United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.K., Appellant

and

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION,

Ronkonkoma, NY, Employer

__________________________________________

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Docket No. 21-0998

Issued: December 29, 2021

Appearances: Case Submitted on the Record

Michael Cseri, for the appellant

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 12, 2021 appellant, through her representative, filed a timely appeal from a

January 22, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from OWCP’s last merit decision, dated December 6, 2019 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 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).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 16, 2019 appellant, then a 39-year-old air traffic controller, filed a traumatic injury 

claim (Form CA-1) alleging that on April 26, 2019 she experienced stress and anxiety due to 

witnessing a near mid-air collision while in the performance of duty. She stopped work on 

April 27, 2019. 

In a development letter dated May 30, 2019, OWCP informed appellant that it had not 

received any evidence in support of her claim. It advised her of the type of medical and factual 

evidence needed, and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

In an April 29, 2019 report, Dr. Bruce S. Herman, a licensed clinical psychologist, noted 

that appellant related feelings of anxiety and depression, which she attributed to an incident on 

April 26, 2019 when two planes lost separation and nearly collided. He performed a mental status 

examination and noted that she described ruminative thoughts about the incident, was unable to 

concentrate, and was having marked difficulty sleeping. Dr. Bruce also administered the Modified 

Post-traumatic Stress Disorder (PTSD) Symptom Scale and Beck Depression Inventory, detailing 

appellant’s description of frequent intrusive thoughts, recurrent nightmares, frequent crying, 

disappointment, being critical of herself, and significant depression. He diagnosed acute stress 

disorder and opined that she was experiencing marked feelings of anxiety and depression as a 

direct result of the April 26, 2019 employment incident. 

In a statement dated June 11, 2019, appellant related that on April 26, 2019 three aircraft 

were involved in multiple near collisions while attempting to avoid weather issues, and she was 

unable to communicate with one of the aircraft. She asserted that the events were uncontrolled 

and gravely dangerous and that she was constantly second guessing herself, became disoriented, 

and was unable to concentrate. After the incident, appellant was very shaken and sought 

psychological care with Dr. Herman. 

In Part B of an authorization for examination and/or treatment (Form CA-16) dated 

June 29, 2019, Dr. Herman noted a diagnosis of acute stress disorder due to an incident on 

April 26, 2019 when two aircraft lost separation. 

By decision dated July 9, 2019, OWCP accepted that the April 26, 2019 employment 

incident occurred as alleged. However, it denied appellant’s claim, finding that the medical 

evidence submitted was insufficient to establish a medical diagnosis in connection with the 

accepted April 26, 2019 employment incident. OWCP concluded, therefore, that the requirements 

had not been met to establish an injury as defined by FECA.

OWCP continued to receive evidence including a duty status report (Form CA-17) dated 

June 11, 2019 by Dr. Herman, which advised that appellant was able to return to full-duty work. 

On July 26, 2019 appellant, through her representative, requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on October 22, 2019.

By decision dated December 6, 2019, the hearing representative affirmed OWCP’s July 9, 

2019 decision.
3

On November 17, 2020 appellant, through her representative, requested reconsideration. 

In support of her request, she argued that Dr. Herman’s original April 29, 2019 narrative report 

contained a diagnosis of acute stress disorder in connection with the accepted employment 

incident. Appellant also submitted an amended version of the narrative report, where Dr. Herman

opined that, “as a direct result of her experience on April 26, 2019, [appellant] was diagnosed with 

DSM-5 F43.0, Acute Stress Disorder.”

By decision dated January 22, 2021, OWCP denied appellant’s request for reconsideration. 

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. 2

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.3

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

OWCP’s decision for which review is sought.4 If it chooses to grant reconsideration, 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

ANALYSIS

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

the merits of her claim.

2

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued 

February11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).

3

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket 

No. 18-1259 (issued January 25, 2019).

4

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

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 (iFECS). Id. at Chapter 2.1602.4b.

5

Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324 (issued 

January 21, 2020); M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued 

June 21, 2019).
4

Along with the November 17, 2020 reconsideration request, appellant submitted

Dr. Herman’s amended April 29, 2019 narrative report, which included his opinion that her 

diagnosed condition of acute stress disorder was a direct result of the accepted April 26, 2019

employment incident. As his amended report addressed the underlying issue of whether a medical 

condition had been diagnosed in connection with the accepted employment incident, the report 

constitutes relevant and pertinent new evidence that was not previously considered. Therefore, the 

Board finds that the submission of this evidence requires reopening of appellant’s claim for merit 

review pursuant to the third requirement of 20 C.F.R. § 10.606(b)(3).7

Consequently, the Board will set aside OWCP’s January 22, 2021 decision and remand the 

case for an appropriate merit decision on appellant’s claim.8

CONCLUSION

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

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

7

Supra note 3; see also J.T., Docket No. 20-1301 (issued July 28, 2021); M.J., Docket No. 20-1067 (issued 

December 23, 2020).

8 The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16authorization 

may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. 

The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the 

examination or treatment regardless of the action taken on the claim. See20 C.F.R. § 10.300(c); J.G., Docket No. 17-

1062 (issued February 13, 2018);Tracy P. Spillane, 54 ECAB 608 (2003).
5

ORDER

IT IS HEREBY ORDERED THAT the January 22, 2021 decision of the Office of 

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

consistent with this decision of the Board.

Issued: December 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board