United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.V., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Tucson, AZ, Employer 

__________________________________________ 

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Docket No. 14-1293 

Issued: February 23, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On May 15, 2014 appellant filed a timely appeal from a February 28, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). 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.2

ISSUE 

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

review of the merits on the grounds that it was untimely filed and failed to demonstrate clear 

evidence of error. 

 1

 5 U.S.C. § 8101 et seq.

2

 The last merit decision issued in this case was the Board’s July 29, 2013 review of the claim. The decision 

issued by OWCP following the Board’s decision was a nonmerit decision. Therefore the Board’s jurisdiction is 

limited to review of only the February 28, 2014 nonmerit decision. See 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated April 19, 2012, the 

Board affirmed a June 16, 2011 OWCP merit decision finding that the medical evidence of 

record failed to establish that appellant’s left ankle and foot injuries were causally related to 

factors of her federal employment.3

 In a subsequent appeal, by decision dated July 29, 2013, the 

Board conducted a merit review and affirmed a February 1, 2013 OWCP decision, finding that 

appellant had failed to establish left ankle and bilateral foot injuries causally related to factors of 

her federal employment.4

 The findings and facts as set forth in the prior decisions are hereby 

incorporated by reference. The relevant facts are set forth herein. 

On March 18, 2011 appellant, then a 43-year-old customs and border protection (CBP) 

officer, filed an occupational disease claim (Form CA-2) alleging that she developed bilateral 

tendinitis in her feet as a result of standing due to her federal employment duties. In support of 

her claim, she submitted narrative statements and various medical reports. 

By decision dated July 29, 2013, the Board conducted a merit review and affirmed 

OWCP’s February 1, 2013 decision, finding that appellant failed to establish that she sustained 

left ankle and bilateral foot injuries causally related to factors of her federal employment.5

By letter dated December 2, 2013, appellant requested reconsideration. In support of her 

claim, she submitted a November 13, 2013 medical report from Dr. Ladislav Kuchar, a 

podiatrist. 

In his November 13, 2013 report, Dr. Kuchar reported that he first treated appellant on 

October 9, 2013 for ankle derangement and peroneus brevis tendinitis of both feet. He noted that 

appellant’s employment duties required her to work for long hours (8 to 16 hours daily for up to 

10 consecutive days) while standing and/or walking on uneven and hard surfaces, such as 

concrete while she worked as a CBP officer from January 1997 through September 2002. 

Dr. Kuchar stated that appellant’s job assignment and requirements were not necessarily the 

cause of her symptoms and diagnoses. However, long periods of walking and standing, 

especially on rigid surfaces which irritated the anatomical structures in question and the resulting 

diagnoses, were not inconsistent with the injury. Thus, Dr. Kuchar opined that appellant’s 

preexisting conditions were aggravated by her employment duties.6

 3

 Docket No. 11-1842 (issued April 19, 2012). 

4

 Docket No. 13-912 (issued July 29, 2013). The Board noted that, although the February 1, 2013 decision 

purported to be a nonmerit decision denying reconsideration, OWCP’s analysis of the evidence indicated that it 

reviewed the merits of appellant’s claim and thus, the Board exercised jurisdiction over the merits of the case. 

5 Id.

6

 Dr. Kuchar also stated that appellant was later diagnosed with rheumatoid arthritis. He noted that arthritis 

primarily affected the joints. As appellant’s complaints were not related to the joints, her arthritis could be ruled out 

as a preexisting condition which did not cause her symptoms. Dr. Kuchar stated that appellant’s chief complaint 

focused on the tendons and thus, the true cause of her symptoms resulted from the diagnosed tendinitis condition. 
3

By decision dated February 28, 2014, OWCP denied appellant’s reconsideration request 

as untimely filed and failing to establish clear evidence of error. It noted that her December 2, 

2013 reconsideration request was not made within one year of the last OWCP merit decision on 

June 16, 2011. OWCP further noted that the Board’s July 29, 2013 decision was final and not 

subject to review. 

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.7

 

The Board has held, however, that OWCP’s procedure manual8

 should be interpreted to mean 

that a right to reconsideration within one year accompanies any subsequent merit decision on the 

issues, including any merit decision by the Board.9

 

ANALYSIS 

The Board has reviewed the record on appeal and finds that the case must be remanded to 

OWCP for application of the appropriate standard of review because appellant’s request for 

reconsideration was timely submitted. 

An application for reconsideration must be received by OWCP within one year of the 

date of a merit review of the claim, including any merit review by the Board.10 The last merit 

decision of record was the Board’s July 29, 2013 decision.11 As appellant’s reconsideration 

request dated and received on December 2, 2013 was made within one year of the Board’s merit 

decision dated July 29, 2013, the Board concludes that the request was timely.12

OWCP’s February 28, 2014 decision erroneously noted the date of the last merit decision 

as June 16, 2011. It correctly noted that the Board’s July 29, 2013 merit decision was not subject 

to appeal, but failed to acknowledge that appellant had one year from the date of the last merit 

decision (July 29, 2013) to file a timely request for reconsideration with OWCP.13 In its 

February 28, 2014 decision denying appellant’s reconsideration request, OWCP applied the clear 

evidence of error legal standard. This standard is the appropriate standard only for cases in 

which a reconsideration request is untimely filed.14 Since OWCP erroneously reviewed the 

evidence submitted by appellant in support of her reconsideration request under the clear 

 7

 20 C.F.R. § 10.607(a). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011). 

9 See Mary E. Schipske, 43 ECAB 318 (1991); see also John W. O’Connor, 42 ECAB 797 (1991). 

10 Id. 

11 Supra note 4. 

12 J.N., Docket No. 12-1543 (issued February 12, 2013). 

13 Supra note 9. 

14 See Donna M. Campbell, 55 ECAB 241 (2004). 
4

evidence of error standard, the Board will remand the case to OWCP for application of the 

standard for reviewing a timely request for reconsideration as set forth at 20 C.F.R. 

§ 10.606(b)(2). 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the February 28, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further proceedings 

consistent with this opinion. 

Issued: February 23, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board