United States Department of Labor

Employees’ Compensation Appeals Board

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D.R., Appellant

and

DEPARTMENT OF THE TREASURY,

INTERNAL REVENUE SERVICE NATIONAL 

OFFICE, Richmond, VA, Employer

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Docket No. 18-0165

Issued: May 2, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On October 30, 2017 appellant filed a timely appeal from a May 5, 2017 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No.

18-0165.

On April 30, 2012 appellant, then a 55-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that, on that same date, she sustained multiple injuries when she fell into a flower 

bed while walking into her office building. By decision dated November 8, 2012, OWCP accepted 

the claim for neck strain, strain of back lumbar region, lumbosacral radiculitis, cervical radiculitis, 

and concussion without loss of consciousness. On January 9, 2013 OWCP accepted the additional 

condition of left shoulder rotator cuff sprain.

On February 11, 2016 OWCP notified appellant of a proposed termination of her wageloss compensation benefits as the weight of the medical evidence established that she no longer 

had continuing residuals or disability as a result of her work-related injury and that she could return 

to her preinjury job as a clerk. It found that the weight of the medical evidence rested with

Dr. Alice Martinson, a Board-certified orthopedic surgeon, serving as the impartial medical 

examiner. Appellant was afforded 30 days to submit additional evidence.
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By decision dated March 15, 2016, OWCP terminated appellant’s wage-loss compensation 

benefits, effective that same date, finding that the weight of the medical evidence rested with

Dr. Martinson who found that appellant no longer had continuing disability as a result of her workrelated injury. It noted that appellant failed to submit medical evidence contesting the preliminary 

termination decision.

On April 15, 2016 appellant contested the March 15, 2016 termination decision and 

requested an oral hearing before an OWCP hearing representative.

A hearing was held on November 7, 2016 wherein appellant testified in support of her 

claim, consequential injuries, and continued disability. 

By decision dated December 14, 2016, an OWCP hearing representative affirmed the 

March 15, 2016 decision terminating appellant’s wage-loss compensation benefits. She noted that 

OWCP erroneously characterized Dr. Martinson as a referee physician because he belonged to the 

same practice as the treating physician who formed the conflict with the second opinion physician. 

The hearing representative found that Dr. Martinson would instead be characterized as a second 

opinion physician and that his report was sufficient to establish that the weight of the medical 

evidence rested with Dr. Martinson, finding that appellant was no longer disabled as a result of the 

April 30, 2012 work injury.

By appeal request form and narrative statement received by OWCP on February 14, 2017, 

appellant requested reconsideration. 

By decision dated May 5, 2017, OWCP denied appellant’s request for reconsideration, 

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

Having reviewed the case record submitted by OWCP, the Board finds that this case is not 

in posture for a decision. In its May 5, 2017 denial, OWCP improperly found that appellant’s 

February 14, 2017 request for reconsideration was untimely. It noted that the merit decision was 

issued on February 11, 2016 and it received appellant’s request for reconsideration on 

February 14, 2017. However the last merit decision in this case regarding the termination of 

appellant’s compensation benefits was the December 14, 2016 decision by OWCP’s hearing 

representative. The Code of Federal Regulations provides that a claimant has one year to timely 

file an application for reconsideration following a decision on the merits of the claim.1 As 

appellant’s request for reconsideration was received by OWCP within the one-year time limitation, 

pursuant to 20 C.F.R. § 10.607(a), her request for reconsideration was timely filed. 

The Board will, therefore, set aside OWCP’s May 5, 2017 decision and remand the case 

for issuance of an appropriate final decision based upon appellant’s timely request for 

reconsideration. 

 

1 20 C.F.R. § 10.607(a).
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IT IS HEREBY ORDERED THAT the May 5, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this order.

Issued: May 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board