United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.L., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS LOGISTICS MAINTENANCE,

Barstow, CA, Employer

__________________________________________

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Docket No. 21-0304

Issued: July 13, 2021

Appearances: Case Submitted on the Record

Steven E. Brown, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 21, 2020 appellant, through counsel, filed a timely appeal from a July 10, 

2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated July 19, 2018, 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 determined that appellant’s request for 

reconsideration was untimely filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY

On June 8, 2018 appellant, then a 59-year-old retired sandblaster and parts attendant, filed 

an occupational disease claim (Form CA-2), alleging that he developed arsenic poisoning due to 

factors of his federal employment, including the effects and process of sandblasting. He noted that 

he first became aware of his condition and realized its relation to his federal employment on 

April 21, 2018. On the reverse side of the claim form, the employing establishment noted that 

appellant medically retired, effective January 5, 2015.3

In an April 19, 2018 summary report, Dr. Donovan Anderson, a family medicine specialist, 

diagnosed diabetes, atypical chest pain, nephrotoxicity, nephropathy induced by heavy metals, 

toxic effect of unspecified metal, heavy metal exposure, hypertension, chronic silicosis, and 

cadmium poisoning.

Appellant also submitted an April 20, 2018 laboratory urine test result, which revealed

exposure to arsenic.

Dr. Anderson noted in an April 25, 2018 medical report that, on examination, appellant 

exhibited pelvic, abdominal, and back pain.

In an undated statement, the employing establishment contended that appellant previously 

filed a Form CA-2 for arsenic poisoning on March 15, 2012, which was denied. It alleged that he 

told different stories to different agency representatives and filed incomplete forms that potentially

created confusion.

In a May 11, 2018 medical report, Dr. Anderson noted that appellant had elevated levels 

of arsenic and appellant complained that his bones were hurting all over the body.

In an undated attending physician’s report (Form CA-20), Dr. Anderson indicated that 

appellant worked at the employing establishment from 2003 to 2014 and had no history of 

preexisting disease. He diagnosed arsenic poisoning and opined that it was “possible” that his 

condition was caused or aggravated by an employment activity.

 

3 The record reflects that appellant previously filed an occupational disease claim on June 13, 2006 alleging 

exposure to cadmium (lead) under OWCP File No. xxxxxx780. By decision dated August 11, 2006, OWCP denied 

his claim, finding that the f medical evidence was insufficient to establish causal relationship between the claimed 

condition and the accepted federal employment exposure. Appellant also previously filed an occupational disease 

claim on March 9, 2012 for exposure to chemical substances, causing upper respiratory and other conditions, under 

OWCP File No. xxxxxx318. By decision dated September 6, 2012, OWCP denied his claim, finding that, as he failed 

to establish the employment exposure, he did not sustain an injury in the performance of duty, as alleged. Appellant’s 

claims have not been administratively combined.
3

In a June 11, 2018 development letter, OWCP informed appellant of the deficiencies of his 

claim. It advised him of the type of factual and medical evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary 

evidence.

In a December 2, 2012 Form CA-20, an unidentifiable healthcare provider indicated that 

appellant was exposed to cadmium and dusts from sandblasting.

On February 4, 2013 Dr. David Bland, a Board-certified pulmonologist, completed a Form 

CA-20 and noted that appellant was exposed to sandblasting dusts. He reported that appellant 

experienced acneiform rash, shortness of breath, and a burning sensation in nose. Dr. Bland 

diagnosed skin, eye, and nose irritation due to exposure to sandblasting products. In CA-20 forms 

dated July 15, 2014 and September 3, 2015, Dr. Bland again noted that appellant experienced 

acneiform rash, shortness of breath, and burning chest and lungs due to exposure to sandblasting

dusts.

A February 12, 2017 medical report by Dr. William Rappoport, Board-certified in 

cardiovascular disease and internal medicine, noted that appellant previously worked as a 

sandblaster for 13 years with the employing establishment, where he worked on a large variety of 

equipment including vehicles, engines, and artillery. Appellant reported that he worked in a poorly 

ventilated area with a compressor that was assembled improperly for approximately five years and 

that his health problems began three to four years prior. Dr. Rappoport noted that appellant had 

known about his pulmonary issues since 2011 and his previous physician thought that cadmium, 

toxins and heavy metals could be the cause of his health conditions. He reported that appellant 

had metallic taste in his mouth for the past few years and experienced burning pain in his feet and 

intermittent sharp pain in his lower extremity up to his chest. Dr. Rappoport conducted a physical 

examination and diagnosed chest pain, benign essential hypertension, hyperlipidemia, chronic 

obstructive pulmonary disease, carotid artery stenosis, chronic kidney disease, diabetes, abdominal 

mass, and obesity.

In a March 15, 2017 medical report, Dr. Kahroba Jahan, Board-certified in cardiovascular 

disease and internal medicine, indicated that appellant had a history of heavy metal toxicity from 

occupational exposure in 2004, which resulted in tubulointerstitial nephropathy. She noted that 

appellant requested a cardiac biopsy to detect cadmium levels in his heart.

In a May 11, 2018 letter, Dr. Anderson noted that appellant was seen for possible cadmium 

exposure from work. He indicated that appellant might have inhaled some suspected heavy molds 

while working as a sandblaster for over 10 years. Dr. Anderson noted that a heavy metal screen 

test revealed no cadmium exposure but demonstrated elevated levels of arsenic. He explained that 

appellant was never tested for arsenic exposure until the April 19, 25, and May 11, 2018

evaluations.

In a June 19, 2018 statement, appellant alleged that his supervisors engaged in improper 

behavior and needed to be investigated. He contended that the employing establishment 

improperly removed employees’ documents and produced unlawful working conditions, creating

improper exposure to metals, leads, and unclean oxygen. Appellant asserted that his cadmium 

level was extremely high.
4

In a June 20, 2018 medical report, Dr. Anderson indicated that appellant was no longer 

able to work due to exposure to variety of heavy metals, including cadmium and arsenic. He 

opined that appellant’s exposure to cadmium and arsenic occurred when he worked at the 

employing establishment. Dr. Anderson indicated that appellant’s work environment was 

improperly ventilated and that he breathed in a lot of dusts. He also noted that removing paint 

from metals was appellant’s daily job. Dr. Anderson found that there was no evidence of excessive 

arsenic level previously reported and that appellant was unaware of high levels of arsenic.

In a June 28, 2018 statement, appellant asserted that he previously received no medical 

treatment for arsenic poisoning.

By decision dated July 19, 2018, OWCP denied appellant’s occupational disease claim,

finding that it was untimely filed. It found that appellant’s claim had not been filed within the 

three years filing requirement of the date of last exposure or from the perspective of “latent”

disability, noting that the similarity of the current claim to appellant’s prior claims in OWCP File 

Nos. xxxxxx780 and xxxxxx318 provided further evidence that appellant was aware of his illness. 

OWCP also found that there was no evidence to support exceptional circumstances to allow for a 

waiver of the timely filing requirement.

In an undated statement, appellant contended that the employing establishment engaged in 

unlawful conduct including removing employees’ documents and falsifying his document.

On July 9, 2019 appellant requested reconsideration and submitted additional evidence. 

In a January 23, 2019 report, Dr. Muhammad A. Nayer, a Board-certified neurologist, 

diagnosed paresthesia of skin, idiopathic progressive neuropathy, and bilateral leg pain.

Dr. Suraj A. Muley, a Board-certified neurologist, noted in a February 25, 2019 medical 

report that appellant had a history of significant pelvic pain, diabetes, and chronic kidney disease. 

Appellant reported to him that he was exposed to cadmium in 2011 and then to arsenic in 2014. 

Dr. Muley noted that appellant developed symptoms of facial numbness and pain as well as 

temperature sensitivity of the face in 2012. He opined that it was possible that he had nerve 

damage from exposure to cadmium in 2011.

Appellant also submitted an April 15, 2019 electromyography (EMG) study.

By decision dated July 12, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim.

Appellant resubmitted Dr. Muley’s February 25, 2019 report and the April 15, 2019 EMG 

study.

On April 16, 2020 appellant, through counsel, requested reconsideration, contending that 

his claim was timely filed because he was unaware of his condition until April 21, 2018, when he 

was first tested for arsenic poisoning. He further argued that OWCP erred in finding that his prior 

claims for exposure to other hazardous chemicals was related to the present claim for arsenic 

poisoning.
5

Counsel also submitted an internet article discussing heavy metals and the adverse effects 

one’s health.

By decision dated July 10, 2020, OWCP denied appellant’s reconsideration request, 

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

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, 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 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).5 

The Board has found that the imposition of the one-year time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.6

OWCP may not deny a reconsideration request solely because it was untimely filed. When 

a claimant’s reconsideration request is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.7 If a request demonstrates 

clear evidence of error, OWCP will reopen the case for merit review.8

To demonstrate clear evidence of error, a claimant must submit evidence that is relevant to 

the issue that was decided by OWCP,9is positive, precise, and explicit, and is manifest on its face 

that OWCP committed an error.10 The evidence must not only be of sufficient probative value to 

create a conflict in medical opinion or establish a clear procedural error, but must also shift the 

weight of the evidence in favor of the claimant and raise a substantial question as to the correctness 

of OWCP’s decision for which reconsideration is sought. Evidence that does not raise a substantial 

question is insufficient to demonstrate clear evidence of error.11 It is not enough merely to 

demonstrate that the evidence could be construed so as to produce a contrary conclusion.12 A 

determination of whether the claimant has demonstrated clear evidence of error entails a limited 

 

4 20 C.F.R. § 10.607(a).

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

6 5 U.S.C. § 8128(a); J.D., Docket No. 18-1765 (issued June 11, 2019); R.L., Docket No. 18-0496 (issued January 9, 

2019); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7 20 C.F.R. § 10.607(b); B.C., Docket No. 18-1496 (issued May 22, 2019).

8 G.G., Docket No. 18-1074 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supra note 5 at Chapter 

2.1602.5 (February 2016).

9 F.N., Docket No. 18-1543 (issued March 6, 2019); Dean D. Beets, 43 ECAB 1153 (1992).

10 Id.

11 E.B., Docket No. 18-1091 (issued December 28, 2018).

12 J.W., Docket No. 18-0703 (issued November 14, 2018).
6

review of how the evidence submitted with the reconsideration request bears on the evidence 

previously of record.13

ANALYSIS

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed. 

In the last merit decision, dated July 19, 2018, OWCP denied appellant’s occupational 

disease claim, finding that he did not file his claim within the three-year limitation period provided 

in 5 U.S.C. § 8122(b). As it received appellant’s request for reconsideration on April 16, 2020, 

more than one year after the July 19, 2018 merit decision, the Board finds that OWCP properly 

determined that it was untimely filed. Consequently, appellant must demonstrate clear evidence 

of error by OWCP in denying his claim for compensation.14

The Board further finds that appellant has demonstrated clear evidence of error by OWCP 

in its July 19, 2018 decision.

In its July 19, 2018 decision, OWCP denied appellant’s claim, finding that it was untimely 

filed. It found that appellant’s claim had not been filed within the three years filing requirement 

of the date of last exposure or from the perspective of “latent” disability, noting that the similarity 

of the current claim to appellant’s prior claims in OWCP File Nos. xxxxxx780 and xxxxxx318 

provided further evidence that appellant was aware of his illness. 

On reconsideration, counsel contended that OWCP erred by equating one type of toxic 

exposure with several others and that appellant timely filed his claim when he became aware of 

his arsenic poisoning for the first time on April 21, 2018. Appellant has consistently, throughout 

the development of his claim, asserted that he received no past medical treatment for arsenic 

poisoning. It is well established that in cases of latent disability, the time for filing a claim does 

not begin to run until the claimant is aware, or by exercise of reasonable diligence, should be aware 

of the causal relationship between his condition and his employment.15 The record reflects that, 

although appellant previously filed claims under OWCP Nos. xxxxxx780 and xxxxxx318 for 

exposures to cadmium and other chemical substances, he was never diagnosed with arsenic 

poisoning until April 2018. In a May 11, 2018 letter and a June 20, 2018 report, Dr. Anderson 

noted that appellant was not previously tested for arsenic exposure until April 2018. A review of 

the record shows that appellant did not become aware of the connection between arsenic poisoning 

and factors of his federal employment until April 21, 2018 when he received the results from an 

April 20, 2018 laboratory urine test that revealed exposure to arsenic. Accordingly, as appellant’s 

request for reconsideration is sufficient to shift the weight of the evidence and raise a substantial 

question as to the correctness of OWCP’s decision, the Board finds that appellant has demonstrated 

 

13 Supra note 11.

14 20 C.F.R. § 10.607(a); F.B., Docket No. 20-0910 (issued April 23, 2021); L.W., Docket No. 17-1630 (issued 

June 7, 2018).

15 5 U.S.C. § 8122(b). See also L.S., Docket No. 20-0705 (issued January 27, 2021); D.D., Docket No. 19-0548 

(issued December 16, 2019); J.M., Docket No. 10-1965 (issued May 16, 2011).
7

clear evidence of error on the part of OWCP in its July 19, 2018 decision. Thus, OWCP abused 

its discretion in failing to reopen appellant’s claim for merit review. The Board will reverse 

OWCP’s July 10, 2020 decision and remand the case for an appropriate decision on the merits of 

his claim.

CONCLUSION

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed. The Board further finds that appellant has demonstrated clear 

evidence of error in OWCP’s July 19, 2018 merit decision and, thus, OWCP improperly denied 

his request for reconsideration of the merits of his claim.

ORDER

IT IS HEREBY ORDERED THAT the July 10, 2020 decision of the Office of Workers’

Compensation Programs is reversed and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: July 13, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board