United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.B., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Westbury, NY, Employer

__________________________________________

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Docket No. 17-0927

Issued: April 18, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 23, 2017 appellant filed a timely appeal from a December 16, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from OWCP’s last merit decision, dated October 15, 2015, 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.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 9, 2015 appellant, then a 31-year-old air traffic control specialist, filed a

traumatic injury claim (Form CA-1) alleging that while at work on May 9, 2015 he sustained 

 

1 5 U.S.C. § 8101 et seq.
2

stress, anxiety, and mental trauma due to observing a loss of separation between two aircraft. He 

stopped work on May 9, 2015.2

In a May 14, 2015 development letter, OWCP requested that appellant submit additional 

evidence in support of his claim, including a physician’s opinion supported by a medical 

explanation as to how the reported May 9, 2015 incident at work caused or aggravated a medical 

condition. It requested that he complete and return an attached questionnaire which posed 

various questions relative to the May 9, 2015 incident at work. On May 14, 2015 OWCP also 

requested additional information from the employing establishment.

In a May 15, 2015 statement, appellant responded to OWCP’s May 14, 2015 request for 

additional evidence. He recounted that on May 9, 2015 he was handling aircraft traffic while at 

the same time training a new trainee in his workplace. Appellant indicated that a corporate jet 

departing from Teterboro Airport in New Jersey checked in and the trainee directed it to climb to 

6,000 feet. When the corporate jet had climbed to 2,000 feet, he noticed that another aircraft 

which departed from LaGuardia Airport in Queens, New York, was using the same airspace.3 

Appellant then instructed the pilot of the corporate jet to immediately ascend to 3,000 feet in 

order to avoid the aircraft which departed from LaGuardia Airport. He indicated that he yelled at 

his supervisor to find out why the aircraft which departed from LaGuardia Airport was in the 

same airspace as the corporate jet and he stopped all subsequent aircraft departures. Appellant

asked a coworker to relieve him of his duties and he gave a briefing of the incident after the 

coworker relieved him. While he was on break, appellant’s body began to shake and his heart 

started to race. He indicated that, during the remainder of his shift on May 9, 2015 and the 

following days, he thought about the possibility that the two aircraft could have hit each other 

and about the responsibility he had for the safety of the passengers on the aircraft. Appellant

reported experiencing reactions to the May 9, 2015 incident, including flashbacks, sleep 

problems, and nervousness.

Appellant submitted an authorization for examination and/or treatment form (Form 

CA-16) completed on June 18, 2015 by Dr. Bruce S. Herman, an attending clinical psychologist. 

Dr. Herman listed the nature of the injury as loss of separation of two aircraft, diagnosed 

unspecified acute reaction to stress, and checked a box marked “Yes” to indicate that the 

diagnosed condition was caused or aggravated by the described employment factor.

By decision dated June 22, 2015, OWCP denied appellant’s claim that he sustained a 

stress-related condition due to the described May 9, 2015 incident at work. It determined that an 

employment incident occurred on May 9, 2015 in the form of a loss of separation of two aircraft, 

but found that appellant’s claim was denied because he failed to establish the medical component 

of the fact of injury.4

 

2 On the reverse side of the Form CA-1, appellant’s immediate supervisor indicated that appellant was in the 

performance of duty at the time of the May 9, 2015 incident, but noted that the incident was still under investigation. 

3 Appellant asserted that his supervisor did not inform him or the trainee that the aircraft departing from 

LaGuardia Airport would be using this airspace.

4 OWCP maintained that it had not received any medical evidence despite the fact the June 18, 2015 report of

Dr. Herman was of record.
3

On July 22, 2015 appellant requested reconsideration of the June 22, 2015 decision.

Appellant submitted a May 12, 2015 report in which Dr. Herman described his 

psychological evaluation on that date. Dr. Herman detailed appellant’s description of the May 9, 

2015 incident which was similar to the statement appellant submitted in connection with his 

traumatic injury claim.5 He described the psychological testing he administered to appellant 

during the office visit, noting that the testing revealed various symptoms experienced by 

appellant since May 9, 2015 including anxiety, intrusive thoughts, and flashbacks to the May 9, 

2015 incident. Dr. Herman indicated that appellant felt he could not presently return to work as 

he needed time to recover from the effects of the May 9, 2015 incident and he advised that 

appellant would be seen in psychotherapeutic sessions to help him recover from the trauma. He

diagnosed acute nonspecific reaction to stress.

In a June 18, 2015 duty status report (Form CA-17), Dr. Herman diagnosed unspecified 

acute reaction to stress (resolved) and indicated that appellant could return to his regular work on 

a full-time basis.6

By decision dated October 20, 2015, OWCP modified its June 22, 2015 decision to 

reflect that appellant’s claim for a May 9, 2015 injury was denied because he failed to submit 

sufficient medical evidence to establish a diagnosed medical condition causally related to the 

accepted May 9, 2015 employment incident. It found that Dr. Herman failed to provide a wellreasoned medical explanation, with supporting objective findings, detailing how the May 9, 2015 

incident was causally related to the diagnosed stress reaction condition. 

On March 17, 2016 appellant requested reconsideration of the October 10, 2015 decision. 

In a February 22, 2016 statement accompanying his reconsideration request, appellant further 

discussed the circumstances of the May 9, 2015 employment incident. He argued that

Dr. Herman provided a well-reasoned medical explanation, with supporting objective findings, 

detailing how the May 9, 2015 incident was causally related to the diagnosed stress reaction 

condition.

By decision dated June 14, 2016, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence/argument 

appellant submitted in support of his reconsideration request was irrelevant to the main issue of 

the case, i.e., the causal relationship between the May 9, 2015 employment incident and a 

diagnosed medical condition. 

On September 29, 2016 appellant requested reconsideration of OWCP’s October 10,

2015 decision. In a September 13, 2016 letter accompanying his reconsideration request, 

appellant indicated that he lived a relatively stress-free life outside of work, that he had a 

wonderful family, and that he enjoyed spending time doing normal everyday activities. He 

asserted that this all changed after the May 9, 2015 employment incident and that it took several 

weeks for him to be able to return to his normal everyday routine. Appellant noted, “All of this 

 

5 Appellant reported that the two aircraft came within 200 feet of vertical separation from each other and within 

1.6 miles of lateral separation.

6

It is unclear from the record whether appellant returned to work for the employing establishment around this 

time period. Appellant also resubmitted a copy of the June 18, 2015 Form CA-16 of Dr. Herman. 
4

has been documented through my physician and tests were administered that determined that my 

reactions and actions were all attributable to what happened at work.” He indicated that he was 

attaching statements from coworkers who were with him on May 9, 2015.7

By decision dated December 16, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that, because 

appellant’s September 13, 2016 request neither raised substantive legal questions nor included 

new and relevant evidence, it was insufficient to warrant a review of its October 20, 2015 

decision.

LEGAL PRECEDENT

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

to review an award for or against compensation. OWCP may review an award for or against 

payment of compensation at any time based on its own motion or on application.8 

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law; 

(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes 

relevant and pertinent new evidence not previously considered by OWCP.9 If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.10 If 

the request is timely, but fails to meet at least one of the requirements for reconsideration, 

OWCP will deny the request for reconsideration without reopening the case for review on the 

merits.11

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.12 For OWCP decisions issued on or after 

August 29, 2011, the date of the application for reconsideration is the “received date” as 

recorded in the Integrated Federal Employee’s Compensation System (iFECS).13 If the last day 

 

7 The case record does not contain any such witness statements.

8 5 U.S.C. § 8128(a).

9 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569

(issued December 9, 2008).

10 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

11 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

12 20 C.F.R. § 10.607(a).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See 

also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987 there is no 

regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987 

through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and 

must be mailed within one year of OWCP’s decision for which review is sought.
5

of the one-year time period is a Saturday, Sunday, or a legal holiday, OWCP will still consider a 

request to be timely filed if it is received on the next business day.14

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record15 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.16 

ANALYSIS 

OWCP issued a decision on October 20, 2015, and it received appellant’s request for 

reconsideration on September 29, 2016. Appellant’s request was timely filed because it was 

received within one year of OWCP’s October 20, 2015 decision.17

The issue presented on appeal is whether appellant’s September 29, 2016 request for 

reconsideration met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to 

reopen the case for further review of the merits of the claim. 

The Board finds that appellant’s request for reconsideration did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a new and relevant legal 

argument not previously considered by OWCP. 

In connection with his reconsideration request, appellant submitted a September 13, 2016 

letter in which he argued that the medical reports of Dr. Herman supported a finding that he 

sustained a stress-related condition due to the accepted May 9, 2015 employment incident, i.e., 

his observation of a loss of separation between two aircraft on that date. The Board notes that 

the underlying issue in this case is whether appellant submitted rationalized medical evidence 

sufficient to meet his burden of proof to establish injury causally related to the accepted May 9, 

2015 employment incident, and this is a medical issue which must be addressed by relevant 

medical evidence.18 A claimant may be entitled to a merit review by submitting relevant and 

pertinent new evidence, but the Board finds that appellant did not submit any such evidence in 

this case.19

 

14 Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

15 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

16 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

17 See supra notes 12 through 14.

18 See Bobbie F. Cowart, 55 ECAB 746 (2004).

19 OWCP had already considered the reports of Dr. Herman and determined that they were insufficient to 

establish appellant’s claim for a May 9, 2015 employment injury. Although the Board does not have jurisdiction 

over the merits of appellant’s claim, it should be noted that appellant submitted a Form CA-16 completed by

Dr. Herman on June 18, 2015. Where an employing establishment properly executes a Form CA-16 authorizing 

medical treatment related to a claim for a work injury, the form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the 

claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16

is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c). 
6

The Board finds that the argument contained in appellant’s September 13, 2016 letter is 

irrelevant to the main issue of this case. Appellant’s own opinion on causal relationship would 

have no bearing on the main issue of the case which, as explained above, is medical in nature and 

must be addressed by relevant medical evidence. His submission of this argument would not 

require reopening of his claim for merit review as the Board has held that the submission of 

evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.20 

Accordingly, the Board finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied 

merit review.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the December 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 18, 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

 

20 See supra note 16.