United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

FEDERAL AVIATION ADMINISTRATION, 

DEPARTMENT OF TRANSPORTATION, 

Chamblee, GA, Employer 

__________________________________________ 

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Docket No. 15-1530 

Issued: January 14, 2016 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 9, 2015 appellant, through counsel, filed a timely appeal from the January 26, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated November 10, 2011 to 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 over the merits of this case. 

 1

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether OWCP properly denied appellant’s July 28, 2014 request for 

reconsideration finding that it was untimely filed and failed to establish clear evidence of error. 

FACTUAL HISTORY 

On May 20, 2010 appellant, then a 31-year-old airway transportation systems specialist, 

filed a claim for traumatic injury (Form CA-1) alleging that he was injured on May 18, 2010 in 

the performance of duty when he fell to the ground and braced himself with his right arm due to 

a blast of jet exhaust. He did not stop work. OWCP accepted (under File No. xxxxxx308) a 

sprain of the right wrist, not otherwise specified. It later accepted post-traumatic stress disorder 

and aggravation of osteoarthritis, localized, primarily involving the hand/wrist. 

Appellant later experienced a similar incident on February 15, 2011, when a plane was 

coming down the taxiway while he was repairing something at the 1,000 foot bar, which is 30 to 

40 feet from the end of the runway. The plane was heading his way and would have ended up at 

the end of the runway ready to take off, but appellant left before it reached him. Appellant stated 

that he had previously asked that the runway be shut down to air traffic until he could get the 

item fixed. He advised that he could not concentrate after the February 15, 2011 incident. 

Appellant claimed that he had been able to recover from the May 18, 2010 employment injury 

and was able to perform his job, but the February 15, 2011 incident pushed him over the edge, 

and he could not perform his job anymore. 

On June 24, 2011 appellant filed a series of claims for wage-loss compensation beginning 

March 18, 2011 due to his accepted May 18, 2010 injury. 

In a decision dated November 10, 2011, OWCP denied appellant’s claim for wage-loss 

compensation. It noted that appellant had undergone training in Oklahoma City, Oklahoma, 

from August to September, 2010, and in Macon, Georgia, in November 2010. Appellant stated 

that he felt his condition had improved since he had been away from the airfield in training. 

OWCP denied the compensation claims from March 18, 2011 to the present because the 

disability was due to the intervening February 15, 2011 incident and not due to the May 18, 2010 

accepted incident. OWCP encouraged appellant to file a new claim for injury for the work 

events that occurred on February 15, 2011. 

On July 28, 2014 appellant filed a request for reconsideration of the November 10, 2011 

denial of his claims for disability. He pointed to medical evidence supporting that he fit the 

criteria for post-traumatic stress disorder, that he was temporarily totally disabled beginning 

March 18, 2011, and that he sustained this post-traumatic stress disorder as a direct result of the 

May 18, 2010 work incident. Appellant argued that OWCP made a medical conclusion on a 

psychiatric issue when it observed that a new injury had occurred on February 15, 2011. He 

further argued that OWCP’s statement that he did not stop working entirely until after the 

February 15, 2011 incident was completely false. Appellant claimed that he worked several days 

after February 15, 2011, and that his last day of work was not until March 18, 2011. He noted 

his doctor’s observation that the initial traumatic experience on May 18, 2010 was “worsened” 

by further exposure to dangerous work conditions on February 15, 2011. Appellant claimed this 
3

signified that the condition already existed and stated, “It was and remains my contention that 

there was no reason for the District Office to request that I turn in a new Form CA-2 regarding 

my PTSD since it was already an accepted condition under this case file (xxxxxx308).” 

Appellant stated that he had filed a new occupational disease claim (Form CA-2) under 

File No xxxxxx981), but on April 13, 2012 OWCP had denied the claim because he had not 

provided sufficient evidence to establish an emotional condition as a result of factors of his 

employment. He argued that OWCP should never have asked him to claim that his posttraumatic stress disorder began on February 15, 2011. 

Appellant added that he was able to return to work with restrictions after July 13, 2011, 

but the employing establishment had no suitable work. He submitted copies of letters dated 

July 2 and August 30, 2012 from his manager, who requested current medical information as to 

his work status, warned about excessive absences, and informed appellant of his options, as he 

had not supplied the information requested. 

In a decision dated January 26, 2015, OWCP denied appellant’s reconsideration request, 

finding that it was untimely and failed to present clear evidence of error. 

On appeal counsel presents arguments not made in the July 28, 2014 reconsideration 

request to support that OWCP issued its November 10, 2011 decision in error and without 

following proper procedure. In particular, she argues that OWCP erred in denying payments for 

future periods. This was a clear procedural error, counsel explains, citing OWCP’s FECA 

procedure manual. Counsel argues that appellant was eligible for compensation benefits after 

March 4, 2011. She contends that appellant should have been placed on the periodic rolls 

because the sole reason he did not return to work after July 13, 2011 was that the employing 

establishment could not accommodate his restrictions. Counsel argues that OWCP should have 

further developed the medical evidence on the issue of appellant’s work capacity. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

 (1) end, decrease, or increase the compensation awarded; or 

 (2) award compensation previously refused or discontinued.”2

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an 

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

 2

 5 U.S.C. § 8128(a). 
4

OWCP’s decision for which review is sought. OWCP will consider an untimely application only 

if the application demonstrates clear evidence of error on the part of OWCP in its most recent 

merit decision. The application must establish, on its face, that such decision was erroneous.3

The term “clear evidence of error” is intended to represent a difficult standard.4

 If clear 

evidence of error has not been presented, OWCP should deny the application by letter decision, 

which includes a brief evaluation of the evidence submitted and a finding made that clear 

evidence of error has not been shown.5

ANALYSIS 

OWCP received appellant’s reconsideration request on July 28, 2014. This was more 

than one calendar year after the date of the most recent merit decision in his case, namely, 

OWCP’s November 10, 2011 decision denying his claim for wage-loss compensation beginning 

March 18, 2011. Appellant’s reconsideration request is therefore untimely. The question for 

determination is whether that request presented clear evidence of error in OWCP’s 

November 10, 2011 decision. 

Appellant’s reconsideration request does not establish, on its face, that OWCP’s 

November 10, 2011 decision was erroneous. OWCP denied his claim for wage-loss 

compensation beginning March 18, 2011 because it appeared from both the medical evidence 

and his account of events that the disability for which he claimed compensation was attributed to 

his exposure to a new work incident on February 15, 2011, and not solely because of what had 

happened on May 18, 2010. 

As OWCP regulations state, a notice of recurrence should not be filed when a new event 

contributing to an already existing occupational disease has occurred. In these instances, the 

employee should file a Form CA-1 or Form CA-2.6

 FECA procedures provide that a recurrence 

of disability does not include a work stoppage caused by a condition which results from a new 

injury or by renewed exposure to the causative agent of a previously suffered occupational 

disease. If a new work-related injury or exposure occurs, a Form CA-1 or Form CA-2 should be 

completed accordingly.7

 Careful attention should be given as to whether the claim is for a 

recurrence of the original injury, or if a new injury has occurred.8

Appellant was not claiming an inability to work caused by a spontaneous change in a 

medical condition that had resulted from a previous injury or illness without an intervening 

 3

 20 C.F.R. § 10.607. 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011). 

5 Id. at Chapter 2.1602.5.b. 

6

 20 C.F.R. § 10.104(a). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.c(5) (June 2013). 

8 Id. at Chapter 2.1500.6.b. 
5

injury or exposure to the work environment that caused the illness.9 As appellant had explained, 

he was able to manage his May 18, 2010 employment conditions and was able to perform his job 

until the February 15, 2011 incident pushed him over the edge. 

In OWCP’s November 10, 2011 decision denying his claim for wage-loss compensation 

it did not dispute that he sustained a post-traumatic stress disorder as a direct result of the 

May 18, 2010 work incident. It formally notified him earlier that his original injury claim was 

updated to include post-traumatic stress disorder. The question raised by his multiple claims for 

wage-loss compensation in 2011, however, related to his ability to work due to the accepted 

May 28, 2010 employment injury. Appellant attributed his disability, however, to the new 

incident of February 15, 2011 which allegedly acted as a trigger exacerbating his existing, workrelated post-traumatic stress disorder and causing an inability to work beginning March 18, 2011. 

The February 15, 2011 incident, however, has not been accepted. 

OWCP did not conclude that appellant suffered a new injury on February 15, 2011. It 

simply acknowledged that a new work incident occurred on February 15, 2011, which raised a 

question whether appellant sustained a new injury, namely, an aggravation of his post-traumatic 

stress disorder. 

OWCP correctly noted that appellant did not stop working entirely until after the 

February 15, 2011 work incident. Appellant did not stop working until March 18, 2011. The 

accepted May 18, 2010 work injury did not cause appellant to stop work. Appellant was able to 

manage his May 18, 2010 employment injuries and was able to perform his job for 

approximately one month after the February 15, 2011 incident. 

As appellant’s reconsideration request did not, on its face, establish that OWCP’s 

November 10, 2011 decision was erroneous, the Board finds that he failed to present clear 

evidence of error. Accordingly, the Board finds that OWCP properly denied his untimely 

reconsideration request and will affirm OWCP’s January 26, 2015 decision. 

Counsel offers arguments on appeal that did not appear in appellant’s reconsideration 

request. The Board, however, must review the reconsideration request as it appeared before 

OWCP at the time of its January 26, 2015 decision. The Board may not consider new arguments 

presented to rehabilitate or perfect appellant’s July 24, 2014 request.10

CONCLUSION 

The Board finds that OWCP properly denied appellant’s July 28, 2014 reconsideration 

request as it was untimely filed and failed to establish clear evidence of error. 

 9

 20 C.F.R. § 10.5(x) (definition of recurrence). 

10 20 C.F.R. § 501.2(c)(1) (the Board’s review of a case is limited to the evidence in the case record that was 

before OWCP at the time of its final decision). 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 26, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 14, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board