United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.F., widow of P.F., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

Chattanooga, TN, Employer

__________________________________________

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Docket No. 22-0101

Issued: June 1, 2023

Appearances: Case Submitted on the Record

Jimmy F. Rogers, Jr., Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 29, 2021 appellant, through counsel, filed a timely appeal from a May 3, 2021 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 

days has elapsed from the last merit decision, dated March 30, 2020, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and

501.3, the Board lacks jurisdiction over the merits of this case.

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

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

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

FACTUAL HISTORY

On October 19, 2018 the employee, then a 78-year-old former boilermaker/welder, filed 

an occupational disease claim (Form CA-2) alleging that he sustained mesothelioma causally 

related to factors of his federal employment. He related that he was exposed to asbestos, the only 

known cause of mesothelioma, in the course of his work for the employing establishment at five 

different nuclear power plants. 

A statement of earnings indicates that the employee worked for the employing 

establishment from 1976 to 1991. He subsequently worked in the private sector.

In a development letter dated October 24, 2018, OWCP informed the employee of the 

deficiencies of his claim. It advised him of the type of additional 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 additional information regarding 

appellant’s occupational disease claim, including comments from a knowledgeable supervisor 

regarding the accuracy of his statements. It afforded both parties 30 days to respond.

In a November 13, 2018 response, the employing establishment advised that the employee 

was an “intermittent hourly worker” and requested an extension of time to review his employment 

records. 

Thereafter, OWCP received a September 19, 2017 report from Dr. Nathan Mull, a Boardcertified internist, who evaluated the employee for right pleural effusion and dyspnea. Dr. Mull 

noted that he had never smoked, but had a history of significant exposure to asbestos in his work 

as a boilermaker. He diagnosed a right pleural effusion suspicious for mesothelioma.

In a sworn declaration dated November 21, 2018, the employee advised that he had worked 

for the employing establishment at five different nuclear power plants from October 20, 1976 to 

December 16, 1991, except for a few days of “lay-off” time. He related that from December 17, 

1991 to April 23, 2002 he worked as a boilermaker/welder for various contractors primarily at the 

same facilities at the employing establishment. The employee asserted that he worked with 

employees in other crafts, including insulators, electricians, carpenters, and pipefitters and that he 

was exposed to a variety of “asbestos-containing products including but not limited to pipe 

covering/insulation, gaskets, pumps, valves, rope, and packing.” He related that he was exposed 

“continuously throughout each day to asbestos from various sources including operating 

machinery and all the many tradesman/craftsmen performing their daily labor. The daily work I 

performed also exposed me to the same asbestos.” The employee asserted that he saw visible dust 

from the asbestos. He noted that a coworker and fellow boilermaker, R.A., had an accepted claim 

for asbestosis. 
3

On October 23, 2018 the employing establishment controverted the claim. It asserted that 

the employee had over 44 years working for the boilermakers’ union and only 15 years of work 

for the employing establishment. The employing establishment indicated that it did not have data 

showing the employee’s exposure to asbestos, but that other workers in the same environment 

showed exposure levels within occupational exposure limits. The employing establishment again 

noted that he had not performed abatement duties.

In a statement dated December 13, 2018, the employing establishment related that the

employee’s job did not include “removal or disturbance of asbestos,” that he did not perform 

asbestos abatement work, and that he was not in an asbestos monitoring program. It maintained 

that he had subsequent employment with contractors who performed asbestos abatement work. 

The employing establishment advised that it required employees exposed to more than 0.1 

fiber/cubic centimeter of air for more than 30 days a year to wear a respiratory and participate in 

an asbestos surveillance program.

On January 3, 2019 OWCP prepared a statement of accepted facts (SOAF) indicating that 

the employee was exposed to asbestos-containing products working around boilermakers, welders, 

insulators, electricians, laborers, carpenters, and pipefitters/steamfitters. It referred him for a 

second opinion examination regarding whether he had a diagnosed medical condition causally 

related to the accepted employment exposure.

In a report dated January 10, 2019, Dr. Mull related that he had evaluated the employee on 

September 19, 2017 for dyspnea and right lower thoracic pain. He advised that he was 

“immediately concerned about mesothelioma” due to the employee’s asbestos exposure in his 

work as a boilermaker. Dr. Mull attributed his pleural mesothelioma to his occupational exposure 

to asbestos at the employing establishment.

The employee passed away on March 18, 2019. The death certificate listed the cause of 

death as malignant mesothelioma of the pleura and peritoneum, hypoxic respiratory failure, 

malignant pleural effusion, and mesothelioma.

On June 24, 2019 OWCP referred the case file to Dr. Ronald R. Cherry, a Board-certified 

internist and pulmonologist, for a second opinion examination. 

On June 28, 2019 counsel questioned why the employing establishment referred to the 

employee’s work as intermittent when he had worked over 15 years with only a few days of break. 

He referenced a statement from R.A., a coworker, confirming exposure to asbestos fibers.

In a report dated July 8, 2019, Dr. Cherry noted that the employee had died from a 

malignant right pleural mesothelioma that had extended into his pericardium. He reviewed the 

SOAF and Dr. Mull’s finding in his January 10, 2019 report that the employee was exposed to 

asbestos while working for the employing establishment. Dr. Cherry related that most 

mesothelioma cases resulted from exposure to asbestos. He asserted that there was “essentially no 

safe exposure to asbestos dust” and that all exposure to asbestos was “damaging, potentially 

carcinogenic, and cumulative.” Dr. Cherry found that if the employee’s exposure to asbestos 

including his work for the employing establishment, then his “malignant pleural mesothelioma 

was caused or accelerated as a result of his federal employment.” 
4

OWCP prepared a SOAF on August 6, 2019 that indicated that the employee was not in a 

classification that included the removal or disturbance of asbestos, and that he did not perform 

asbestos abatement work. 

By decision dated August 9, 2019, OWCP denied the employee’s claim as appellant had 

not established fact of injury. It found that appellant had not established that the employee was 

exposed to asbestos in the course of his federal employment.

On September 6, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

Subsequently, counsel submitted a portion of testimony from a physician in a circuit court 

case. He further submitted revised standards from the National Institute for Occupational Safety 

& Health (NIOSH) that noted that excessive risk of cancer had been demonstrated at all asbestos 

fiber concentrations, and that there was no safe level of exposure. It recommended setting the 

standard at the lowest level detectable.

In a July 23, 1999 letter, the Occupational Safety and Health Administration (OSHA) 

advised that it had not set the permissible exposure limits for asbestos below where a significant 

risk occurred because it could not be reliably measured at that level.

In a sworn declaration dated January 9, 2020, T.R., a coworker, related that he had worked 

as a boilermaker/welder at the employing establishment’s nuclear power plant from 1982 to 1988 

except for an occasional “lay-off” day. His duties included working around various craftsman that 

exposed him to asbestos-containing products including “pipe covering/insulation, gaskets, pumps, 

valves, rope, and packing.” T.R. advised that the products produced visible dust. He related that 

while welding at the employing establishment’s plant he often wrapped himself in asbestos 

blankets to protect against the sparks, and worked on boilers that required him to remove the 

asbestos insulation. T.R. did not receive airway protection until the late 1980s. He also removed 

asbestos insulation from large tanks and air ducts to work on metal tubes. T.R. asserted that he 

worked with the employee on the same shift and occasionally on the same crew. He related that 

he had been diagnosed with asbestosis due to his work at the employing establishment and had an 

approved claim with OWCP. T.R. noted that the employee worked at the plant for a longer period,

and had greater exposure to asbestos.

In a January 10, 2020 sworn declaration, R.A. advised that he had worked as a 

boilermaker/welder at various nuclear power plants at the employing establishment from 1976 to 

1991 with occasional lay-off days. He described his work around other tradesman and his exposure 

to asbestos-containing products daily. R.A. related that he had used both his bare hands and 

various tools including hand grinding tools to remove asbestos insulation from pipes and boilers, 

which produced thick dust such that he could see his footprints on the ground. He had no airway 

protection until the mid-1980s. R.A. advised that he worked with the employee at three different 

nuclear power plants. He indicated that he had an approved claim with OWCP for medical 

monitoring due to his asbestosis. R.A. asserted that the employee had worked at the employing 

establishment’s power plants for longer than he had and had more asbestos exposure.
5

Counsel submitted literature regarding asbestos exposure in various occupations, including 

power plant workers.

A journal report on the history of movement toward an asbestos ban noted that in June 1986

OSHA reduced the permissible level of exposure to 0.2 fiber/meter cubed. It noted that the risk 

remained significant but could not be further lowered. Two years later OSHA reduced exposure 

limits to 0.1 fiber/meter cubed.

At the telephonic hearing, held on January 13, 2020, counsel noted that the employee had 

worked for the employing establishment at 5 different power plants for approximately 15 years 

and 2 months. He noted that the employing establishment admitted that it had no first-hand 

knowledge about the employee’s exposure to asbestos. Counsel advised that appellant had 

submitted witness statements verifying the employee’s asbestos exposure, and that the time of his 

diagnosis was consistent with the latency period of the disease. He asserted that the issue of 

whether the employing establishment currently had monitoring programs in place was not relevant. 

Counsel noted that it had maintained that the exposure met the threshold level of 0.1 fiber per cubic 

centimeter, which OSHA found was an unsafe level of exposure. He further related that the limit 

of 0.1 fiber per cubic centimeter was not set until the 1990s, after the employee had left 

employment. Counsel asserted that the employing establishment claimed compliance with the 

standard of 0.1 fiber per cubic centimeter without advising that it was a standard from the 1990s 

that did not apply to the employee. He additionally noted that the employee worked in groups that 

included insulators and pipe fitters. Counsel cited authorities discussing the use of asbestos in 

power generating plants and specifically at the employing establishment.

By decision dated March 30, 2020, OWCP’s hearing representative affirmed the August 9, 

2019 decision. He found that the employee had not offered any support beyond his testimony that 

he had been exposed to asbestos. OWCP’s hearing representative noted that the employing 

establishment had denied exposure, because he was not in a monitoring program and asbestos work 

was performed by trained contractors.

In a sworn declaration dated February 25, 2021, appellant asserted that the employee had 

never worked for asbestos abatement contractors or performed asbestos abatement work either 

before, during, or after working for the employing establishment. She advised that after he left 

employment, he worked in maintenance tasks usually at the facilities of the employing 

establishment.

On March 30, 2021 appellant, through counsel, requested reconsideration. Counsel 

asserted that the evidence, in particular the declarations of the employee and his coworkers,

established that the employee had been exposed daily to asbestos dust and fibers during his over 

15 years of work for the employing establishment. He advised that the employing establishment 

had no factual basis for its assertion that the employee had subsequent employment for an asbestos 

abatement contractor. Counsel noted that the medical evidence supported that the employee’s 

employment with the employing establishment caused or contributed to his mesothelioma. He 

contended that the employing establishment only described actions taken to reduce the risk of 

exposure without addressing whether first-hand information supported exposure. Counsel 

maintained that even if boilermakers like appellant and his coworkers were not in a trade 

recognized as at risk did not mean that they were not exposed. He related that medical journals 
6

identified boilermakers as “being in a category with recognized occupational exposure risk.”

3

 

Counsel noted that asbestos compensation trust funds recognized the facilities where the employee 

worked as preapproved sites. He asserted that there was nothing in the record to rebut the 

declarations of R.A. and T.R. regarding the employee’s exposure history. Counsel noted that 

OWCP had prepared three SOAFs and OWCP’s hearing representative chose to rely on the one 

that found no asbestos exposure. He referenced evidence finding that there was no safe level of 

asbestos exposure. Counsel maintained that OWCP had failed to consider the employee’s 

supporting evidence in reaching its decision.

By decision dated May 3, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of her claim under 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. 4

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.5

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

OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.7 If the request is timely but fails to meet at least one of the 

3 Counsel referenced exhibits that are not contained in the case record.

4

5 U.S.C. § 8128(a); see C.V., Docket No. 22-0078 (issued November 28, 2022); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.606(b)(3); see K.D., Docket No. 22-0756 (issued November 29, 2022); see also L.G.,Docket No. 

09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

6

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 (February 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). Id. at Chapter 2.1602.4b.

7

Id. at § 10.608(a); see also D.B., Docket No. 22-0518 (issued November 28, 2022); F.V., Docket No. 18-0239 

(issued May 8, 2020); M.S., 59 ECAB 231 (2007).
7

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.8

ANALYSIS

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

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

On reconsideration, counsel challenged OWCP’s finding that appellant had not established 

that the employee was exposed to asbestos. He asserted that the employee and two coworkers had 

submitted sworn declarations regarding their exposure, and questioned why OWCP failed to weigh 

this evidence in reaching its determination. Counsel noted that the employing establishment 

acknowledged that it had no actual knowledge of the extent of the employee’s exposure to asbestos. 

The Board finds that counsel has raised a relevant legal argument not previously considered. 

OWCP’s hearing representative concluded that appellant had not submitted any evidence that the 

employee was exposed to asbestos other than the employee’s declaration. However, statements 

from the employee’s coworkers support that he had asbestos exposure and, as noted by counsel, 

the employing establishment indicated that it had no data showing the extent of any exposure to 

asbestos. While it maintained that the employee was not in a position that required monitoring, 

and that exposure limits for similar workers showed data within occupational exposure limits, it 

did not address whether those were current standards or standards in effect during the time the 

employee worked at the employing establishment beginning in 1976. The relevant factual issue is 

not whether the employee performed asbestos abatement work or was in a monitoring program,

but whether he had asbestos exposure at work and, if so, the extent of the exposure. The issue of 

whether any accepted exposure caused his cancer is a medical question that must be resolved by a 

physician. 

Therefore, the Board finds that this argument requires reopening of appellant’s claim for 

merit review pursuant to the second requirement of section 10.606(b)(2).9 Accordingly, the Board 

will set aside OWCP’s May 3, 2021 decision and remand the case for an appropriate merit 

decision.

CONCLUSION

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

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

8

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April2, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

9

20 C.F.R. § 10.606(b)(2).
8

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2021 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 1, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board