United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.V., widow of P.V., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

U.S. FOREST SERVICE, Bonners Ferry, ID, 

Employer 

__________________________________________ 

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Docket No. 15-0083 

Issued: October 13, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 15, 2014, appellant timely appealed May 22, July 2, and October 9, 2014 

nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days elapsed from OWCP’s last merit decision dated May 15, 2013, 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 the claim. 

ISSUES 

The issues are: (1) whether OWCP properly declined to reopen appellant’s case for merit 

review under 5 U.S.C. § 8128(a) on May 22, 2014; and (2) whether OWCP properly denied 

appellant’s requests for reconsideration on July 2 and October 9, 2014 as untimely filed and 

failing to demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 23, 2009 appellant filed a survivor’s claim (Form CA-5) alleging that her 

husband’s, the employee’s, March 11, 2009 death was the result of his employment-related 

asthma. The employee was hospitalized beginning March 7, 2009 following a syncopal episode 

and marked bradycardia with apparent atrial fibrillation. He had a history of biventricular 

congestive heart failure and chronic renal failure, and was initially referred to the emergency 

room (ER) because of his kidney disorder. Around noon on March 11, 2009, the employee had 

an episode of bradycardia and then flat-lined (asystole). In accordance with his prior 

instructions, hospital personnel made no attempt to resuscitate the employee. His death 

certificate listed the immediate cause of death as diffuse amyloidosis with associated heart and 

renal failure. Additionally, the death certificate identified congestive heart failure and reactive 

airways dysfunction syndrome as other significant conditions contributing to death, but not 

resulting in the underlying cause. A March 17, 2009 autopsy revealed, inter alia, AL-type 

amyloid deposits. There was evidence of amyloidosis effecting the heart, kidneys, lungs, spleen, 

liver, and adrenals. 

Between 1981 and 1987, the employee worked as a forestry technician, which was a 

primary firefighter position.2

 He had an accepted occupational disease claim for smoke-induced 

asthma under OWCP File No. xxxxxx834, which arose on or about June 23, 1986. The 

employee last worked for the employing establishment in September 1987. In March 1996, 

OWCP accepted, under the present claim, permanent aggravation of smoke-induced asthma, 

assigned File No. xxxxxx268 with a September 4, 1987 date of injury.3

 The employee had been 

receiving FECA wage-loss compensation benefits until his death on March 11, 2009 at the age of 

64. 

Appellant’s claim for survivor benefits (Form CA-5) was accompanied by a 

September 22, 2009 report from Dr. Paul J. Marks, a Board-certified internist with subspecialties 

in pulmonary disease and critical care medicine. Dr. Marks indicated that the direct cause of 

death was diffuse amyloidosis leading to heart and renal failure. He also noted that occupational 

asthma was a contributory cause of death. Dr. Marks explained that while the employee’s death 

was primarily due to sequelae of amyloidosis, his occupational asthma “probably” aggravated his 

heart failure to a degree. 

In an April 16, 2010 report, Dr. Marks indicated that the employee had been under his 

care from April 2007 until his death in March 2009. He had treated him for his employmentrelated asthma. Dr. Marks noted that in November 2008, the employee began to have increased 

dyspnea, wheezing, and ankle edema. When he returned in December 2008, Dr. Marks thought 

the employee was developing congestive heart failure and renal dysfunction. He was 

subsequently evaluated by a cardiologist and nephrologist. Dr. Marks further noted that on 

March 7, 2009, the employee presented in heart failure and renal failure. And while being 

 2

 The employee was a seasonal/temporary employee who worked approximately eight months each year over a 

seven-year period. 

3

 The two employment-related asthma claims have been combined, with the current claim (xxxxxx268) 

designated the master file. 
3

treated for those problems, he was being evaluated for suspected amyloidosis, which was later 

confirmed by autopsy. Dr. Marks indicated that the employee had an episode of bradycardia that 

deteriorated to asystole and death. He reiterated that the employee’s death was primarily due to 

the sequelae of amyloidosis, which caused congestive heart failure, and also acute renal failure. 

Dr. Marks explained that these were factors unrelated to his employment. However, he further 

indicated that the employee’s occupational asthma probably -- more likely than not -- caused 

some degree of pulmonary hypertension and cor pulmonale, which contributed to his heart 

failure and arrhythmias. And as such, the employee’s occupational asthma was a contributing 

factor to his death. 

OWCP referred the case for a second opinion by Dr. Maroun M. Tawk, a Board-certified 

internist with subspecialties in pulmonary disease, critical care medicine, and sleep medicine. In 

an August 3, 2010 report, Dr. Tawk indicated there was no relationship between the employee’s 

death and his accepted condition. He noted that amyloidosis, renal failure, and congestive heart 

failure were not causally related to the employee’s smoke-induced asthma. Dr. Tawk explained 

that the employee’s death was most likely related to amyloidosis, not occupational asthma. He 

further explained that the medical literature did not establish a relationship between long-term 

asthma and secondary amyloidosis.4

In a November 23, 2010 supplemental report, Dr. Tawk noted that the employee had a 

history of occupational asthma and had last worked as a firefighter in 1987. He further noted 

that the employee’s death was mostly related to systemic amyloidosis, and there was no evidence 

that he died from an asthma attack. According to Dr. Tawk, the employee’s death was unrelated 

to his accepted condition. He explained that the autopsy showed amyloid deposition in the 

interstitium and the vascular system, but no significant pathology at the level of the airways. 

Dr. Tawk further explained that asthma was an airways disease, not an interstitial disease. 

Therefore, he found the employee’s death was unrelated to his history of asthma or occupational 

asthma. Dr. Tawk reiterated that the medical literature did not reveal any clear relationship 

between occupational asthma and systemic amyloidosis. 

In a February 17, 2011 decision, OWCP denied appellant’s claim for survivor’s benefits 

based on Dr. Tawk’s opinion. 

Appellant timely requested reconsideration and submitted additional evidence. 

In a December 9, 2009 report, Dr. James E. Lies, a Board-certified cardiologist, noted 

that he treated the employee during the final months of his life. Dr. Lies indicated that the 

 4

 Dr. Tawk described the three major subtypes of amyloidosis, which include primary (AL), secondary (AA), and 

hereditary/familial. He explained that primary amyloidosis -- a plasma disorder that affects the bone marrow -- was 

the most common form and was not associated with other diseases. However, Dr. Tawk noted that primary 

amyloidosis may also occur in association with multiple myeloma. With regard to secondary amyloidosis, he 

explained that this type occurred in association with chronic inflammatory or infectious diseases, such as rheumatoid 

arthritis, tuberculosis, osteomyelitis, and Hodgkin’s disease. Dr. Tawk further explained that most patients with 

secondary amyloidosis have had the related inflammatory disease for more than a decade. Lastly, he noted that 

hereditary/familial amyloidosis was the only inherited form of the disease and was rare. Dr. Tawk further noted that 

this type of amyloidosis occurred in most ethnic groups, and each family had a distinctive pattern of symptoms and 

organ involvement. 
4

employee had severe biventricular heart failure and renal failure, which was related to his 

amyloidosis. He also noted that amyloidosis was the major contributing factor to the employee’s 

March 11, 2009 death. Dr. Lies further noted that the progression of amyloidosis would be 

considered idiopathic. He reportedly did not know any occupational reason for the employee 

acquiring amyloidosis. Dr. Lies also indicated that the employee had coexistent severe lung 

disease, asthmatic bronchitis, sleep apnea, and metabolic syndrome. Additionally, he referenced 

the death certificate which identified congestive heart failure and reactive airways dysfunction 

syndrome (RADS) as other significant conditions contributing to death, but not resulting in the 

underlying cause. Dr. Lies explained that asthma/RADS results in less oxygenated blood being 

pumped to the heart and can cause the heart to beat faster. He further explained that this can 

result in pulmonary hypertension and right-sided heart failure -- cor pulmonale. Dr. Lies noted 

that a March 9, 2009 echocardiogram showed marked right ventricular hypertrophy. 

In a June 9, 2010 report, Dr. Michael R. Novak, a Board-certified family practitioner, 

indicated that smoke inhalation as a firefighter caused chronic pulmonary fibrosis, which was a 

contributing factor to the employee’s March 11, 2009 death. 

Dr. John W. Ellis, Board-certified in family medicine and environmental medicine, 

provided a February 11, 2011 report. He explained that the employee died due to amyloidosis 

and heart failure. Dr. Ellis also indicated that the employee’s asthma aggravated his cor 

pulmonale, which in turn aggravated his heart failure and caused his death. As to what caused 

the amyloidosis, he indicated that he could not say with reasonable certainty and probability that 

the condition was due to the employee’s prior exposure to toxic fumes. However, Dr. Ellis noted 

it was possible that smoke inhalation could have caused a toxic reaction resulting in the 

development of amyloidosis. He explained that fires produced many toxic chemicals and 

carcinogens, and hardwood fires caused toxic fumes. Dr. Ellis further noted that pine wood 

caused even greater toxic fumes because of the amount of resin and its higher burning point. He 

concluded that while heart failure was the primary cause of death, the employee’s asthma 

definitely contributed to the cor pulmonale and his eventual heart failure. 

By decision dated May 6, 2011, OWCP declined to modify its February 17, 2011 

decision denying survivor’s benefits. It continued to rely on Dr. Tawk’s August 3 and 

November 23, 2010 reports. The decision noted, inter alia, that as Dr. Ellis did not specialize in 

pulmonary diseases, his February 11, 2011 opinion was highly speculative regarding the 

relationship between toxic exposure and amyloidosis. 

Appellant again requested reconsideration on July25, 2011. Dr. Marks provided a 

July 15, 2011 supplemental report wherein he noted that a March 9, 2009 echocardiogram 

confirmed the presence of pulmonary hypertension and cor pulmonale. He indicated that 

occupational asthma caused the pulmonary hypertension and cor pulmonale, which contributed 

to the employee’s heart failure and arrhythmias, and his ultimate demise. 

OWCP referred the case back to Dr. Tawk. In a September 9, 2011 supplemental report, 

Dr. Tawk indicated that the employee’s asthma did not contribute in any way to his death on 

March 11, 2009. He noted that the pathology report was very clear that the employee had diffuse 

amyloidosis that led to renal and heart failure. Dr. Tawk reiterated that there was no relationship 

between occupational asthma and secondary amyloidosis. He further explained that the progress 
5

notes from the employee’s last hospitalization revealed that he was admitted for generalized 

weakness and not for acute respiratory distress. Dr. Tawk noted that the employee had heart 

problems aggravated by hyperkalemia (high blood potassium), which manifested itself as severe 

bradycardia. There was no evidence at the time of admission that the employee was in asthma 

exacerbation. Dr. Tawk further noted that the March 9, 2009 physical examination of the 

employee’s lungs was completely normal with no evidence of rales, ronchi, or wheezing. 

Additionally, he noted that the autopsy did not reveal any significant airway inflammation. And 

absent significant airway inflammation, a hallmark of acute exacerbation of asthma, one would 

not be able to associate, in whole or in part, the reactive airway disease to the employee’s death. 

Lastly, Dr. Tawk noted that the pathology report confirmed the presence of parenchymal 

(interstitial) amyloidosis. In summary, he indicated that the employee’s asthma did not 

contribute in any way (“aggravation or acceleration”) to his death on March 11, 2009. 

By decision dated September 20, 2011, OWCP denied modification of its prior decision 

regarding entitlement to survivor’s benefits. Again, it relied on Dr. Tawk’s opinion as a basis for 

finding that the employee’s March 11, 2009 death was not employment related. 

On January18, 2012, appellant again requested reconsideration. 

Dr. Stevan Correa, a Board-certified family practitioner, examined the employee on 

March 7, 2009 just prior to his hospitalization at another facility. In a December 12, 2011 report, 

he indicated that the employee appeared to be in congestive heart failure, exacerbated by renal 

failure. Because of the serious nature of his condition, Dr. Correa had the employee transferred 

to another hospital (St. Helena) where he would have access to hemodialysis. He further noted 

that employee’s main complaints at the time were worsening dyspnea and orthopnea. Having 

reviewed the St. Helena records, Dr. Correa noted that an echocardiogram documented a 

significant component of right ventricular dysfunction and significant pulmonary hypertension. 

He indicated that the employee’s obstructive sleep apnea and history of occupational asthma 

were contributing factors in the development of his pulmonary hypertension and right ventricular 

dysfunction, which led to worsening of cor pulmonale, and ultimately, his presentation in 

fulminant congestive heart failure on March 7, 2009. 

In a January 2, 2012 report, Dr. William G. Hughson, a Board-certified internist with a 

subspecialty in pulmonary disease, noted he had reviewed various records provided by appellant, 

including Dr. Tawk’s reports.5

 He indicated that the underlying disease that primarily caused the 

employee’s death was systemic amyloidosis, which affected multiple organs and ultimately lead 

to heart and kidney failure. Dr. Hughson also acknowledged that there was no epidemiological 

evidence that occupational asthma/RADS caused primary (AL) amyloidosis, but posited there 

“might” be a causal association between asthma/RADS and secondary amyloidosis. He 

commented that the notion that asthma played no part in the employee’s death seemed arbitrary 

and illogical. In contrast, Dr. Hughson was of the opinion that the employee’s accepted 

condition shortened his life and contributed to his death. He noted the March 9, 2009 

echocardiogram revealed right ventricular dilation and pulmonary hypertension. Dr. Hughson 

reasoned that asthma can be associated with those findings, while acknowledging that the 

 5

 Dr. Hughson is also Board-certified in occupational medicine. 
6

employee’s amyloidosis was probably contributing as well. He further commented that any 

reasonable physician would agree that asthma was an impediment and it diminished the 

likelihood of the employee’s survival. 

In a March 23, 2012 decision, OWCP again denied modification of its prior decision. It 

found Dr. Hughson’s January 2, 2012 opinion of diminished probative value. 

Appellant again requested reconsideration on April 2 and 9, and May 14, 2012. 

Accompanying the April 2 and May 14, 2014 reconsideration requests was an April 30, 2012 

report from Dr. Lies. Dr. Lies referenced his February 19, 2009 treatment notes and explained 

that the employee’s renal disease and asthma/RADS limited the type of therapy available, which 

might have otherwise stabilized his cardiovascular status and improved longevity. 

OWCP denied modification by decision dated September 7, 2012. The senior claims 

examiner noted, inter alia, that Dr. Lies’ latest report did not discuss how the employee’s death 

was related to the accepted employment injury. 

On September 17, 2012 appellant filed another request for reconsideration. She 

resubmitted Dr. Correa’s December 12, 2011 report, noting that OWCP failed to specifically 

address his findings in either of its last two decisions. 

OWCP subsequently declared a conflict in medical opinion between Dr. Tawk and 

Dr. Hughson. 

Appellant also submitted a December 14, 2012 report from Dr. Maria E. Samsonov, a 

Board-certified nephrologist, who treated the employee during his March 2009 hospitalization. 

Dr. Samsonov explained that amyloidosis would have made survival from acute events less 

likely as it affects multiple organ systems, including the heart and kidneys. She noted that the 

presence of lung disease/pulmonary hypertension can impede management of heart disease, and 

consequently worsen renal failure. Dr. Samsonov further explained that the interrelated nature of 

organ systems and renal failure in particular, contributes to poor outcomes, as was the 

employee’s case. 

In a May 3, 2013 report, the impartial medical examiner, Dr. Hsien-Wen Hsu, a Boardcertified internist with subspecialties in pulmonary disease and critical care medicine, selected 

due to the conflict in medical opinion in the case, agreed with Dr. Tawk that the employee died 

due to amyloidosis, and that his accepted condition of asthma neither caused nor aggravated the 

employee’s eventual death. He explained that the March 9, 2009 echocardiogram findings, 

which others believed demonstrated asthma-related pulmonary hypertension, were in fact 

attributable to restrictive cardiomyopathy due to amyloidosis. Dr. Hsu further explained that the 

amyloidosis alone would account for the employee’s pulmonary arterial pressure. Additionally, 

he indicated that even if there was an element of pulmonary hypertension, it was most likely 

related to the employee’s very severe sleep apnea, and not his asthma. Moreover, Dr. Hsu noted 

that the employee’s March 7, 2009 arterial blood gas results -- near normal Pco2 -- was further 

evidence that argued against a chronic lung disease being severe enough to change the 

employee’s life expectancy. 
7

In a May 15, 2013 decision, OWCP denied modification of its September 7, 2012 

decision. It based its decision on the impartial medical examiner’s May 3, 2013 report. The 

senior claims examiner found that the employee’s death was unrelated to the mechanism of 

injury or the accepted employment-related conditions. Consequently, he denied appellant’s 

claim for survivor’s benefits. 

In an August 29, 2013 letter, appellant requested that OWCP investigate whether the 

employee’s occupational exposure to unspecified toxic fumes, vapors, and gases contributed to 

his development of AL amyloidosis. She noted that none of the employee’s treating physicians 

had considered this possible connection because AL amyloidosis was only diagnosed after his 

death. Appellant further noted that the Department of Veterans Affairs presumed that AL 

amyloidosis was service-connected where there was a history of in-service exposure to Agent 

Orange or other herbicides. While the employee was not a veteran, appellant claimed that wood 

smoke shared many of the same toxins as Agent Orange. She included an August 1, 2013 report 

from Dr. David C. Seldin, a hematologist and director of the Amyloidosis Center at Boston 

University School of Medicine. Dr. Seldin indicated that there was no doubt that the employee’s 

exposure to smoke as a firefighter would have had the “potential” to contribute to the 

development of cancer and blood diseases like AL amyloidosis. 

In a similar report dated August 6, 2013, Dr. Seldin noted that based on records obtained 

from appellant, the employee died due to AL amyloidosis, a malignant bone marrow plasma cell 

disorder. He further noted there was a “strong possibility” -- greater than 50 percent -- that 

exposure to toxic products of combustion as a firefighter contributed to acquiring this disease 

and to the employee’s death. 

On September 27 and 30, 2013 appellant again requested reconsideration. In a separate 

letter dated September 27, 2013, she asked OWCP to expand the employee’s claim to include 

AL amyloidosis and other consequential injuries, including hiatal hernia, obesity, 

gastroesophageal reflux disease (GERD), obstructive sleep apnea, and seizure disorder. She also 

requested that OWCP refer the case to a hematologist/toxicologist knowledgeable in woodland 

fires and the effects of toxins. 

Appellant submitted various medical records dating back to September 1986. She also 

submitted a July 12, 2013 report from Dr. James Lea, a Board-certified neurologist. Dr. Lea 

noted that he treated the employee in December 2004 for a generalized convulsive seizure in the 

context of significant sleep deprivation, which in turn was brought on by asthma with associated 

coughing attacks. He explained that chronic obstructive pulmonary disease did not cause the 

seizure, but coughing associated with asthma likely resulted in sleep deprivation, and sleep 

deprivation was a well-recognized trigger for an underlying seizure disorder. As such, Dr. Lea 

opined that occupational exposure to smoke “may” have been a contributing factor to the 

employee’s clinical seizure disorder. 

OWCP also received a November 8, 2013 report from Dr. Jerry E. Douglas, a Boardcertified internist and family practitioner. Dr. Douglas indicated that he had not treated the 

employee during his lifetime, but had since reviewed his records. He specifically focused on the 

employee’s obesity, noting that in 2008 he weighed a maximum of 274 pounds. Dr. Douglas 

explained that obesity increases dyspnea and is often the major contributor to obstructive sleep 
8

apnea. He also noted that weight loss was difficult with underlying lung disease, and it appeared 

that the employee’s weight was an aggravating factor with respect to his shortness of breath and 

obstructive sleep apnea. 

In a December 20, 2013 nonmerit decision, OWCP denied appellant’s request for 

reconsideration. It explained that it previously reviewed the medical evidence to determine 

which conditions should be accepted. Additionally, OWCP explained that because the issue on 

reconsideration was medical in nature, appellant’s belief regarding the connection between AL 

amyloidosis and smoke exposure was immaterial. It also noted that while some of the recently 

submitted medical evidence was new to the record, it was nonetheless cumulative and 

substantially similar to evidence already contained in the case file. OWCP indicated that 

Dr. Hsu, the impartial medical examiner, had previously determined that the employee’s death 

was unrelated to his employment as a forestry technician, and the current request for 

reconsideration did not present evidence sufficient to warrant merit review of the May 15, 2013 

decision. 

On January14, 2014 appellant again requested reconsideration. She submitted the appeal 

request form that accompanied OWCP’s prior decision. Appellant did not present any additional 

evidence or argument with her request for reconsideration. Consequently, by decision dated 

February 3, 2014, OWCP denied merit review pursuant to 5 U.S.C. § 8128(a). 

Appellant filed another request for reconsideration on February10, 2014. She argued that 

the previously submitted reports from Dr. Seldin, Dr. Lea, and Dr. Douglas were sufficient to 

warrant further merit review. Appellant also argued that neither Dr. Tawk nor Dr. Hsu 

specifically addressed whether the employee’s occupational exposure caused or contributed to 

his death due to AL amyloidosis. She also identified several perceived deficiencies in the 

impartial medical examiner’s May 3, 2013 report. However, appellant did not submit any 

additional medical evidence with her request for reconsideration. 

In a March 3, 2014 decision, OWCP denied appellant’s request for reconsideration and 

did not review the merits of the claim. The claims examiner addressed the numerous arguments 

appellant raised in her February10, 2014 request, but found none of them warranted merit review 

of the May 15, 2013 decision.6

On May 13, 2014 appellant timely requested reconsideration of OWCP’s May 15, 2013 

merit decision, via a May 7, 2014 letter. She reiterated her request that OWCP further develop 

the case and expand the claim to include AL amyloidosis, obesity, sleep apnea, hiatal hernia, 

GERD, and seizure disorder as accepted conditions. Appellant argued that Dr. Seldin’s 

August 2013 reports established a causal relationship between the employee’s occupational 

exposure and AL amyloidosis. She also reiterated that neither Dr. Tawk nor the impartial 

medical examiner specifically addressed whether the employee’s occupational smoke exposure 

caused or contributed to his AL amyloidosis. 

In support of her request for reconsideration, appellant submitted a May 7, 2014 report 

from David H. Sherr, Ph.D., a cancer biologist and toxicologist. Dr. Sherr indicated that several 

 6

 OWCP incorrectly stated that the record did not include Dr. Seldin’s August 1 and 6, 2013 reports. 
9

of the chemicals produced during forest fires that the employee would have been chronically 

exposed to -- polycyclic aromatic hydrocarbons, dioxins, alkaloids, and benzenes -- could easily 

have induced pulmonary inflammation leading to an asthma-like condition. He further indicated 

that there was compelling evidence that the chemicals the employee was exposed to while 

fighting forest fires contributed to the development of the low malignancy plasma cells that are 

the root cause of AL amyloidosis. Dr. Sherr also noted the link between dioxin exposure in 

Agent Orange and AL amyloidosis. He concluded that it was very likely that the employee’s 

death was a direct consequence of his exposure to aromatic hydrocarbons, chlorinated biphenyl, 

and dioxin while performing his duties for the employing establishment. 

Appellant also resubmitted several reports from Dr. Seldin, Dr. Lea, Dr. Lies, 

Dr. Samsonov, and Dr. Douglas. Additionally, she resubmitted partial records from the 

employee’s March 7 to 11, 2009 hospitalization. 

In a May 22, 2014 nonmerit decision, OWCP denied appellant’s request for 

reconsideration. It explained that most of the evidence submitted on reconsideration was already 

part of the record when it issued the March 3, 2014 nonmerit decision. Additionally, OWCP 

noted that the only purported new medical evidence since the last decision was the May 7, 2014 

report from Dr. Sherr. However, Dr. Sherr was not considered a “physician” as defined under 

FECA, and therefore, OWCP found that his report could not be considered medical evidence. 

The claims examiner also noted that appellant’s disagreement with the impartial medical 

examiner’s opinion was immaterial as she was not a physician. Lastly, it noted that appellant 

previously argued in favor of expanding the claim, and she had not submitted any new medical 

evidence supporting her argument. Consequently, OWCP found insufficient evidence and/or 

argument to warrant further review of its May 15, 2013 merit decision. 

By letter dated June 13, 2014, received June 18, 2014, appellant again requested 

reconsideration. She submitted the appeal request form that accompanied the May 22, 2014 

decision, which OWCP received on June 18, 2014. In a separate letter, also dated June 13, 2014, 

appellant indicated that she was submitting a new report from Dr. Seldin dated June 12, 2014.7

 

Additionally, she resubmitted Dr. Seldin’s August 6, 2013 report and Dr. Sherr’s May 7, 2014 

report. Appellant also continued to question OWCP’s refusal to conduct a merit review based on 

the new evidence obtained following the impartial medical examiner’s May 3, 2013 review of 

the case. 

By decision dated July 2, 2014, OWCP found that appellant’s request for reconsideration 

was untimely filed and failed to demonstrate clear evidence of error with respect to the May 15, 

2013 merit decision. It noted that it had not received Dr. Seldin’s June 12, 2014 report, and the 

other two referenced reports were previously submitted. Additionally, OWCP noted that 

although the December 20, 2013 decision did not specifically mention Dr. Seldin’s August 6, 

2013 report by name, the decision noted the doctor’s comments about “malignant bone marrow 

plasma cell disorder AL amyloidosis.” Consequently, it found that appellant failed to 

demonstrate clear evidence of error. 

 7

 Although appellant claimed to have submitted a June 12, 2014 report from Dr. Seldin, the record does not reveal 

OWCP having received the referenced report at that time. 
10

On July 14, 2014 OWCP received appellant’s July 7, 2014 request for reconsideration. 

She submitted a June 12, 2014 report from Dr. Seldin, and another copy of Dr. Sherr’s May 7, 

2014 report. 

In his June 12, 2014 supplemental report, Dr. Seldin opined that it was “very probable” 

that the employee’s exposure as a primary firefighter from 1981 to 1987 contributed to the 

development of AL amyloidosis. He described the employee’s duties as including prescribed 

burns, gas and diesel equipment use and maintenance, torch man, and fighting many local and 

off-district wildfires. Dr. Seldin explained that wildland firefighters have more exposure to 

associated toxins in a fire season than urban firefighters have in a year, and that the employee 

had several well-documented incidents of smoke inhalation during those years (1981-1987). He 

also noted that the employee continued to have adverse effects from his employment injuries 

until his death. Dr. Seldin further explained that, while not everything was known about the 

causes of amyloidosis, exposure to carcinogens, herbicides, and radiation were all recognized 

contributors to the development of plasma cell diseases, including multiple myeloma and AL 

amyloidosis. He expressed hope that the information provided would be taken into account in 

recognizing the high likelihood that the employee’s occupational exposure contributed to the 

onset of his ultimately fatal disease. 

By decision dated October 9, 2014, OWCP denied appellant’s latest request for 

reconsideration as it was untimely filed and failed to demonstrate clear evidence of error. It 

noted that it previously addressed Dr. Sherr’s May 7, 2014 report. And with respect to 

Dr. Seldin’s June 12, 2014 report, OWCP continued to find that the impartial medical examiner’s 

opinion represented the special weight of the evidence. 

LEGAL PRECEDENT -- ISSUE 1 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8

OWCP’s regulations provide that a claimant must submit a written application for 

reconsideration that sets forth arguments and contains evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument 

not previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.9

 

20 C.F.R. § 10.608(b) states that any application for review that does not meet at least 

one of the requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without 

review of the merits of the claim.10

ANALYSIS -- ISSUE 1 

OWCP’s last merit decision of record is dated May 15, 2013. In that decision, it found 

that the impartial medical examiner’s May 3, 2013 report represented the special weight of the 

 8

 5 U.S.C. § 8128(a). 

9

 20 C.F.R. § 10.606(b)(3). 

10 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
11

evidence regarding the employee’s cause of death. In essence, OWCP continued to find that 

appellant was not entitled to survivor’s benefits because she failed to establish that the 

employee’s death was causally related to his accepted work-related conditions of smoke-induced 

asthma and permanent aggravation of smoke-induced asthma. 

When appellant filed her survivor’s benefits claim in September 2009, she initially 

presented medical evidence indicating that the employee’s occupational asthma was a 

contributory cause of death. At the time, Dr. Marks represented that the direct cause of death 

was diffuse amyloidosis leading to congestive heart failure and acute renal failure, which was not 

employment related. However, he believed the employee’s occupational asthma probably 

aggravated his heart failure to a degree. In response to the initial medical evidence, OWCP 

assisted in the development of the case to determine whether the employee’s smoke-induced 

asthma either caused or contributed to his death. It ultimately declared a conflict in medical 

opinion, which resulted in Dr. Hsu’s May 3, 2013 finding that the employee died due to 

amyloidosis, and that his accepted condition of asthma neither caused nor aggravated his 

eventual death. Appellant now believes that the employee’s AL amyloidosis was employment 

related, and she faults OWCP for not developing the record regarding the etiology of this 

particular condition.11

In her May7, 2014 request for reconsideration, appellant expressed disagreement with the 

impartial medical examiner’s opinion. She also reiterated her request to expand the claim to 

include AL amyloidosis, obesity, seizure disorder, sleep apnea, hiatal hernia, and GERD as 

accepted conditions.12 Appellant’s May 7, 2014 request for reconsideration was timely filed, 

however, she neither alleged nor demonstrated that OWCP erroneously applied or interpreted a 

specific point of law. Additionally, she did not advance any relevant legal arguments not 

previously considered by OWCP. The Board thus finds that appellant is not entitled to a review 

of the merits based on the first and second requirements under section 10.606(b)(3).13

Appellant also failed to submit any relevant and pertinent new evidence with her May7, 

2014 request for reconsideration. The issue on reconsideration was whether there was a causal 

relationship between the employee’s death and his accepted condition. Causal relationship is a 

medical question that generally requires rationalized medical opinion evidence to resolve the 

issue.14 Although appellant submitted new evidence with her May 7, 2014 request for 

 11 Where a claimant claims that a condition not accepted or approved by OWCP was due to an employment 

injury, she/he bears the burden of proof to establish that the condition is causally related to the employment injury. 

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). When an injury arises in the course of employment, every natural 

consequence that flows from that injury likewise arises out of the employment, unless it is the result of an 

independent intervening cause attributable to the employee’s own intentional misconduct. Mary Poller, 55 ECAB 

483, 487 (2004); 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law 10-1 (2006). Thus, a 

subsequent injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it is the 

direct and natural result of a compensable primary injury. Susanne W. Underwood (Randall L. Underwood), 53 

ECAB 139, 141 n.7 (2001). 

12 Appellant initially raised this issue in correspondence dated August 29 and September 27, 2013, which OWCP 

previously addressed in its December 20, 2013 nonmerit decision. 

13 20 C.F.R. § 10.606(b)(3)(i) and (ii). 

14 See Robert G. Morris, 48 ECAB 238 (1996). 
12

reconsideration, Dr. Sherr is not considered a “physician” as defined under FECA.15 

Consequently, his May 7, 2014 report is not probative on the issue of whether the employee’s 

death was employment related. Appellant also resubmitted several reports from various 

physicians, and partial records from the employee’s March 2009 hospitalization. However, 

providing additional evidence that either repeats or duplicates information already of record does 

not constitute a basis for reopening a claim.16 Because appellant did not provide any relevant 

and pertinent new evidence, she is not entitled to a review of the merits based on the third 

requirement under section 10.606(b)(3).17 Accordingly, OWCP properly declined to reopen 

appellant’s case under 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT -- ISSUE 2 

Pursuant to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.18 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.19 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA. As one such limitation, 20 C.F.R. § 10.607 provides that an application for 

reconsideration must be received within one year of the date of OWCP s decision for which 

review is sought.20 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 

evidence must be positive, precise, and explicit and must manifest on its face that OWCP 

committed an error.21

ANALYSIS -- ISSUE 2 

On June 18, 2014 OWCP received from appellant the appeal request form dated June 13, 

2014 that accompanied the May 22, 2014 decision. As this was more than a year after the latest 

merit decision dated May 15, 2013, the request for reconsideration was untimely filed pursuant 

to 20 C.F.R. § 10.607(a). With her June 13, 2014 request, appellant resubmitted Dr. Seldin’s 

August 6, 2013 report and Dr. Sherr’s May 7, 2014 report. She also claimed to have submitted a 

June 12, 2014 report from Dr. Seldin. However, the record does not indicate that OWCP 

 15 The term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, 

chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. 

§ 8101(2); 20 C.F.R. § 10.5(t). Despite his background in environmental health, pathology, and immunology, under 

FECA Dr. Sherr is not considered qualified to offer a medical opinion regarding the employee’s cause of death. See

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a (January 2013). 

16 James W. Scott, 55 ECAB 606, 608 n.4 (2004). 

17 20 C.F.R. § 10.606(b)(3)(iii). 

18 5 U.S.C. § 8128(a). 

19 Under section 8128 of FECA, [t]he Secretary of Labor may review an award for or against payment of 

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

20 20 C.F.R. § 10.607 (2012). 

21 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 
13

received Dr. Seldin’s June 12, 2014 report at that time. On reconsideration, appellant continued 

to question OWCP’s refusal to conduct a merit review based on the new evidence obtained 

following the impartial medical examiner’s May 3, 2013 review of the case. 

In its July 2, 2014 decision, OWCP found that the August 6, 2013 and May 7, 2014 

reports were previously of the record and had already been reviewed. It also explained that it 

had not received Dr. Seldin’s June 12, 2014 report. Because appellant’s June 13, 2014 

reconsideration request was untimely filed, OWCP properly considered whether she 

demonstrated clear evidence of error with respect to the May 15, 2013 decision. 

Appellant noted that Dr. Hsu did not specifically address whether the employee’s 

occupational exposure caused or contributed to the development of his AL amyloidosis. She 

also faulted OWCP for not undertaking further development to determine the etiology of this 

condition. The Board notes that appellant waited almost four years before raising this particular 

issue. When she filed her claim (Form CA-5) in September 2009, initial reports from Dr. Marks 

and Dr. Lies indicated that the employee’s amyloidosis was not employment related. In fact, 

Dr. Lies characterized it as idiopathic and commented that he did not know any occupational 

reason why the employee would get amyloidosis. Similarly, Dr. Ellis reported in February 2011 

that he could not state with reasonable certainty that the employee’s amyloidosis was caused by 

toxic fume exposure. The prevailing view at the time was that the employee’s smoke-induced 

asthma aggravated his heart condition (pulmonary hypertension/cor pulmonale) and contributed 

to his ultimate heart failure. OWCP developed the case based on this particular theory of causal 

relationship, with an emphasis on whether the employee’s asthma was related to amyloidosis 

and/or his heart and renal failure. It issued six merit decisions denying survivor’s benefits before 

appellant first raised her current theory of causal relationship in August 2013. 

While evidence of a procedural error could potentially demonstrate clear evidence of 

error, in this instance the alleged procedural flaw post-dated the latest merit decision issued on 

May 15, 2013.22 The Board notes that OWCP actively participated in the development of the 

case prior to issuing its May 15, 2013 merit decision.23 Once OWCP undertakes development of 

the record, it must do a complete job in procuring medical evidence that will resolve the relevant 

issues in the case.24 Although neither Dr. Tawk nor Dr. Hsu specifically addressed whether there 

was a causal relationship between the employee’s occupational smoke exposure and amyloidosis, 

appellant did not raise her alternative theory of causation until after OWCP issued its May 15, 

2013 decision. As such, the Board finds that appellant’s June 13, 2014 request for 

reconsideration did not raise a substantial question concerning the correctness of OWCP’s 

May 15, 2013 merit decision. Accordingly, the Board shall affirm OWCP’s July 2, 2014 

nonmerit decision based on appellant’s failure to demonstrate clear evidence of error. 

 22 See Thankamma Mathews, 44 ECAB 765 (1993). 

23 Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. The claimant 

has the burden to establish entitlement to compensation; however, OWCP shares responsibility in the development 

of the evidence to see that justice is done. William J. Cantrell, 34 ECAB 1223 (1983). 

24 Richard F. Williams, 55 ECAB 343, 346 (2004). 
14

Appellant’s July 7, 2014 letter requesting reconsideration was also untimely filed as 

OWCP received it on July 14, 2014, more than one year after the May 15, 2013 merit decision. 

As such, appellant must demonstrate clear evidence of error with respect to OWCP’s latest merit 

decision denying survivor’s benefits. With her July 7, 2014 request, appellant submitted 

Dr. Seldin’s June 12, 2014 report.25 Appellant reiterated her request that OWCP accept 

amyloidosis as being causally related to her husband’s “toxic exposure.” In his June 12, 2014 

supplemental report, Dr. Seldin indicated that it was “very probable” that the employee’s 

exposure as a primary firefighter from 1981 to 1987 contributed to the development of AL 

amyloidosis. Dr. Seldin explained that while not everything was known about the causes of 

amyloidosis, exposure to carcinogens, herbicides, and radiation were all recognized contributors 

to the development of plasma cell diseases, including multiple myeloma and AL amyloidosis. 

This June 12, 2014 report is substantially similar to Dr. Seldin’s August 1 and 6, 2013 reports, 

which appellant initially submitted in September 2013, and OWCP previously considered. 

In her latest request for reconsideration, appellant indicated that she had not suspected her 

husband’s smoke inhalation caused amyloidosis until 2013. As previously noted, it was not until 

August 29, 2013 that appellant shared her latest theory on causal relationship with OWCP. And 

at that time, she requested that OWCP investigate whether her husband’s occupational exposure 

contributed to his development of AL amyloidosis. Again, OWCP’s post-May 15, 2013 refusal 

to reopen the survivor’s claim and undertake further medical and/or factual development does 

not adversely reflect on the correctness or propriety of its May 15, 2013 merit decision. The 

previous development of the record was consistent with the then-prevailing theory on causal 

relationship, and appellant has failed to submit evidence or argument demonstrating a clear 

procedural error on OWCP’s part. Accordingly, the Board finds that appellant’s July 7, 2014 

request for reconsideration was untimely filed and failed to demonstrate clear evidence of error 

with respect to OWCP’s May 15, 2013 merit decision denying survivor’s benefits. 

CONCLUSION 

The Board finds that OWCP properly denied further merit review with respect to 

appellant’s May 7, 2014 timely request for reconsideration. As to her June 13 and July 7, 2014 

requests for reconsideration, OWCP properly found that both were untimely filed and failed to 

demonstrate clear evidence of error. 

 25 Appellant also submitted another copy of Dr. Sherr’s May 7, 2014 report, which OWCP previously found 

insufficient because he is not considered a “physician” as defined under FECA. 
15

ORDER 

IT IS HEREBY ORDERED THAT the October 9, July 2 and May 22, 2014 decisions 

of the Office of Workers’ Compensation Programs are affirmed. 

Issued: October 13, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board