United States Department of Labor

Employees’ Compensation Appeals Board

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A.S., Appellant

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DEPARTMENT OF HEALTH & HUMAN 

SERVICES, OFFICE OF MEDICARE 

HEARINGS & APPEALS, Arlington, VA,

Employer

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Docket No. 21-0078

Issued: January 27, 2023

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

JAMES D. McGINLEY, Alternate Judge

On October 23, 2020 appellant filed a timely appeal from an August 28, 2020 nonmerit

decision of the Office of Workers’CompensationPrograms(OWCP).1 The Clerk of the Appellate

Boards docketed the appeal as No. 21-0078.

On April 10, 2019 appellant, then a 44-year-old lead program analyst, filed a traumatic 

injury claim (Form CA-1) alleging that on April 6, 2018, he injured his lumbar spine when he 

lifted a video teleconference monitor while in the performance of duty. He indicated that he felt a 

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, it was asserted that oral argument should be granted because the issues 

in this case are recurring ones, and a dialogue with the Board would assist in resolving them. The Board, in exercising 

its discretion, denies appellant’s request for oral argument because the Board does not have jurisdiction over the merits 

of this case and, thus. As such, the arguments on appeal can adequately be addressed in a decision based on a review 

of the case record. Oral argument in this appeal would further delay issuance of a Board decision. As such, the oral 

argument request is denied and this decision is based on the case record as submitted to the Board.
2

pop in his lower spine, experienced sharp pain down his right leg, and had difficulty walking. 

Appellant did not stop work.

In an April 19, 2019 development letter, OWCP informed appellant that the evidence 

received was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary and afforded him 30 days to submit the necessary evidence.

By decision dated May 21, 2019, OWCP denied appellant’s traumatic injury claim, finding 

that he had not submitted any medical evidence containing a medical diagnosis in connection with 

the accepted April 6, 2018 employment incident. Consequently, it found that he had not met the 

requirements to establish an injury as defined by the Federal Employees’ Compensation Act.

Thereafter, OWCP received an April 13, 2018 magnetic resonance imaging (MRI) scan of 

the lumbar spine and medical reports by Dr. Paymaun M. Lofti, an orthopedic spine surgeon, who, 

on May 2, 2018, performed surgery including L4-5 laminectomy, neuroforaminotomy, medial 

facetectomy and L4-5 fusion with interbody cage placement.

On January 15, 2020 appellant requested reconsideration of the May 21, 2019 decision. 

By decision dated March 6, 2020, OWCP modified its May 21, 2019 decision, finding that 

the evidence established a medical diagnosis in connection with his accepted April 6, 2018 

employment incident. However, it continued to deny appellant’s claim, finding that the evidence 

of record was insufficient to establish a causal relationship between appellant’s diagnosed lumbar 

conditions and the accepted April 6, 2018 employment incident. 

On April 3, 2020 appellant requested reconsideration of the March 6, 2020 decision.

By decision dated April 8, 2020, OWCP denied appellant’s request for review of the merits

of his claim. It found that he had not submitted relevant new evidence or legal argument which 

would require merit review of his claim.

On May 26, 2020 appellant requested reconsideration and submitted additional evidence.

In a May 26, 2020 report, Dr. Lofti opined that appellant’s L4-5 disc herniation and 

subsequent surgery were causally related to the April 6, 2018 employment incident. 

By decision dated August 28, 2020, OWCP denied appellant’s reconsideration request 

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

The Board, having duly considered this matter, finds that the case is not in posture for 

decision.2

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

OWCP’s decision for which review is sought.3 The last merit decision was OWCP’s March 6, 

2 T.L., Docket No. 19-1110 (issued August 11, 2020).

3

20 C.F.R. § 10.607(a). 
3

2020 decision, which denied appellant’s traumatic injury claim. As appellant’s request for 

reconsideration was received on May 26, 2020, within one year of the March 6, 2020 merit 

decision, the Board finds that appellant’s request for reconsideration was timely filed.

OWCP, however, applied the clear evidence of error standard in reviewing appellant’s 

request for reconsideration.

4

 Thatstandard is only appropriate in cases where a reconsideration 

request is untimely filed.5 Because OWCP erroneously reviewed the evidence submitted in 

support of appellant’s reconsideration request under the clear evidence of error standard, the case 

shall be remanded for application of the appropriate standard of review for timely requests for 

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

6

 

IT IS HEREBY ORDERED THAT the August 28, 2020 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: January 27, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

4 C.D., Docket No. 17-1074 (issued August28, 2017); A.M., Docket No. 16-1250 (issued December 20, 2016).

5

See V.M., Docket No. 18-1184 (issued July 10, 2019); Donna M. Campbell, 55 ECAB 241 (2004).

6 A.K., Docket No. 20-0003 (issued June2, 2020); Order Remanding Case, J.H., Docket No. 18-1367 (issued 

July 17, 2019); E.S., Docket No. 17-0698 (issued July 14, 2017).