United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

LAUGHLIN AIR FORCE BASE, Del Rio, TX, 

Employer

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Docket No. 21-1208

Issued: February 6, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 5, 2021 appellant filed a timely appeal from a July 19, 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 February 1, 2021, 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 his claim, pursuant to 5 U.S.C. § 8128(a).

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 2, 2020 appellant, then a 62-year-old retired painter supervisor, filed an 

occupational disease claim (Form CA-2) alleging that he sustained a respiratory condition due to

factors of his federal employment including exposure to multiple chemicals without protective 

equipment.2 He noted that he first became aware of his condition and realized its relation to his 

federal employment on November 1, 2000. Appellant remained employed as a painter supervisor 

through August 31, 2019, when he retired from the employing establishment. An official position 

description dated October 31, 2006, notes that appellant’s working conditions as a painter 

supervisor were subject to epoxy, paint thinners, mineral spirits, methyl-ethyl-ketone, 

polyurethane paint, grease, oil, fuels, battery acid, cleaning solvents, slippery surfaces, high 

pressure air and engine noise, electrical energy, and dust.

In support of his claim, appellant provided a July 14, 2020 statement alleging that he had 

been issued improper or inadequate personal protective equipment (PPE). During operation of a 

bead-blast cabinet, which produced chromium dust, cadmium, and polyurethane dust, he alleged 

receiving a paper mask that did not offer adequate protection. Appellant used a half-face respirator 

while stripping paint from aircraft and aircraft parts with methylene chloride, using polyurethane 

paint, and sanding. He alleged that environmental testing later established that this PPE did not 

filter out contaminants. 

In an incomplete, undated incident report received by OWCP on July 14, 2020, appellant 

noted that he had been hired by the employing establishment on August 17, 1989. He alleged that 

he had developed breathing problems due to workplace exposures to methyl ethyl ketone, 

polyurethane thinner, methylene chloride, epoxy primer, lacquer thinner, polyurethane paint, 

naphtha thinner, toluene thinner, acetone, plastic media, cadmium, and chromium. 

OWCP also received material safety data sheets for methyl ethyl ketone, base component 

industrial coating, polyurethane thinner, stripper 18, and curing solution.

Appellant submitted medical evidence from the employing establishment’s health unit. In

an August 17, 1992 report, Dr. Gregory G. Gardner, an employing establishment family 

practitioner, opined that pulmonary function testing (PFT) performed on that date was within 

normal limits. In an August 5, 1993 report, Dr. Blake V. Chamberlain, an employing establishment 

emergency medicine specialist, found that PFT performed that day were within normal limits. In

a July 26, 1995 report, Dr. Gardner opined that PFT performed on that date was within normal 

limits. Appellant completed a respirator medical evaluation questionnaire indicating complaints 

of shortness of breath, thick sputum, high blood pressure, and a heart problem for which he took 

medication.

2 On July 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule award. OWCP, in a 

development letter dated July 20, 2020, advised him of the evidence needed to establish his schedule award claim and 

afforded him 30 days to respond. There is no final decision of record regarding appellant’s schedule award claim.
3

In an October 19, 1998 exposure questionnaire, appellant alleged excessive exposure to 

metals, dusts or fibers, chemicals, fumes, chromium, cadmium, and methyl ethyl ketone. He 

alleged that the PPE provided by the employing establishment was inadequate.

OWCP received laboratory test panels dated from November 3, 1999 through August 22,

2018 from the employing establishment health unit, screening for cadmium exposure.

A December 13, 1999 occupational health examination requirements report acknowledged 

that employees in the corrosion control area where appellant worked were exposed to strontium 

chromate, zinc chromate, and chromic acid above the occupational exposure limit. These 

exposures necessitated a program of periodic PFT, chest x-rays, physical examinations, and 

exposure questionnaires.

In a September 13, 2001 fitness-for-duty examination report, Dr. Allan E. Ward, an 

employing establishment occupational medicine specialist, noted appellant’s complaints of 

intermittent right-sided chest pain that felt like pleurisy. 

In a September 30, 2002 employing establishment health unit respirator questionnaire,

Dr. Lisa B. Firestone, an employing establishment physiatrist, indicated that appellant’s medical

clearance or disqualification was on hold pending further evaluation. Appellant complained of 

chest pain, shortness of breath, and thick sputum production. 

A January 6, 2011 occupational health note indicated that workers exposed to chromic acid 

should have periodic physical examinations to detect incipient changes in the nostrils and 

respiratory tract.

In an April 26, 2016 report, Dr. Preston Moore, an employing establishment family 

practitioner, opined that appellant’s recent laboratory studies and PFT were within normal limits.

In a development letter dated July 17, 2020, OWCP advised 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. By separate development letter of even date, OWCP requested 

that the employing establishment provide comments from a knowledgeable supervisor regarding 

appellant’s allegations, including any history of hazardous exposures, the frequency and duration 

of such exposures, air sample results, safety data sheets for the relevant materials, and a description 

of the safety equipment provided. It afforded both parties 30 days to submit the requested 

evidence.

On December 1, 2020 OWCP referred appellant, along with statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Lukena Karkhanis, a Boardcertified internist, allergist, and immunologist, for a second opinion evaluation regarding whether 

the identified occupational exposures had caused the claimed respiratory condition. In a 

January 11, 2021 report, Dr. Karkhanis opined that PFT results obtained that day demonstrated a 

mild restrictive ventilator defect based on a mildly reduced forced vital capacity. She noted that 

appellant’s symptoms of difficulty getting air in at rest, worsened when wearing a surgical mask, 

and were better when walking, were atypical for asthma. On examination, Dr. Karkhanis found 

that appellant’s pulmonary auscultation was within normal limits, with no crackles or wheezes. 

She diagnosed shortness of breath and cough after exposure to diisocyanates. Dr. Karkhanis
4

opined that there was no objective evidence that diisocyanate-related injury had any role in 

appellant’s current condition. She noted that appellant’s morbid obesity, obesity-related 

hypoventilation, and significant cardiac disease, were alternative etiologies for his symptoms. 

Dr. Karkhanis recommended treatment for vocal cord dysfunction. She returned appellant to 

sedentary duty in a position that would allow him to walk around the room occasionally when he 

developed pulmonary symptoms while seated.

By decision dated February 1, 2021, OWCP accepted that the alleged occupational 

exposures had occurred as described. It denied the claim, however, finding that the medical 

evidence of record was insufficient to establish that appellant sustained a pulmonary condition 

causally related to the accepted occupational exposures. 

On March 15, 2021 appellant requested reconsideration. In an accompanying statement 

dated March 6, 2021, he contended that the factual evidence of occupational exposures was

sufficient to establish his claim, and that Dr. Karkhanis did not discuss these exposures in her 

report.

Appellant submitted material safety data sheets for red and white urethane paint, and high 

solids Ura-Zen catalyst.

A September 19, 2013 occupational health examination requirements memorandum 

indicated that employees in the corrosion control unit where appellant worked were exposed to 

chromium VI and strontium chromate “over the action level.”

In a July 9, 2020 attending physician’s report (Form CA-20), Dr. David M. O’Brien, an 

employing establishment physician specializing in aerospace medicine, diagnosed asthma and/or 

emphysema and/or airway obstruction. He answered “Yes” in support of causal relationship 

between the diagnoses and “[l]ack of proper respirator.”

Appellant also resubmitted evidence previously of record.

By decision dated July 19, 2021, OWCP denied appellant’s request for reconsideration of 

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

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.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a 

3 5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April 28, 2021); T.K., Docket No. 19-1700 (issued 

April 30, 2020); L.D., Docket No. 18-1468 (issued February 11, 2019); W.C., 59 ECAB 372 (2008).
5

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.4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 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.7

ANALYSIS

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

the merits of his claim.

On reconsideration, appellant submitted a July 9, 2020 Form CA-20 by Dr. O’Brien, who

diagnosed asthma and/or emphysema and/or airway obstruction. He answered “Yes” in support 

of causal relationship between the diagnoses and the “[l]ack of proper respirator.” As such, this 

report constitutes relevant and pertinent new evidence with regard to the threshold issue of whether 

appellant sustained a respiratory condition due to hazardous exposures in the performance of duty,

as alleged. Therefore, 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).8 Reopening a claim for 

merit review does not require a claimant to submit all evidence that may be necessary to discharge 

his or her burden of proof.9 Instead, the requirement pertaining to the submission of evidence in 

4 20 C.F.R. § 10.606(b)(3); see D.G., id.; L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., 

Docket No. 08-1569 (issued December 9, 2008).

5

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

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 (September 2020). 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). Chapter 2.1602.4(b).

6

Id. at § 10.608(a); D.G., supra note 3; F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 

231 (2007).

7

Id. at § 10.608(b); D.J., Docket No. 21-0371 (issued November 24, 2021); B.S., Docket No. 20-0927 (issued 

January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

8 F.F., Docket No. 20-1542 (issued April 9, 2021); see C.H., Docket No. 17-1065 (issued December 14, 2017);

J.W., Docket No. 18-0822 (issued July 1, 2020); D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. 

Mroczkowski, 40 ECAB 855 (1989).

9 B.S., Docket No. 20-0555 (issued April 22, 2021); P.M., Docket No. 19-1253 (issued January 23, 2020); R.T., 

Docket No. 18-1263 (issued February 7, 2019).
6

support of reconsideration only specifies that the evidence be relevant and pertinent and not 

previously considered by OWCP.10

As appellant has submitted new and relevant evidence, he is entitled to a review of the 

merits of the claim under section 10.606(b)(3) of OWCP’s regulations.11 Consequently, the case 

shall be remanded to OWCP for a review of the merits of the claim. Following any further 

development as deemed necessary, OWCP shall issue an appropriate merit decision.

CONCLUSION

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

the merits of his claim.

ORDER

IT IS HEREBY ORDERED THAT the July 19, 2021 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: February 6, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

10 B.S., id.; F.E., Docket No. 20-0070 (issued August 4, 2020); Helen E. Tschantz, 39 ECAB 1382 (1988).

11 F.F., supra note 8; J.T., Docket No. 19-1829 (issued August 21, 2020); T.P., Docket No. 18-0608 (issued 

August 2, 2018). See L.K., Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued 

July 6, 2016).