United States Department of Labor

Employees’ Compensation Appeals Board

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B.T., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer

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Docket No. 18-1397

Issued: January 15, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 9, 2018 appellant filed a timely appeal from a January 16, 2018 nonmerit decision 

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

from OWCP’s last merit decision, dated February 2, 2017, 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 case.

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).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 3, 2016 appellant, then a 39-year-old air traffic control specialist, filed a traumatic 

injury claim (Form CA-1) alleging that, on May 3, 2016, he sustained an injury in the form of 

mental trauma due to an aircraft accident that occurred while he was in the performance of duty. 

He stopped work on May 3, 2016.

Appellant submitted a May 4, 2016 duty status report (Form CA-17) in which Dr. Bruce S. 

Herman, an attending clinical psychologist, listed the date of injury as May 3, 2016 and the 

reported history of injury as an aircraft’s emergency declaration while on appellant’s control 

frequency and the aircraft’s subsequent crash. Dr. Herman provided a diagnosis due to injury of 

acute stress disorder.

In a May 13, 2016 development letter, OWCP requested that appellant submit additional

factual and medical evidence in support of his emotional condition claim. It asked him to complete 

and return an attached questionnaire, which posed various questions about the events of 

May 3, 2016. On May 13, 2016 OWCP also requested additional information from the employing 

establishment. 

In a May 20, 2016 response, appellant indicated that, on May 3, 2016, he was controlling 

several aircraft, including one whose pilot declared an emergency due to having lost some panel 

instrumentation while flying in poor weather. He indicated that he asked the pilot several questions 

and then switched control of the aircraft to another controller. Appellant’s supervisor later 

requested that appellant call out to the aircraft that had declared an emergency because it had 

dropped off the radar and it was believed that it might have crashed. Appellant indicated that his 

supervisor relieved him from his position as soon as another controller was available. He later 

learned that the aircraft in question had crashed and that all three people onboard had died. 

Appellant reported being very sad and having a helpless feeling after learning of the fatal accident. 

In a May 16, 2016 statement, appellant’s immediate supervisor discussed appellant’s 

control of the aircraft that declared an emergency on May 3, 2016, and he indicated that appellant 

was “completely unfazed” while controlling the aircraft. He noted that, after the aircraft was 

outside of appellant’s field of view, the aircraft was lost from radar. Appellant then requested that 

he be relieved from his position and the supervisor secured a replacement controller and relieved 

appellant. The supervisor expressed his opinion that appellant appeared to be abusing the workers’

compensation system.

By decision dated June 15, 2016, OWCP denied appellant’s claim for an employmentrelated emotional condition. It accepted the occurrence of an employment incident on May 3, 

2016 with respect to the aircraft accident that occurred on that date. OWCP noted that it was 

accepted that appellant controlled an aircraft on May 3, 2016 that declared an emergency and then 

handed off control of the aircraft to another controller. Appellant later learned on the same day 

that the aircraft had crashed and that all three people onboard the aircraft had died. However, 

OWCP further found that he failed to submit medical evidence sufficient to establish causal 

relationship between a diagnosed medical condition and the accepted May 3, 2016 employment 

incident.
3

On December 12, 2016 appellant requested reconsideration of OWCP’s June 15, 2016 

decision.

Appellant submitted additional medical evidence in support of his reconsideration request, 

including a May 4, 2016 report from Dr. Herman who discussed his treatment of appellant on that 

date. Dr. Herman reported the findings of psychological testing he conducted in his office on 

May 4, 2016. He discussed the circumstances of the May 3, 2016 aircraft accident and detailed 

appellant’s reported symptoms, including his ruminating about the events of May 3, 2016, 

difficulties with sleeping, and feelings of guilt that he could not prevent the accident. Dr. Herman 

indicated that appellant’s current diagnosis was acute stress disorder.

By decision dated February 2, 2017, OWCP denied modification of its June 15, 2016 

decision. It determined that the new medical evidence submitted by appellant failed to establish 

causal relationship between a diagnosed medical condition and the accepted May 3, 2016 

employment incident. 

On January 8, 2018 appellant requested reconsideration of OWCP’s February 2, 2017 

decision. In a January 2, 2018 letter, he argued that the medical evidence of record supported his 

claim that he sustained an emotional condition due to the circumstances surrounding the fatal 

aircraft accident which occurred on May 3, 2016.

In support of his reconsideration request, appellant resubmitted a copy of Dr. Herman’s 

May 4, 2016 report. He also submitted a June 8, 2017 statement in which his immediate supervisor 

provided clarification of the statement he had provided in May 2016. The supervisor advised that 

he wished to retract the portions of his May 16, 2016 statement in which he asserted that appellant 

was unaffected by the events of May 3, 2016 and that he appeared to be abusing the workers’

compensation system.2

By decision dated January 16, 2018, 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 

submitted by appellant in support of his reconsideration request was irrelevant, immaterial, or 

repetitious.

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.3

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 

 

2 Appellant also submitted a newspaper article about the May 3, 2016 aircraft accident.

3 5 U.S.C. § 8128(a).
4

relevant and pertinent new evidence not previously considered by OWCP.4If OWCP determines 

that at least one of these requirements is met, it reopens and reviews the case on its merits.5 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.6

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.7 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 Employees’ Compensation System (iFECS).8 If the last day of the oneyear 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.9

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

evidence or argument already in the case record10 and the submission of evidence or argument ,which 

does not address the particular issue involved does not constitute a basis for reopening a case.11 

ANALYSIS

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). 

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. He argued that the medical evidence of record supported his claim that he 

sustained an emotional condition due to the circumstances surrounding the fatal aircraft accident,

which occurred on May 3, 2016. Appellant had assisted an aircraft, which reported an emergency 

situation and he later learned, after handing off control of the aircraft to another controller, that the 

aircraft had crashed and all three people onboard had died.

The Board notes that OWCP accepted that appellant’s involvement at work with the aircraft 

that crashed on May 3, 2016 constituted a compensable employment factor. The underlying issue 

 

4 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-

1569 (issued December 9, 2008).

5

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

6

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

7

Id. at § 10.607(a).

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

9

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

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

11 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
5

in this case, therefore, is whether appellant submitted medical evidence sufficient to establish 

causal relationship between a diagnosed medical condition and the accepted May 3, 2016 

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

evidence.12

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.13 In 

support of his reconsideration request, appellant resubmitted a copy of a May 4, 2016 report of

Dr. Herman, an attending clinical psychologist. The resubmission of this report does not require 

reopening of appellant’s claim for review of the merits of the claim because OWCP has already 

considered Dr. Herman’s May 4, 2016 report and determined that it failed to establish appellant’s 

claim for an employment-related emotional condition. The Board has held that the submission of 

evidence or argument which repeats or duplicates evidence or argument already in the case record 

does not constitute a basis for reopening a case.14 

Appellant submitted a June 8, 2017 statement in which his immediate supervisor provided 

clarification of the statement he had provided in May 2016. He also submitted a newspaper article 

about the May 3, 2016 aircraft accident. The submission of this factual evidence does not require 

reopening of appellant’s claim for review of the merits of the claim because this evidence is not 

relevant to the underlying issue of the present case. As noted, the underlying issue of the present 

case is medical in nature, i.e., whether appellant submitted medical evidence sufficient to establish 

causal relationship between a diagnosed medical condition and the accepted May 3, 2016 

employment incident. 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.15 

The Board accordingly 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).

 

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

13 See supra note 4.

14 See supra note 10.

15 See supra note 11.
6

ORDER

IT IS HEREBY ORDERED THAT the January 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board