United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

PERRY POINT VA MEDICAL CENTER, 

Perry Point, MD, Employer

__________________________________________

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Docket No. 21-0716

Issued: December 10, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On April 12, 2021 appellant, through counsel, filed a timely appeal from a February 25, 

2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards assigned Docket No. 21-0716.2

On December 30, 2019 appellant, then a 60-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on December 26, 2019 she sustained a left ankle sprain when detangling 

an oxygen tube while in the performance of duty. She stopped work on December 26, 2019 and 

returned to work on December 30, 2019.

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 The Board notes that following the February 25, 2021 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

In support of her claim, appellant submitted medical evidence from a physician assistant. 

In a January 8, 2020 development letter, OWCP advised appellant that the evidence of 

record was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence needed to establish her claim and afforded her 30 days to submit the necessary evidence.

OWCP subsequently received a December 26, 2019 urgent care note by Dr. Charisse C. 

Davenport, a Board-certified internist, who performed an examination and diagnosed a sprain of 

other ligament of the left ankle.

In a January 23, 2020 response to OWCP’s questionnaire, appellant related that, while 

assisting a patient on December 26, 2019, she reached across his bed and felt a severe pain in her 

left heel, ankle and calf.

By decision dated February 14, 2020, OWCP denied appellant’s traumatic injury claim 

finding that the evidence was insufficient to establish that the diagnosed left ankle condition was 

causally related to the accepted December 26, 2019 employment incident.

By letter dated and received on February 5, 2021 appellant, through counsel, requested 

reconsideration of OWCP’s February 14, 2020 decision. In support of the request, she submitted 

reports of Dr. Alan J. Kleiman, a podiatric surgeon, dated July 20 and August 21 and 23, 2020;

Dr. Lemeneh Tefera, an emergency medicine specialist, dated October 5, 2020; and Dr. JenniferR. 

Seifert, a podiatrist Board-certified in foot and ankle surgery, dated October 25, 2020. 

On February 11, 2021 appellant, through counsel, indicated that he was submitting 

additional evidence “in support of the pending [r]equest for [r]econsideration.” He submitted a 

letter dated February 1, 2021 by Dr. Seifert outlining treatment she provided to appellant for left 

ankle injuries which had occurred as the result of a work-related incident on December 26, 2019 

and a nonwork-related incident on October 5, 2020. Also attached to the letter was an undated and 

unsigned summary of events and treatment for both incidents. OWCP also received reports of 

various diagnostic studies. 

By decision dated February 25, 2021, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error. 

It indicated that her request for reconsideration was “received on February 19, 2021.”

The Board has duly considered this matter and finds that OWCP improperly determined 

that appellant’s request for reconsideration was untimely filed.3

By letter dated February 5, 2021, appellant’s counsel requested reconsideration of the

February 14, 2020 decision; outlined various arguments; and enclosed medical records not 

previously considered. OWCP noted a received date for the letter and enclosures in the Integrated 

Federal Employees’Compensation System (iFECS) of February 5, 2021. The Board finds that the 

3 Order Remanding Case, J.C., Docket No. 20-1360 (issued March 12, 2021); I.A., Docket No. 19-1910 (issued 

September 29, 2020); Order Remanding Case, D.F., Docket No. 20-0267 (issued June29, 2020); E.S., Docket No. 

17-0698 (issued July 14, 2017).
3

February 5, 2021 letter, received by OWCP on February 5, 2021, constituted a timely request for 

reconsideration of OWCP’s February 14, 2020 merit decision.4

As the February 5, 2021 request for reconsideration was received within one year of 

OWCP’s February 14, 2020 merit decision,5it was timely filed.

6

 Therefore, OWCP should have 

applied the standard applicable to timely reconsideration requests as set forth in 20 C.F.R. 

§ 10.606(b)(3), rather than the more stringent clear evidence of error standard for untimely 

reconsideration requests set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the 

evidence submitted in support of appellant’s reconsideration request under the more stringent clear 

evidence of error standard which applies to untimely filed reconsideration requests, the Board will 

remand the case for review of this evidence under the proper standard of review for timely 

reconsideration requests.7

Thus, the Board finds that this case must be remanded for proper adjudication and 

application of the appropriate standard of review, to be followed by an appropriate decision. 

Accordingly,

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

5

Id.; R.T., Docket No. 20-0298 (issued August 6, 2020).

6

J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June6, 2017); C.B., Docket 

No. 13-1732 (issued January 28, 2014).

7 Order Remanding Case, L.N., Docket No. 19-0170 (issued August21, 2019). 
4

IT IS HEREBY ORDERED THAT the February 25, 2021 decision of the Office of 

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

consistent with this order of the Board.

Issued: December 10, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board