a specific point of law nor does it advance a 

relevant legal argument not previously considered by OWCP. 

The Board further finds that the medical publications are not relevant to the issue for 

which resulted in the denial of appellant’s claim. These publications are of general application 

and not determinative regarding whether specific conditions are causally related to particular 

employment factors in a claim.8 These publications were not reviewed by a physician and 

therefore lack any opinion rendering them specific to appellant’s claim. Finally, the medical test 

results do not contain any mention of the underlying cause of the conditions demonstrated and 

are not relevant and pertinent new evidence supporting appellant’s occupational disease claim. 

CONCLUSION 

The Board finds that appellant has not met any of the criteria warranting a merit review. 

OWCP, therefore, properly declined to reopen his claim for consideration of the merits. 

 7

 A lay person is not competent to render a medical opinion. See James A. Long, 40 ECAB 538 (1989). 

8 See P.J., Docket No. 14-498 (issued May 19, 2014); and Gaetan F. Valenza, 35 ECAB 763 (1984). 
5

ORDER 

IT IS HEREBY ORDERED THAT the August 21, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board