United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.M., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGICSTICS AGENCY, DISTRIBUTION 

REGIONAL CENTER, Albany, GA, Employer

__________________________________________

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Docket No. 21-1366

Issued: February 13, 2023

Appearances: Case Submitted on the Record

Paul Felser, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

On September 16, 2021 appellant, through counsel, filed a timely appeal from a March 23, 

2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards assigned the appeal Docket No. 21-1366.2

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 The Board notes that, following the March 23, 2021 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Procedure provides: “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

On November 8, 2019 appellant, then a 54-year-old distribution process worker, filed a 

traumatic injury claim (Form CA-1) alleging that on September 13, 2019 she sustained a rotator 

cuff tear when “lifting parts” while in the performance of duty. She did not stop work. 

In support of her claim, appellant submitted reports of Dr. John Waldrop, a Board-certified 

orthopedic surgeon, dated October 1 and 15 and November 19, 2019. She also provided physical 

therapy treatment notes dated November 27 through December 31, 2019. 

By decision dated February 25, 2020, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish that the September 13, 2019 employment incident 

occurred, as alleged. It concluded, therefore, that she had not met the requirements to establish an 

injury as defined by the Federal Employees’ Compensation Act (FECA).3 

On September 21, 2020 appellant requested reconsideration of the February 25, 2020 

decision. 

By decision dated October 2, 2020, OWCP denied appellant’s request for reconsideration 

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

On February 25, 2021 appellant again requested reconsideration of the February 25, 2020 

decision. In support of her request, she submitted a September 18, 2019 report by Dr. Donna Graf, 

a Board-certified obstetrician and gynecologist; October 9, 2019 and January 7, 2021 reports by

Dr. Rakesh B. Patel, a Board-certified diagnostic radiologist; a November 5, 2019 report by

Dr. Waldrop; and December 11, 2020 and January 7 and 18, and February 12, 2021 return to work 

and progress notes by Dr. Nurulhusein Nurbhai, a Board-certified orthopedic surgeon. 

Appellant also submitted a letter which described the September 13, 2019 employment 

incident in detail. 

By decision dated March 23, 2021, OWCP denied appellant’s request for reconsideration, 

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

The Board has duly considered this matter and finds that this case is not in posture for 

decision.

4

In an appeal request form received on February 25, 2021 appellant requested 

reconsideration of the February 25, 2020 decision. A request for reconsideration must be received 

by OWCP within one year of the date of the last merit decision.

5

 One year from the February 25, 

2020 OWCP merit decision was February 25, 2021. As appellant’s request for reconsideration 

3 5 U.S.C. § 8101 et seq.

4 Order Remanding Case, P.B., Docket No. 21-0716 (issued December 10, 2021); Order Remanding Case, D.F., 

Docket No. 20-0267 (issued June 29, 2020); Order Remanding Case, C.D., Docket No. 17-1074 (issued 

August 28, 2017).

5 20 C.F.R. § 10.607(a). Timeliness is determined by the document receipt date of the request for reconsideration 

as is indicated by the “received date” in the Integrated Federal Employees’ Compensation System (iFECS). Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2020).
3

was received on February 25, 2021, the Board finds that it constituted a timely request for 

reconsideration.

As the February 25, 2021 request for reconsideration was timely filed, OWCP should have 

applied the standard applicable to timely reconsideration requests as set forth in 20 C.F.R. 

§ 10.606(b)(3), rather than the more stringent clear evidence of error standard for untimely 

reconsideration requests set forth in 20 C.F.R. § 10.607(a).6 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 to OWCP for application of the standard for reviewing a timely request for 

reconsideration as set forth at 20 C.F.R. § 10.606(b)(3), to be followed by an appropriate decision.

7

 

Accordingly,

IT IS HEREBY ORDERED THAT the March 23, 2021 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: February 13, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

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 Order Remanding Case, L.N., Docket No. 19-0170 (issued August 21, 2019).