United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

PITTSBURGH VETERANS AFFAIRS 

MEDICAL CENTER, Pittsburgh, PA, Employer

__________________________________________

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Docket No. 20-1661

Issued: May 6, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On September 24, 2020 appellant, through counsel, filed a timely appeal from a July 20, 

2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from OWCP’s last merit decision dated August 13, 2019, 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 the claim.

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 her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On October 1, 2018 appellant, then a 33-year-old physician assistant, filed a notice of 

recurrence (Form CA-2a) alleging a recurrence of disability and the need for medical treatment 

commencing September 25, 2018, due to an accepted March 19, 2018 employment injury.3 She 

reported that she experienced multiple triggers in the workplace relating to her sexual assault that 

caused her to experience increased panic attacks, situational anxiety, and post-traumatic stress 

disorder (PTSD) flashbacks. 

In a letter dated January 31, 2019, OWCP advised appellant that, based on the description 

of the circumstances that prompted her to file her Form CA-2a and the evidence of record, she was

actually claiminga new occupational disease attributed to new employment factors over the course 

of more than one work shift and not a recurrence of her previous injury. It converted her claim 

into a new occupational disease claim using her Form CA-2a, assigned OWCP File No. 

xxxxxx590.

In a subsequent development letter dated February 5, 2019, OWCP advised appellant of 

the deficiencies of her occupational disease claim. It informed her of the type of evidence needed 

to establish her claim and provided questionnaire for her completion. In a separate development 

letter of even date, OWCP requested that the employing establishment provide comments from a 

knowledgeable supervisor regarding the accuracy of appellant’s allegations. It afforded both 

parties 30 days to respond.

Appellant submitted a September 26, 2018 text conversation between herself and her 

supervisor, J.G., wherein she informed him that she had not slept well the night before due to 

nightmares. Just before she was scheduled to arrive at work, she informed him that she had a panic 

attack and that she experienced an event at the end of her workday previously that triggered her.

In a February 13, 2019 medical note, Dr. Donald Shoenthal, Board-certified in family 

medicine, advised that appellant needed to be excused from work for at least another two weeks 

until she was reevaluated again on February 27, 2019. In a subsequent February 27, 2019 medical 

note, he advised that she would need to remain off work as she continued eye movement 

desensitization and reprocessing (EMDR) therapy.

In a medical report of even date, Dr. Shoenthal noted that appellant presented for follow

up and indicated that she was still experiencing difficulty with insomnia related to the March 19, 

3 Under OWCP File No. xxxxxx464, appellant filed a traumatic injury claim (Form CA-1), alleging that, on 

March 19, 2018,she was sexually assaulted while in the performance of duty. She stopped work on April 19, 2018. 

On June 20, 2018 OWCP accepted appellant’s claim for other specified anxiety disorders, panic disorder (episodic 

paroxysmal anxiety) without agoraphobia, and insomnia, unspecified. Appellant returned to work on September 19, 

2018, butstopped work again on September 25, 2018.
3

2018 employment incident. He diagnosed depression/anxiety, PTSD and situational anxiety. 

Dr. Shoenthal documented that appellant experienced multiple stressors from work and her home 

life.

In a February 28, 2019 response to OWCP’s development questionnaire, appellant detailed 

her return to work beginning September 19, 2018. She related that she experienced a panic attack 

that morning when she met with J.G. because it was her first time returning to work following the 

assault and she did not know who assaulted her. The following day appellant reported that she 

experienced anxiety as she began to see patients while alone in a room with them. She alleged 

that she was also told by her supervisor that she would need to return to the 11th floor where the 

assault took place. Appellant asserted that this caused her a great deal of anxiety as she felt 

pressured when her supervisor informed her she would have to “go up there eventually.” She 

believed the man who assaulted her could still be up there and she did not want to be caught on 

the 11th floor alone again. Appellant alleged that M.W., her coworker, agreed to go to the 11th

floor with her and upon looking through her belongings, she was triggered again when she found 

the ear buds she was wearing on the day of the assault. She concluded that she was unable to 

function for the rest of the workday.

Appellant further related that she was informed that on March 21, 2018 the cameras on the 

11th floor were not working during the time of the sexual assault. She broke down, believing that 

she would never be able to identify the person who assaulted her. Appellant also described the 

September 25, 2018 incident where a male employee who she did not know sought to give her a 

volunteer shirt placed his arm around her and asked her what size shirt she was. She immediately 

left the room, grabbed her purse and had not returned to work sense, explaining that she had a 

panic attack and that her PTSD was taking over. Appellant concluded that she had such strong 

reactions because she was in the environment where her assault took place without knowing who 

assaulted her. She reacted to every man as if he was a suspect and that she was unsafe.

Appellant continued by explaining that she filed her recurrence claim for this period 

because she related her inability to work to the March 19, 2018 assault. Her therapist explained 

that the employment incidents she described when she returned to work re-traumatized her and 

caused her to develop a new diagnosis of PTSD. Appellant further detailed the development of 

her related symptoms since she returned to work on September 19, 2018 as well as her medical 

treatment for her conditions.

In a March 1, 2019 statement, J.S., appellant’s coworker, recounted that on the day she 

returned to work she informed her of the reason she had been absent from work. Appellant 

informed her that the police were unable to identify her attacker because the cameras were not 

functioning at the time of the assault. J.S. observed that she appeared withdrawn and afterwards 

left the conversation feeling scared for the safety of the women in the work area. Appellant later 

spoke with her after her supervisor requested that she return to the 11th floor. She cried and 

informed J.S. that she did not feel she was able to return at that time. She recommended that 

appellant inform her supervisor that she was not ready to return to the 11th floor.

In a March 5, 2019 medical report, appellant informed Dr. Shoenthal that she felt her 

symptoms had improved with EMDR trauma therapy and treating with a mental health therapist. 
4

He diagnosed depression/anxiety, PTSD and insomnia and advised that she continue her EMDR 

therapy sessions.

In a letter of even date, Dr. Shoenthal reviewed the history of appellant’s treatment in 

relation to the March 19, 2018 employment incident. He noted that she was placed on medical 

leave and received treatment for her diagnoses of PTSD, situational anxiety, insomnia and 

depression. Upon her return to work, Dr. Shoenthal recounted the events from September 19 to 

25, 2018, specifically noting that appellant was asked to return to the floor in which the sexual 

assault took place and that she was approached by a male employee who placed his hand on her 

shoulder and asked her for her shirt size. He explained that because of the employment events 

appellant was placed back into crisis therapy and had been receiving private psychological 

counseling therapy. Dr. Shoenthal concluded by finding that appellant was unable to return to 

work due to the exacerbation of her conditions.

In a March 13, 2019 medical note, Dr. Shoenthal advised that appellant needed to be 

excused from work for the period February 26 to March 18, 2019. He advised that she could return 

to work on March 18, 2019 with the condition that she be cleared to work at a different location.

By decision dated March 29, 2019, OWCP denied appellant’s occupational disease claim, 

finding that the evidence of record was insufficient to establish the medical component of fact of 

injury. It explained that she did not submit any medical evidence containing a medical diagnosis 

in connection with the employment incidents described. OWCP concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

On April 15, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on July 8, 2019. 

Appellant submitted psychiatric evaluations dated from April 23 to July 16, 2019 in which

Dr. Kimberly Clinebell, a Board-certified psychiatrist, observed that appellant had completed 

EMDR therapy and returned to work at a different location after the March 19, 2018 employment 

incident. She noted prior diagnoses of depression, anxiety and PTSD and associated symptoms. 

On evaluation Dr. Clinebell diagnosed PTSD, major depressive disorder, generalized anxiety 

disorder and panic disorder without agoraphobia. She prescribed medication and advised that 

appellant continue her therapy sessions with Emily Heyl, a licensed professional clinical 

counselor.

By decision dated April 13, 2019, the hearing representative affirmed the March 29, 2019 

decision as modified, finding that although OWCP failed to include new compensable employment 

factors in its initial denial decision, appellant still had not submitted evidence from an appropriate 

specialist providing a diagnosis linked to the accepted factors of employment.4

On April 22, 2020 appellant, through counsel, requested reconsideration of the April 13, 

2019 hearing decision. Attached was a November 6, 2018 initial evaluation in which Dr. Francine 

4 The hearing representative also noted that, insofar as the claim related to appellant’s earlier claimed injury, it 

should be administratively combined with OWCP File No. xxxxxx464. OWCP subsequently administratively 

combined OWCP File Nos. xxxxxx464 and xxxxxx590 with the latter serving as the master file.
5

Fettman, a Board-certified psychologist, evaluated appellant’s symptoms of trauma after her 

March 2018 sexual assault. She reviewed the history of the employment incident, appellant’s 

subsequent symptoms and her history of medical treatment. Dr. Fettman diagnosed PTSD and 

opined that it was clear that she demonstrated symptoms of PTSD resulting from the assault she 

experienced at work. She suggested different therapies for appellant to undergo, including EMDR 

therapy. Counsel also attached several therapy progress notes dated from November 6, 2018 to 

January 2, 2019.

By decision dated July 20, 2020, OWCP denied appellant’s reconsideration request

pursuant to 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. 5

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.6

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

OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.8 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.9

5

5 U.S.C. § 8128(a); see L.D.,Docket No. 18-1468 (issued February 11, 2019); 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).

6

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N.,Docket 

No. 08-1569 (issued December 9, 2008).

7

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 the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 --Claims, 

Reconsiderations, Chapter 2.1602.4 (September 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.

8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R.,Docket No. 09-1655 (issued March 18, 2010).
6

ANALYSIS

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

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

On reconsideration appellant submitted a November 6, 2018 report, wherein Dr. Fettman 

diagnosed PTSD and opined that it was clear that she demonstrated symptoms of PTSD resulting 

from the assault she experienced at work. As this report addresses the underlying issue of whether 

a medical condition had been diagnosed in connection with the accepted employment factor(s), 

the report constitutes relevant and pertinent new evidence that was not previously considered.

Therefore, the Board finds that the submission of this evidence requires reopening of appellant’s 

claim for merit review pursuant to the third requirement of 20 C.F.R. § 10.606(b)(3).10

Consequently, the Board will set aside OWCP’s July 20, 2020 decision and remand the 

case for an appropriate merit decision on appellant’s claim.11

CONCLUSION

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

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

10 20 C.F.R. § 10.606(b)(3); see also J.T., Docket No. 20-1301 (issued July 28, 2021); M.J., Docket No. 20-1067 

(issued December 23, 2020).

11 F.K., Docket No. 21-0998 (issued December 29, 2021).
7

ORDER

IT IS HEREBY ORDERED THAT the July 20, 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: May 6, 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