United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.J., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Selfridge, MI, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-0829

Issued: February 21, 2019

Appearances: Case Submitted on the Record

Garrett J. TenHave-Chapman, Esq., for the appellant1

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 March 12, 2018 appellant, through counsel, filed a timely appeal from a September 18, 

2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Board 

assigned the appeal Docket No. 18-0829.2

On February 18, 2016 appellant, then a 49-year-old supervisory air interdiction agent 

(pilot), filed a traumatic injury claim (Form CA-1) alleging that he injured his head, left upper 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 The Board notes that following the September 18, 2017 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “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. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

evidence for the first time on appeal. Id.
2

extremity, and lower back in a February 16, 2016 work-related fall.3 OWCP received various 

chiropractic treatment records in support of appellant’s claim. After additional development, it

denied his claim by decision dated September 9, 2016. OWCP found that appellant had not 

established the medical component of fact of injury. It subsequently received diagnostic studies 

and additional chiropractic treatment records.

On September 12, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

September 9, 2016 decision and submitted additional medical evidence, including various reports 

dated September 1, 2016 through June 2, 2017 from Dr. Jason Stanczak, a chiropractor.

By decision dated September 18, 2017, OWCP denied appellant’s request for 

reconsideration because 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. Although OWCP correctly determined that appellant’s September 12, 2017 request for 

reconsideration was untimely, the September 18, 2017 decision failed to explain how the evidence 

received following the September 9, 2016 decision was insufficient to demonstrate clear evidence 

of error. Its decision “shall contain findings of fact and a statement of reasons.”

4

 In this instance, 

OWCP merely concluded, without explanation, that appellant had not demonstrated clear evidence 

of error. As such, the September 18, 2017 decision does not fully comply with 20 C.F.R. 

§ 10.126.5 Accordingly, the case shall be remanded for issuance of an appropriate de novo decision 

that contains “findings of fact and a statement of reasons.”

6

 

3 Appellant stated that he was walking to the front of his helicopter when he slipped on an ice-covered ramp and 

fell to the ground.

4

Id. at § 10.126.

5 See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5b 

(February 2016) (if clear evidence of error has not been presented, the letter decision should include a brief evaluation 

of the evidence submitted and a finding that clear evidence of error has not been shown).

6 20 C.F.R. § 10.126.
3

IT IS HEREBY ORDERED THAT the September 18, 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: February 21, 2019

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