United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.L., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

BUREARU OF INVESTIGATIONS, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 17-1096 

Issued: September 6, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

On April 24, 2017 appellant filed a timely application for review from a November 29, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his 

request for reconsideration. The Board docketed the appeal as No. 17-1096. 

On June 2, 2014 appellant, then a 49-year-old special agent, filed an occupational disease 

claim (Form CA-2) alleging that he developed chronic lymphocytic leukemia (CLL) as a result 

of being enveloped in a cloud of toxic dust as he hid in an archway of a building following the 

collapse of the South Tower of the World Trade Center in New York City, New York, due to a 

terrorist attack on September 11, 2001. In a May 29, 2015 merit decision, OWCP denied his 

claim, finding that the medical evidence of record was insufficient to establish a causal 

relationship between appellant’s medical condition and the accepted factors of his federal 

employment. In an appeal request form received on May 17, 2016, appellant requested 

reconsideration. He did not submit any additional evidence. In a nonmerit decision dated 

June 22, 2016, OWCP denied appellant’s request for reconsideration, finding that it neither 

raised substantive legal questions nor included new and relevant evidence. In a letter received on 

September 22, 2016, appellant requested reconsideration and submitted a September 14, 2006 

medical report from Dr. Bruce A. Cohen, an employing establishment medical officer 

specializing in occupational medicine and family practice. In this report, Dr. Cohen found that 
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appellant had CLL due to the accepted employment factors. In a November 29, 2016 nonmerit 

decision, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed 

and failed to demonstrate clear evidence of error. 

The Board has duly considered the matter and finds that this case is not in posture for 

decision. Section 8124(a) of the Federal Employees’ Compensation Act provides that OWCP 

shall determine and make a finding of fact and make an award for or against payment of 

compensation.1

 Its regulations also provide that the decision shall contain findings of fact and a 

statement of reasons.2 The reasoning behind OWCP’s evaluation should be clear enough for the 

reader to understand the precise defect of the claim and the kind of evidence which would 

overcome it.3

In its November 29, 2016 decision, OWCP did not discharge its responsibility to provide 

appellant a statement explaining the disposition so that appellant could understand the basis for 

the decision as well as the precise defect and the evidence needed to overcome the denial of his 

claim. The Board notes that OWCP denied appellant’s September 22, 2016 request for 

reconsideration because it was untimely filed, but failed to provide any discussion of the 

evidence he submitted in support of his reconsideration request and failed to explain how the 

evidence of record failed to demonstrate clear evidence of error. 

Accordingly, the case must be returned to OWCP for a proper decision which includes 

findings of fact and a clear and precise statement regarding appellant’s request for 

reconsideration on the denial of his occupational disease claim or why he is not entitled to further 

reconsideration. Following this and such further development as OWCP deems necessary, it 

shall issue an appropriate decision. 

 

 1

 5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005). 

2

 20 C.F.R. § 10.126; see also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L., Docket 

No. 09-0956 (issued April 15, 2010). 

3

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See 

also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(b) (October 2011) (if 

the evidence submitted is not sufficient to require a merit review, OWCP should issue a decision which discusses the 

evidence submitted, or lack thereof, and explicitly state the basis for the finding of insufficiency). See also 

Robert M. Pace, 46 ECAB 551 (1995) (in determining whether clear evidence of error is shown, a brief evaluation 

of the evidence should be included in the decision so that any subsequent reviewer will be able to address the issue 

of discretion). 
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IT IS HEREBY ORDERED THAT the November 29, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action 

consistent with this order of the Board. 

Issued: September 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board