United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

OAKHURST OUTPATIENT CLINIC, 

Oakhurst, CA, Employer

__________________________________________

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Docket No. 19-0364

Issued: July 3, 2019

Appearances: Case Submitted on the Record

Sara Kincaid, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 10, 2018 appellant, through counsel, filed a timely appeal from a June 14, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated March 21, 2017, which became final after 30 

days of issuance and is not subject to further review.

2

 As there was no merit decision by OWCP

within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation 

 

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 20 C.F.R. § 501.6(d); see A.F., Docket No. 18-0645 (issued October 26, 2018).
2

Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits 

of this case. 

ISSUE

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

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

FACTUAL HISTORY

This case has previously been before the Board.

4

 The facts and circumstances of the case 

as set forth in the prior decision is incorporated herein by reference. The relevant facts are as 

follows.

On January 21, 2014 appellant, then a 54-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on January 13, 2014 she vomited twice, lacked focus, became confused, 

and experienced headache and dizziness due to her exposure to toxic fumes from a malfunctioning 

heating unit at work. She claimed that toxic exhaust fumes were emitted into her office, 

examination rooms, and nearby areas of a clinic. 

By decision dated February 17, 2015, OWCP denied the claim, finding that the evidence 

of record was insufficient to establish that the January 13, 2014 incident occurred at work, as 

alleged. It noted that the employing establishment submitted evidence to establish that appellant 

was not exposed to carbon monoxide or toxic gas. Further, that Dr. Gerald B. Levine, a Boardcertified internist specializing in pulmonary diseases and OWCP referral physician, found no 

factual or objective confirmation of a diagnosis of carbon monoxide poisoning. Appellant, through 

counsel, subsequently requested reconsideration, however, by decisions dated September 11, 2015 

and May 4, 2016, OWCP denied modification of its prior decision. 

Appellant, through counsel, appealed to the Board on October 17, 2016. By decision dated 

March 21, 2017, the Board affirmed the May 4, 2016 merit decision, finding that appellant had 

failed to provide evidence sufficient to establish that the January 13, 2014 incident occurred at 

work, as alleged. The Board noted that, although appellant’s statement that she sustained a 

traumatic injury on January 13, 2014 was entitled to great weight, it was contradicted by the 

employing establishment’s evidence and the medical evidence of record. 

On March 20, 2018 appellant, through counsel, requested reconsideration, contending that 

the additional factual and medical evidence submitted were sufficient to establish that appellant

sustained an injury due to her exposure to toxic fumes from a malfunctioning heating unit at work 

on January 13, 2014. 

 

3 5 U.S.C. § 8101 et seq.

4 Docket No. 17-0056 (issued March 21, 2017).
3

A heating, ventilation, and air conditioning (HVAC) service order invoice dated 

January 28, 2013 from Wilkins Enterprises indicated, among other things, that a heat exchange 

had been replaced at the employing establishment. 

An undated and unsigned employing establishment incident report noted that appellant 

noticed “a bad odor” when she arrived at the clinic on the morning of January 13, 2014. She 

reported the odor to a supervisor who immediately shut off the HVAC units and opened all of the 

windows in the clinic. Appellant was assigned to a room furthest away from the odor and was 

permitted to go outside to get fresh air. A propane company was called to determine whether there 

were any leaks in the heating system. No leaks were found and it was determined that the odor 

was from a soot buildup in a heating unit. The odor completely cleared from the clinic around 

noon. 

In a June 9, 2016 transcript of his deposition, John Sunderson, a certified physician 

assistant, addressed his January 24, 2014 notes in which he diagnosed toxic effect of carbon 

monoxide and advised that he did not specifically find a causal correlation between the alleged 

January 13, 2014 incident and appellant’s current symptoms. 

Discharge summaries dated January 21, 2017 from Dr. Archana Pasupleti, a Boardcertified neurologist, and Dr. Robert C. Knowlton, a neurologist, noted a history that appellant 

experienced a strong odor of car exhaust at her workplace on January 13, 2014. Both physicians 

provided an assessment of nonepileptic spells and headache. 

In progress notes dated June 7 and 6, 2017, Dr. David C. Perry, a Board-certified 

neurologist, indicated that appellant presented for a follow-up of her cognitive symptoms, 

headache, gait, and movement changes. He provided an impression that she had multiple systemic 

and neurologic symptoms following self-reported workplace exposure on January 13, 2014. 

Largely, appellant reported these symptoms as unchanged. Dr. Perry noted that her cognitive 

symptoms largely reflected attention and concentration difficulty and her observable speech and 

movement findings had improved. 

In a medical report dated November 20, 2017, Dr. James Craner, Board-certified in 

occupational medicine, noted a history that appellant noted a noxious “nasty” exhaust odor as she 

walked into her office building on January 13, 2014. He diagnosed occupational acute carbon 

monoxide toxicity with delayed-onset encephalopathy. Dr. Craner opined that this poisoning and 

its sequelae were directly caused by a malfunctioning and/or improperly designed or installed 

propane-fired heating system. 

Appellant resubmitted a January 20, 2014 statement by her coworker, M.F., indicating that 

he developed carbon monoxide poisoning due to his exposure to exhaust fumes at work on 

January 13, 2014; a HVAC service order invoice dated January 13, 2014 from Wilkins Enterprises 

indicating that, an air conditioner was plugged with soot, a heat exchange was replaced, and burner 

operation was checked; Mr. Sunderson’s January 24, 2014 notes; and Dr. Levine’s January 25, 

2015 second opinion report. 
4

OWCP, by decision dated June 14, 2018, denied appellant’s March 20, 2018 request for 

reconsideration of the merits of her claim, finding that the evidence submitted was insufficient to 

warrant merit review. 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.5 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.6 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.7

Upon receipt of a timely application, OWCP exercises its discretion in accordance with the 

guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which 

provides that a claimant may obtain review of the merits of his or her written application for 

reconsideration, including all supporting documents, sets forth arguments and contain evidence 

which either: (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.

8

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP

without review of the merits of the claim.9

ANALYSIS

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

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

Initially, the Board notes that findings made in prior Board decisions are res judicata absent 

any further review by OWCP under section 8128 of FECA. The Board will therefore not review 

the evidence addressed in the prior appeal.10

 

5 This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.607.

7 C.C., Docket No. 18-0316 (issued March 14, 2019); id. at § 10.607(a). 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. Id. at Chapter 2.1602.4b.

8

Id. at § 10.606(b)(3).

9

Id. at § 10.608(b).

10 See C.B., Docket No. 19-0175 (issued May8, 2019); M.M., Docket No. 18-1366 (issued February 27, 2019).
5

Appellant’s timely 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. Consequently, she was not entitled to a review of the merits 

based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

The Board further finds that appellant did not submit relevant and pertinent new evidence

not previously considered by OWCP. The underlying issue in this case is whether appellant 

submitted sufficient factual evidence to establish that an employment incident occurred on 

January 13, 2014, as alleged. In support of her reconsideration request, she submitted an

employing establishment incident report. However, this incident report, while new, is not relevant

because it does not indicate that appellant was exposed to toxic fumes from a malfunctioning 

heating unit. The report noted that a propane company had inspected the heating system and 

determined that the odor reported by her was from soot buildup in the heating system. The Board 

has held that the submission of evidence which does not address the particular issue involved does 

not constitute a basis for reopening a case.11 Thus, the Board finds that this report is insufficient

to require OWCP to reopen the case for merit review.

12

The reports of Drs. Pasupleti, Knowlton, Perry, and Craner, while new, contained a history 

of injury as communicated by appellant, however, the physicians failed to provide factual 

corroboration of appellant’s exposure to toxic fumes at work on January 13, 2014. This is 

particularly important in this case as OWCP found, and the Board previously affirmed, that she

failed to establish that the January 13, 2014 incident at work, as alleged. The Board finds, 

therefore, that these reports are insufficient to require OWCP to reopen the case for merit review. 

The remaining evidence of record, while new, is not relevant. The January 28, 2013 HVAC 

service order invoice from Wilkins Enterprises predates the alleged January 13, 2014 employment 

incident. Mr. Sunderson, in a June 9, 2016 deposition, failed to provide a factual history of 

appellant’s injury.

13

 For these reasons, the Board finds that this evidence is insufficient to reopen 

the case for merit review. 

Appellant resubmitted M.F.’s January 20, 2014 statement, a January 13, 2014 HVAC 

service order invoice from Wilkins Enterprises, Mr. Sunderson’s January 24, 2014 notes, and

Dr. Levine’s January 25, 2015 second opinion report. The Board finds that the submission of this 

evidence did not require reopening her case for merit review because it was previously of record 

and considered by OWCP in its February 17, 2015 decision and the Board in its March 21, 2017 

decision.14 

 

11 See S.C., Docket No. 18-0814 (issued January 18, 2019); David J. McDonald, 50 ECAB 185 (1998).

12 See A.J., Docket No. 10-1537 (issued February 9, 2011).

13 Supra note 11.

14 See G.M., Docket No. 17-0345 (issued May 1, 2017); C.N., Docket No. 08-1569 (issued December 9, 2008).
6

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

15

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 3, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 See supra note 8 at § 10.608; see also D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 

(issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).