United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

CONSUMER FINANCIAL PROTECTION 

BUREAU, SOUTHWEST REGION, 

Jacksonville, FL, Employer

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Docket No. 19-0696

Issued: September 25, 2019

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

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 February 13, 2019 appellant, through counsel, filed a timely appeal from a January 4, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from the last merit decision, dated October 2, 2017, to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction over the merits of this case.

 

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 5 U.S.C. § 8101 et seq.
2

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 November 4, 2015 appellant, then a 44-year-old financial institution examiner, filed an 

occupational disease claim (Form CA-2) alleging that his preexisting hypertrophic obstructive 

cardiomyopathy (HOCM) with ventricular tachycardia (VT) worsened due to stress from his 

federal employment. He noted that he first became aware of his claimed condition on 

November 23, 2011, and first realized its relationship to his federal employment on 

October 30, 2015. 

In an undated statement accompanying appellant’s claim form, appellant explained that his 

job entailed traveling over 50 percent of the time, and serving as a union president which caused 

him to be put under Congressional and public scrutiny with little or no protection from the 

employing establishment.

In a development letter dated November 24, 2015, OWCP requested that appellant submit 

additional evidence in support of his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. In a separate letter of even date, 

OWCP also requested additional information from the employing establishment. It afforded both 

appellant and the employing establishment 30 days to respond.

In a statement dated December 19, 2015, appellant responded to OWCP’s development 

questionnaire. He asserted that he began his position in August 2011 and that it required travel 

with little or no supervision, demanding deadlines, and he had no training until 2014. Appellant 

began working for the union with partial official time on March 23, 2013 and noted from 

April 2015 through October 2015 he was assigned 100 percent official time to work for the union. 

He reported that in his capacity as union president he was frequently required to testify before 

Congress. Appellant alleged that he was accused of mistreating women, being a dictator, 

compared to Hitler, threatened with physical violence, and chastised in the press. He alleged a 

hostile work environment. Appellant also asserted that he had been diagnosed with post-traumatic 

stress disorder (PTSD). He noted that he had filed an Equal Employment Opportunity (EEO) 

complaint due to sexual orientation discrimination, that he was never promoted while he was union 

president, and that there was an ongoing investigation regarding pay at the employing 

establishment. Appellant stopped work in October 3, 2015 and was hospitalized.

On December 22 and 23, 2015 appellant provided additional factual and medical evidence

in support of his occupational disease claim, including a November 6, 2013 e-mail informing 

coworkers that the employing establishment had granted him 100 percent official time for his 

service as union president.

On October 4, 2015 the employing establishment approved leave under the Family Medical 

Leave Act (FLMA) including from October 5 through November 6, 2015 and November 9 through 
3

December 10, 2015. Appellant also used annual leave from December 14, 2015 through 

January 4, 2016.

On May 26, June 22, October 3, and 24, 2011 Dr. Diane M. Cordero, a cardiologist, 

diagnosed HOCM. On June 24, 2011 appellant underwent placement of an implantable 

cardioverter defibrillator (ICD). On October 3, 2015 he was hospitalized due to chest pain and

Dr. Todd Boring, Board-certified in emergency medicine, diagnosed VT.

In a note dated October 13, 2015, Dr. Cordero diagnosed severe hypertrophic 

cardiomyopathy and sustained VT. She noted that appellant was unable to travel or be under stress 

and that he could not drive. In an undated report, Dr. Cordero opined that appellant’s work 

environment contributed to the degradation of his HOCM with VT. She specifically mentioned 

appellant’s increased stress levels due to travel, tight deadlines, demanding work requirements, 

and being in the spotlight under public scrutiny as contributing to his rapid increased heartbeats 

and stress levels within his heart. Dr. Cordero recommended that appellant reduce stress to prevent 

a recurrence of VT. She opined that appellant could not tolerate his work environment on any 

level and that reduction in stress and lifestyle changes were necessary to avoid a potential relapse,

which appellant was unlikely to survive. On December 7, 2015 Dr. Cordero again noted 

appellant’s stressful work and work-required travel. She opined that this exacerbated appellant’s 

cardiac condition and that he was unable to work due to the nature of his illness.

By decision dated February 17, 2016, OWCP denied appellant’s claim finding that he had 

not established causal relationship between his accepted employment factors and his diagnosed 

condition.

On March 1, 2016 appellant, through counsel, requested an oral hearing from an OWCP 

hearing representative.

By decision dated September 1, 2016, OWCP’s hearing representative set aside OWCP’s 

February 17, 2016 decision and remanded the case for further adjudication of the factual aspect of 

appellant’s claim, specifically a determination of whether he had substantiated a compensable 

factor of employment as causing or contributing to his diagnosed condition.

In a development letter dated September 14, 2016, OWCP requested that the employing 

establishment address the employment events implicated by appellant. It afforded 30 days for a 

response.

In a response dated November 16, 2016, the employing establishment indicated that 

appellant’s decision to testify before Congress on June 25, 2015 was voluntary and not part of his 

official duties. It further noted that appellant took his story of alleged discrimination to the public, 

to Congress, and to the press and that it had not commented on his story. The employing 

establishment indicated that appellant’s tenure as union president was from May 22, 2013, when 

he was appointed interim president, until October 8, 2015 when he was not reelected. While 

appellant officially remained in his examiner position, and was assigned work, he did not perform 

this work. Instead, appellant requested FMLA leave beginning October 15, 2015 and informed 

the employing establishment on December 22, 2015 that he would not be returning to work due to 

his medical conditions. Appellant requested disability retirement effective May 1, 2016. The 
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employing establishment also provided appellant’s position description, which provided that the 

position required extensive travel. It noted travel was required 75 percent of the time or more than 

11 nights per month.

On December 13, 2016 appellant responded to the employing establishment’s assertions 

and alleged that the employing establishment had commented publically on press reports about 

him and that Congress had required him to testify as the union president. 

By decision dated December 30, 2016, OWCP denied appellant’s occupational disease 

claim finding that he had not substantiated a compensable factor of employment.

On January 24, 2017 appellant, through counsel, requested an oral hearing from an OWCP 

hearing representative. A hearing was held on July 18, 2017.

In an additional narrative statement dated August 1, 2017, appellant attributed his condition 

to his job duties of working in financial institutions, writing and scrutinizing work papers, as well 

as his union duties of filing complaints for employees, negotiating new performance standards, 

and reviewing other employees’ complaints. He further alleged that testifying before Congress 

was one of his job duties on official time and that the employing establishment paid for his travel. 

Appellant asserted that his contact with the press was not voluntary, but was in response to the 

employing establishment’s attempts to undermine his integrity in the press.

By decision dated October 2, 2017, OWCP’s hearing representative affirmed the

December 30, 2016 OWCP decision with modification, finding that appellant had established the 

following compensable factors of employment: (1) that he worked full time as an examiner from 

August 2011 until March 2013 and part time from March 2013 to January 2014 while union 

president; (2) that appellant traveled extensively while working as an examiner spending 75 

percent of his time in travel status from March 2012 to March 2013; and (3) that appellant’s 

performance of solely representational functions during his service as a union president from 

March 2014 to October 2015 was also a compensable work factor. OWCP’s hearing 

representative found, however, that the medical evidence of record did not establish causal 

relationship between appellant’s diagnosed HOCM with VT and his accepted employment factors.

In a report dated December 6, 2017, Dr. Cordero repeated appellant’s diagnosis of HOCM 

with malignant VT. She noted that this condition was related to stress. Dr. Cordero opined that 

information from appellant’s ICD showed that from 2012 when he began work at the employing 

establishment until his ventricular storm in October 2015 appellant’s incidences of sustained VT 

significantly increased over the four years of his employment at the employing establishment. She 

opined that the worsening of appellant’s cardiac condition over time was due to work factors 

including travel which involved carrying up to 50 pounds on 2 flights twice a week, his work as 

an examiner in the financial regulatory sector, and his work as union president. Dr. Cordero also 

opined that appellant had severe anxiety, PTSD, and other mental conditions as a result of his ICD 

firing in October 2015. She noted that near-death experiences, combined with the fact that 

appellant was awake during the episodes of ICD firings, resulted in these conditions. Dr. Cordero 

concluded that appellant’s compensable work factors directly related and were the cause of the 

degradation of appellant’s condition to the point that he could no longer work. She opined that his 
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work and compensable work factors caused his condition to deteriorate to the point that he was on 

the verge of death.

On October 2, 2018 appellant, through counsel, requested reconsideration of the October 2, 

2017 OWCP hearing decision. Counsel contended that Dr. Cordero’s December 6, 2017 report 

was sufficient to establish his occupational disease claim. In the alternative, he contended that the 

medical evidence submitted was sufficient to require referral to a second opinion physician.

By decision dated January 4, 2019, OWCP denied appellant’s request for reconsideration

of the merits of his claim.

LEGAL PRECEDENT

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

to review an award for or against compensation. The Secretary of Labor may review an award 

for or against compensation at any time on his own motion or on application.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (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.4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 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.7

 

3 5 U.S.C. § 8128(a); L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued 

October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4 20 C.F.R. § 10.606(b)(3); L.D., id.; L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the received date in the integrated Federal Employees Compensation 

System. Chapter 2.1602.4b.

6

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

7

Id. at § 10.608(b); O.P., Docket No. 19-0445 (issued July 24, 2019); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
6

In support of a request for reconsideration, an appellant is not required to submit all 

evidence, which may be necessary to discharge his or her burden of proof.8 He or she needs only 

to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an 

OWCP decision denying merit review, the function of the Board is to determine whether OWCP 

properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for 

reconsideration and any evidence submitted in support thereof.10

ANALYSIS

The Board finds that OWCP improperly 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. He continued to argue that the medical evidence of record supported his claim that he 

sustained an emotional condition resulting in aggravation of his underlying cardiac conditions. 

Thus, appellant is not entitled to a review of the merits of his claim based on the first and second 

above-noted requirements under 20 C.F.R. § 10.606(b)(3).

OWCP accepted three compensable factors of his federal employment. The underlying 

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

causal relationship between his accepted employment factors and his diagnosed medical condition. 

This is a medical issue which must be addressed by relevant medical evidence.11

In support of his request for reconsideration appellant submitted an additional report from

Dr. Cordero dated December 6, 2017. Dr. Cordero repeated appellant’s diagnosis of HOCM with 

VT and again attributed this condition to stress due to the three accepted factors. She offered new 

information that appellant’s ICD showed that from 2012, when he began work at the employing 

establishment, until his ventricular storm in October 2015 his incidences of sustained VT 

significantly increased over the four years of his employment.

The Board finds that the findings and opinions expressed in Dr. Cordero’s December 6, 

2017 report constitute relevant and pertinent new evidence not previously considered by OWCP. 

These notes directly address the basis upon which OWCP denied his claim, the causal relationship 

between his diagnosed condition, and his accepted factors of employment. Appellant’s request for 

reconsideration met one of standards for obtaining merit review of his case.12

 

8 D.P., Docket No. 19-0001 (issued June 13, 2019); S.M., Docket No. 18-1158 (issued January 16, 2019); J.F.,

Docket No. 17-1508 (issued March 28, 2018).

9

Id.; Mark H. Dever, 53 ECAB 710 (2002).

10 Supra note 8; Annette Louise, 54 ECAB 783 (2003).

11 B.T., Docket No. 18-1397 (issued January 15, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

12 D.P., Docket No. 19-0001 (issued June 13, 2019).
7

The Board will therefore set aside OWCP’s January 4, 2019 decision and remand the case 

for a merit review of appellant’s claim. After such further development of the evidence as deemed

necessary, OWCP shall issue an appropriate merit decision.

CONCLUSION

The Board finds that this case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the January 4, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: September 25, 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