United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, HARTSFIELD-JACKSON 

ATLANTA INTERNATIONAL AIRPORT,

Atlanta, GA, Employer

__________________________________________

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Docket No. 23-0784

Issued: November 2, 2023

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the Appellant1

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 May 15, 20232 appellant, through counsel, filed a timely appeal from a November 14, 

2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards docketed the appeal as No. 23-0784.

3

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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP 

decision. 20 C.F.R. § 501.3(e). An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. Id.

at § 501.3(f). One hundred and eighty days from November 14, 2022, the date of OWCP’s latest decision, was

Saturday, May 13, 2023. Because the last day of the 180-day filing period fell on a weekend, appellant had until the 

close of the next business day, Monday, May 15, 2023, to timely file an appeal. Id. § 501.3(f)(2). As the Clerk of the 

Appellate Boards received the appeal on May 15, 2023, the appeal is timely filed. Id.

3 The Board notes that following the November 14, 2022 decision, OWCP received additional evidence. 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 April 16, 2016 appellant, then a 42-year old transportation security officer, filed a

traumatic injury claim (Form CA-1) alleging that on that day a passenger, who was holding a child, 

lost her balance and the child fell on her left knee while in the performance of duty. OWCP 

accepted the claim for left knee contusion, unspecified tear of unspecified meniscus, left knee, and 

derangement of unspecified medial meniscus of the left knee due to old tear or injury. Appellant 

stopped work on April 16, 2016. OWCP paid appellant wage-loss compensation on the 

supplemental rolls commencing June 2, 2016 and on its periodic compensation rolls effective

June 23, 2019.4

By notice dated June 23, 2021, OWCP advised appellant that, under 5 U.S.C. § 8106 and 

5 U.S.C. § 8115, it proposed to adjust her wage-loss compensation based on her ability to earn 

wages as a General Office Clerk, Department of Labor, Dictionary of Occupational Titles (DOT)

No. 209.562-010, at the rate of $360.00 per week. It noted that the position had been selected by 

appellant’s vocational rehabilitation counselor and that a September 16, 2020 state labor market 

survey demonstrated that it was reasonably available in appellant’s commuting area with an 

average weekly wage of $360.00. OWCP informed appellant that the duties of the position were 

within the May 2, 2019 work restrictions recommended by her treating physician Dr. Nicole 

Forsythe, a Board-certified physiologist. It afforded her 30 days to submit evidence and argument 

challenging the proposed reduction.

In a July 23, 2021 letter, appellant’s counsel responded to the proposed reduction.

By decision dated August 25, 2021, OWCP reduced appellant’s wage-loss compensation, 

effective June 1, 2020, based on its determination that she was capable of earning wages in the 

constructed position of General Office Clerk. It found that the constructed position of General 

Office Clerk had wages of $360.00 per week and had been shown by a labor market survey to have 

been reasonably available in appellant’s commuting area. OWCP applied the principles set forth 

in the Albert C. Shadrick5 decision to determine the percentage of appellant’s loss of wage-earning

capacity (LWEC).

On August 25, 2022 appellant requested reconsideration and submitted additional 

evidence.

By decision dated November 14, 2022, OWCP denied appellant’s request for 

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

It noted that her reconsideration request was received August 25, 2022 but there was no evidence 

of a postmark for timely filing.

On appeal counsel contends the August 25, 2022 reconsideration request was timely.

The Board has duly considered the matter and finds that appellant’s request for 

reconsideration was timely filed.

Section 10.607(a) of OWCP’s implementing regulations provides that a request for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

4 Appellant received schedule awards for permanent impairment of her left lower extremity by OWCP decisions 

dated January 4, 2018, March 26, 2021, and April 1, 2022. 

5

5 ECAB 376 (1953). See also 20 C.F.R. § 10.403(d).
3

review is sought.6 One year following OWCP’s August 25, 2021 merit decision was 

August 25, 2022. Because OWCP received her reconsideration request on August 25, 2022, the 

Board finds that it was timely filed.7 The clear evidence of error standard utilized by OWCP in its 

November 14, 2022 decision is appropriate only for untimely reconsideration requests. 8 

Therefore, the Board will set aside OWCP’s November 14, 2022 decision and remand the case for 

an appropriate decision applying the correct standard for timely requests for reconsideration. 

Accordingly,

IT IS HEREBY ORDERED THAT the November 14, 2022 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: November 2, 2023

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

20 C.F.R. § 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 2.1602.4a (September 2020).

7

See Order Remanding Case, S.J., Docket No. 23-0179 (issued May 23, 2023); Order Remanding Case, B.W., 

Docket No. 20-1512 (issued August 24, 2021);Order Remanding Case, J.H., Docket No. 18-1367 (issued 

July 17, 2019);Order Remanding Case, C.B., Docket No. 13-1732 (issued January28, 2014); StevenE. Pratt, Docket 

No. 93-443 (issued February 2, 1994).

8

See 20 C.F.R. § 10.607(b); see also id.