United States Department of Labor

Employees’ Compensation Appeals Board

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E.H., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

MCCLELLAN AIR FORCE BASE, CA, 

Employer

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Docket No. 21-1295

Issued: April 25, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On August 28, 2021 appellant filed a timely appeal from a March 25, 2021 nonmerit 

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

Boards docketed the appeal as No. 21-1295.

1

On April 11, 2001 appellant, then a 54-year-old secretary, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she sustained multiple injuries when she stumbled and fell 

on steps entering her building while in the performance of duty. On June 5, 2001 OWCP accepted 

appellant’s claim for right shoulder sprain, right knee contusion, and right hip contusion. On 

April 2, 2019 it expanded the acceptance of her claim to include cervical disc degeneration, 

unspecified cervical region, and cervicalgia.

1 The Board notes that,following the March25, 2021decision, OWCP received additional evidence. However, the 

Boards Rules of Procedureprovides: “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

By decision dated April 29, 2019, OWCP denied expansion of appellant’s claim to include 

bilateral carpal tunnel syndrome and left arm and thoracic area injuries.

On May 13, 2019 appellant requested reconsideration.

By decision dated October 16, 2019, OWCP denied modification of the April 29, 2019

decision.

Subsequently, OWCP further developed appellant’s claim, referring her to a second 

opinion physician.

By decision dated December 19, 2019, OWCP expanded the acceptance of appellant’s 

claim to include permanent aggravation of lumbar spinal stenosis.

OWCP thereafter received additional evidence including diagnostic studies, an operative 

report, physical therapy reports, and primary treating physician’s progress notes. 

On December 23, 2020 appellant requested reconsideration, contending that there was 

clear evidence of error. She submitted evidence in support of the reconsideration request including

progress notes from Dr. Champlin dated September 22, November 17, and December 28, 2020, 

and January 19 and26, and March 2, 2021. 

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

of the merits of her claim, finding that it was untimely filed and failed to demonstrate clear 

evidence of error.

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

OWCP summarily denied appellant’s request for reconsideration without complying with 

the review requirements of FECA and its implementing regulations. 2 Section 8124(a) of FECA 

provides that OWCP shall determine and make a finding of fact and make an award for or against 

payment of compensation.3 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the 

Director of OWCP shall contain findings of fact and a statement of reasons. 4 As well, OWCP’s 

procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the 

reader to understand the precise defect of the claim and the kind of evidence which would 

overcome it.5

In denying appellant’s reconsideration request, OWCP failed to analyze whether it was 

sufficient to demonstrate clear evidence of error. The March 25, 2021decision simply noted: “We 

did consider your request under 20 C.F.R. § 10.607(b) to determine whether you presented clear 

2 M.D., Docket No. 20-0868 (issued April28, 2021); T.P., Docket No. 19-1533 (issued April30, 2020); see also

20 C.F.R. § 10.607.

3

5 U.S.C. § 8124(a).

4

20 C.F.R. § 10.126.

5 Federal (FECA) Procedure Manual, Part 2 --Claims, Disallowances, Chapter 2.1400.5 (February 2013).
3

evidence that [OWCP’s] last merit decision was incorrect.” OWCP did not address appellant’s 

contentions raised on reconsideration. Furthermore, it provided no discussion relative to the 

evidence submitted.6

The Board finds that OWCP failed to properly explain the findings with respect to the issue 

presented so that appellant could understand the basis for the decision, i.e., whether she had 

demonstrated clear evidence that OWCP’s last merit decision was incorrect.7 The Board will,

therefore, set aside OWCP’s March 25, 2021 decision and remand the case for findings of fact and 

a statement of reasons, to be followed by an appropriate decision on appellant’s reconsideration 

request. Accordingly,

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

Workers’ Compensation Programs is set aside. The case is remanded for further proceedings 

consistent with this order of the Board.

Issued: April 25, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

6 M.D., supra note 2; see also Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., 

Docket No. 19-0604 (issued September 13, 2019); R.C.,Docket No. 16-0563 (issued May 4, 2016).

7 OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s request demonstrates 

clear evidence of error on the part of OWCP. Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations,

Chapter 2.1602.5(a) (September 2020).