United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

KANSAS CITY VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Kansas City, MO, Employer

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Docket No. 20-0267

Issued: June 29, 2020

Appearances: Case Submitted on the Record

Melford V. McCormick, J.D., 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 September 23, 2019 appellant, through her representative, filed a timely appeal from 

an August 19, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 20-0267.

On May 14, 2010 appellant, then a 51-year-old health technician, filed a traumatic injury 

claim (Form CA-1) alleging that on May 1, 2010 she sustained injuries to her buttocks, knees, 

back, neck, and left shoulder when she was assaulted and fell down while in the performance of 

 

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

duty. She did not stop work, but worked modified duty. OWCP accepted appellant’s claim for 

spasm of the back muscle and lumbar sprain.2

On April 28, 2017 appellant requested that her claim be reevaluated due to a recent 

diagnosis and expanded to include the additional diagnosis of spinal stenosis. After development 

of the case record OWCP, by decision dated November 22, 2017, denied her request. It found that 

the medical evidence of record was insufficient to establish that appellant’s was additional claimed 

spinal conditions were causally related to the accepted May 1, 2020 employment injury.

Subsequent to the decision, appellant submitted additional medical reports, including a 

December 11, 2017 report by Dr. Jonathon D. Chilton, a Board-certified neurosurgeon, who

related that he initially examined appellant on April 25, 2016 for complaints of a six-year history 

of back pain that began after a May 2010 assault at work. OWCP also received a December 1, 

2017 letter by Dr. Sequita Richardson, a Board-certified family physician, and a December 7, 2017 

letter by Dr. Pamela S. Taylor, a clinical psychologist and licensed professional counselor, who 

related that they had not treated appellant for a back injury.

In a letter dated March 5, 2108 and received on March 13, 2018, appellant’s representative 

noted appellant’s claim number and indicated that he was enclosing additional medical records. 

He further noted this was a request for reconsideration of the November 22, 2017 decision which 

denied benefits. Appellant submitted reports dated December 13, 2017 to January 10, 2018 by

Dr. Scott McMurray, a Board-certified orthopedic surgeon, who indicated that he had treated 

appellant for complaints of left shoulder pain after an injury at work.

On July 31, 2019 OWCP received an additional letter from appellant’s representative who 

related that the letter and enclosed documents served as a request for reconsideration of the 

November 22, 2017 denial decision. The representative alleged that he was enclosing a 

November 6, 2017 letter, which cited medical records that were sent to the incorrect office. He 

also submitted an appeal request form (Form AB-1), which indicated that appellant was requesting 

reconsideration.

By decision dated August 19, 2019, OWCP denied appellant’s request for reconsideration 

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

that it did not receive the request for reconsideration of its November 22, 2017 decision until 

July 31, 2019.

The Board has considered the matter and finds that OWCP improperly determined that 

appellant’s request for reconsideration was not timely filed within the one-year time period.3 

The record contains a letter dated March 5, 2018, which was received by OWCP on 

March 13, 2018. In the letter, appellant’s counsel noted OWCP’s claim number and indicated that 

the letter was a request for reconsideration of the November 22, 2017 decision which denied

 

2

In a decision dated July 19, 2010, OWCP also found that the medical evidence of record was insufficient to 

establish that appellant sustained neck, left shoulder, and bilateral knee conditions causally related to the May 1, 2010 

employment incident.

3 E.S., Docket No. 17-0698 (issued July 14, 2017).
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benefits. The Board notes that the letter identified the proper claim number and explicitly noted 

that appellant was requesting reconsideration of the November 22, 2017 OWCP decision. 

Appellant also submitted medical evidence that specifically addressed the issue of whether her 

claim should be expanded to include additional conditions. Accordingly, the Board finds that 

appellant’s March 5, 2018 letter, received by OWCP on March 13, 2018, constituted a request for 

reconsideration.4 Therefore, because appellant’s March 13, 2018 request for reconsideration was 

received within one year of OWCP’s November 22, 2017 merit decision,5it was timely filed.6

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

applying the legal standard for cases where reconsideration is requested after more than one year 

has elapsed. OWCP should have applied the legal standard reserved for timely reconsideration 

requests as set forth in 20 C.F.R. § 10.606(b)(3).7 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 a timely 

reconsideration request.8 

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

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

 

4 R.D., Docket No. 14-896 (issued August 1, 2014); C.M., Docket No. 11-1988 (issued June 6, 2012).

5 Section 10.607(a) of the Board’s Rules of Procedure provides that an application for reconsideration must be 

received by OWCP within one year of the date of the decision for which review is sought. 20 C.F.R. § 10.607(a)

6

J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B., Docket 

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

7 An application for reconsideration must be in writing, must set forth arguments, and must contain evidence, 

including all supporting documents, that either: (i) shows that OWCP erroneously applied or interpreted a specific 

point of law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes relevant 

and pertinent new evidence not previously considered by OWCP. 20 C.F.R. § 10.606(b)(3). When a timely 

application for reconsideration does not meet at least one of the above-noted requirements, OWCP will deny the 

request for reconsideration without reopening the case for a review of the merits. 20 C.F.R. § 10.608(a), (b).

8 L.N., Order Remanding Case, Docket No. 19-0170 (issued August 21, 2019).
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IT IS HEREBY ORDERED THAT the August 19, 2019 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: June 29, 2020

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