United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

DEPARTMENT OF DEFENSE, DEPARTMENT 

OF DEFENSE EDUCATION ACTIVITY,

Alexandria, VA, Employer

__________________________________________

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Docket No. 21-0627

Issued: June 22, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 28, 20211 appellant filed a timely appeal from an August 3, 2020 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a Board decision dated August 16, 2019, which became final after 30 days of 

issuance, and is not subject to further review.2 As there is no merit decision issued by OWCP 

within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from August 3, 2020, the date of OWCP’s last decision, was 

January 30, 2021. Because using March 9, 2021, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of the commercial carrier’s markingsis considered the date 

of filing. The date of the commercial carrier’smarkingsis January28, 2021, rendering the appeal timely filed. See 

20 C.F.R. § 501.3(f)(1).

2

20 C.F.R. § 501.6(d). See S.M., Docket No. 21-0392 (issued August12, 2021); G.G., Docket No. 18-1074 (issued 

January 7, 2019).
2

Act3(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).

FACTUAL HISTORY

This case has been previously before the Board. The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference.4 The relevant facts 

are as follows.

On September 22, 2017 appellant, then a 69-year-old teacher, filed a traumatic injury claim 

(Form CA-1) alleging that on August 22, 2017 he sustained an optic nerve rupture of his right eye 

causing blindness triggered by a mandated, demanding two-day online social studies teacher 

training while in the performance of duty. On the reverse side of the claim form, the employing 

establishment noted that he was injured while in the performance of duty. Appellant did not stop 

work. 

In a development letter dated December 7, 2017, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of medical and factual evidence needed and 

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

necessary evidence. 

Thereafter, OWCP received an October 31, 2017 letter by Dr. Tina D. Aldana, an 

optometrist, indicating that appellant was under her care, and that she had recommended various 

adjustments to his daily lifestyle as a result of his vision loss.

In a letter dated January 8, 2018, Dr. Aldana related that she examined appellant on 

August 23, 2017 for acute onset vision loss in his right eye. She noted that he reported stress and 

strain related to visual and cognitive demands from excessive computer work du ring an online 

training course. Dr. Aldana noted a history of hypertension and glaucoma and performed a 

threshold visual field test, which revealed attitudinal defect in the right eye and glaucomatous 

defects in both eyes. She also administered fundus photographs, which revealed a swollen optic 

nerve and hemorrhages in the right eye. Dr. Aldana diagnosed Anterior Ischemic Optic 

Neuropathy (AION). She noted that there were many causes for this type of disease, but common 

factors included diabetes mellitus, rheumatoid arthritis, systemic low or high blood pressure, 

gastrointestinal ulcers, atherosclerosis, internal carotid artery disease, vasculitis, defective 

cardiovascular autoregulation, migraine, Type A personality, and sleep apnea. Dr. Aldana opined 

that several compounding risk factors contributed to appellant’s condition, including his systemic 

3

5 U.S.C. § 8101 et seq.

4 Docket No. 19-0577 (issued on August 16, 2019).
3

medical history as well as history of stress. In a letter dated January 26, 2018, she clarified that 

his preexisting glaucoma diagnosis was not the direct cause of his AION diagnosis.

In a letter dated January 11, 2018, Dr. Edgar Bindeis, an ophthalmologist, indicated that,

in August 2017, appellant sustained a vascular process on appellant’s right optic nerve which led 

to an almost complete blindness of his right eye. He instructed appellant to avoid activities that 

placed excess strain on his vision. Dr. Bindeis noted that, based upon his reported history, the 

vascular process had occurred in immediate temporal relation to a stress response and blood 

pressure increase.

By decision dated February 1, 2018, OWCP denied appellant’s occupational disease claim, 

finding that the evidence of record was insufficient to establish that his right eye condition was 

causally related to the accepted employment factors. It explained that the medical evidence of 

record failed to provide a rationalized medical opinion as to how histwo-day online training course 

resulted in the AION condition of the right eye.5

On February 9, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which took place on July 10, 2018.

OWCP continued to receive medical evidence, including a letter dated March 12, 2018 by

Dr. Ryan Ascherl, a Board-certified family practitioner, who indicated that appellant suffered from 

elevated blood pressure in August 2017 and that he reported suffering overwhelming stress due to 

mandatory online training. Dr. Ascherl opined that appellant was clearly under stress and the 

blood pressure increase was the result of his optic nerve hemorrhage. He noted that the vascular 

process occurred as a situational stress-related response with blood pressure increase.

In a letter dated May 7, 2018, Dr. Astrid Pinsky,6 specializing in family medicine, noted a 

history of high blood pressure, but that it has been adequately treated, which historically was 

aggravated by situational stress. She related that appellant did not suffer from atherosclerosis, 

internal carotid artery disease, vasculitis, defective cardiovascular autoregulation, sleep apnea, 

diabetes mellitus, rheumatoid arthritis, gastrointestinal ulcers, or migraines. Dr. Pinsky indicated 

that the only risk factor associated with the AION diagnosis was his arterial hypertension. She 

reiterated that appellant’s preexisting glaucoma condition had no causal relationship to the 

diagnosed AION. Dr. Pinsky explained that AION was referred to as a stroke of the optic nerve 

with resulting vision loss, and the association between acute and chronic stress and the risk of 

stroke was well known. She indicated that an acute or prolonged high stress situation can cause 

the elevation of one’s blood pressure to the point of hemorrhage and, in this case, hemorrhage of 

the optic nerve. Dr. Pinsky opined that appellant’s preexisting arterial hypertension was greatly 

aggravated by immense situational stress with a severe blood pressure increase which could cause 

hemorrhaging. She noted that he advised her that he experienced stress due to severe time 

constraints associated with the mandatory online training. Dr. Pinsky further noted that it was 

5 OWCP converted appellant’s traumatic injury claim to a claim for an occupational disease (Form CA-2). Its 

regulations define an occupational disease as a condition produced by the work environment over a period longer than 

a single workday or shift. 20 C.F.R. § 10.5(q).

6 The record contains documentation establishingDr.Pinsky’s credentials as a German physician.
4

during this time period that appellant experienced sudden vision loss. She opined that the acute 

vision loss in his right eye due to hemorrhaging of the optic nerve was caused by the situational 

stress he experienced during the mandatory online training. 

In a report dated August 3, 2018, Dr. Pinsky reiterated appellant’s medical history and 

recount of factual events of August 22, 2017. She indicated that AION was also referred to as a 

stroke of the optic nerve resulting in vision loss and was an acute impairment to the circulation of 

the arteries supplying the optic nerve due to high blood pressure. Dr. Pinsky further noted that, a 

sustained high stress situation “could cause” the elevation of blood pressure to the point of 

hemorrhaging and, in appellant’s case, this was what occurred. She opined that his acute 

permanent total vision loss in his right eye due to hemorrhaging affecting the optic nerve was 

caused by his blood pressure surges due to sustained situational stress during online mandatory 

training in August 2017.

By decision dated August 21, 2018, the hearing representative affirmed OWCP’s 

February 1, 2018 decision. He noted that Dr. Pinsky was not considered a qualified physician as 

defined under FECA.

On October 1, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

August 21, 2018 decision. He submitted additional evidence with his request including a copy of

Dr. Pinsky’s credentials. 

By decision dated December 28, 2018, OWCP denied modification of the August 21, 2018 

decision. It found that Dr. Pinsky was a physician as defined by FECA; however, her opinion 

regarding causal relationship was speculative and not supported by medical rationale.

On January 22, 2019 appellant, through counsel, appealed OWCP’s December 28, 2018 

decision to the Board.

By decision dated August 16, 2019,7the Board affirmed OWCP’s December 28, 2018 

decision. 

On July 30, 2020 appellant requested reconsideration, contending that the employing 

establishment conducted the online training session in a negligent manner, and that he was 

prejudiced by OWCP’s conversion of the claim from a traumatic injury to an occupational disease. 

In support of his request, he enclosed an August 23, 2017 referral slip by Dr. Abraham Wonduk 

Suhr, an ophthalmologist, noting a diagnosis of AION and a January 2, 2018 medical note of

Dr. Bindeis who opined that arterial embolism was “mostly the cause” of appellant’s AION. 

Appellant also enclosed duplicate copies of Dr. Aldana’s January 8 and 26, 2018 notes, an abstract 

of an article by the Polish Neurological Society, the September 20, 2017 Form CA-1, OWCP’s 

December 7, 2017 development letter and February 1, 2018 decision, the July 10, 2018 hearing 

transcript, a witness statement, and excerpts of the employing establishment’s safety and training 

procedure manual. 

7

Supra note 4.
5

By decision dated August 3, 2020, OWCP denied appellant’s request for reconsideration, 

finding that he had not established that OWCP erroneously applied or interpreted a specific point 

of law, and that he had not advanced a relevant legal argument or submitted relevant and pertinent 

new evidence not previously considered by OWCP.

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. 8

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.9

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

OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.11 A right to reconsideration within one year also accompanies 

any subsequent merit decision on the issues.12 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.13 

ANALYSIS

The Board finds that this case is not in posture for a decision.

8

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).

9

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).

10 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.

11 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).

12 F.N., Docket No. 18-1543 (issued March 6, 2019); Robert F. Stone, 57 ECAB 292 (2005).

13 20 C.F.R. § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued 

June 21, 2019).
6

In the case of William A. Couch,

14 the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued.

As noted above, by decision dated August 3, 2020, OWCP denied appellant’s request for 

reconsideration, finding, in part, that he had not submitted relevant and pertinent new evidence not 

previously considered by OWCP. However, it did not reference the January 2, 2018 medical note 

of Dr. Bindeis.

While OWCP is not required to list every piece of evidence submitted to the record, the 

record is clear that the February 1, 2018 report was not referenced or reviewed by OWCP in its 

August 3, 2020 decision.15 It is crucial that OWCP consider and address all evidence received 

prior to the issuance of its final decision, as the Board’s decisions are final with regard to the 

subject matter appealed.16 The Board finds, therefore, that this case is not in posture for decision 

as OWCP did not review and address Dr. Bindeis’ January 2, 2018 report in its August 3, 2020 

decision.17 On remand OWCP shall review and address all evidence of record and, following any 

further development as it deems necessary, it shall issue an appropriate decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

14 41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April3, 2018).

15 See Order Remanding Case, J.N., Docket No. 21-0086 (issued May 17, 2021); C.D., Docket No. 20-0168 (issued 

March 5, 2020).

16 See C.S., Docket No. 18-1760 (issued November 25, 2019); YvetteN. Davis, 55 ECAB 475 (2004); see also

WilliamA. Couch, supranote 14.

17 See V.C., Docket No. 16-0694 (issued August19, 2016).
7

ORDER

IT IS HEREBY ORDERED THAT the August 3, 2020 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: June 22, 2022

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