United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

O.A., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, PHOENIX INDIAN MEDICAL 

CENTER, Phoenix, AZ, Employer

__________________________________________

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Docket No. 22-1350

Issued: May 24, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 24, 2022 appellant filed a timely appeal from a September 15, 2022

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

days has elapsed from the last merit decision on this issue, dated March 21, 2022, to the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

ISSUE

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

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On June 11, 2020 appellant, then a 62-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on May 3, 2020 he was exposed to a patient that tested positive for COVID19 while in the performance of duty and subsequently developed a fever and tested positive for 

COVID-19 on May 4, 2020. On the reverse side of the claim form, his supervisor acknowledged 

that he was injured in the performance of duty. Appellant stopped work on May 8, 2020. OWCP 

accepted his claim for COVID-19. It paid appellant wage-loss compensation on the supplemental 

rolls, effective June 18, 2020.

Appellant submitted a polymerase chain reaction test result, collected on September 8, 

2020, which revealed that he tested negative for COVID-19. 

In a September 18, 2020 work excuse note, Dr. Harvey Hsu, a Board-certified internist, 

indicated that appellant was recovering from COVID-19 and required admission and treatment. 

He held appellant off work until October 5, 2020. In a November 17, 2020 letter, Dr. Hsu related 

that appellant was admitted with a severe case of COVID-19 pneumonia from May 13 through 

June 6, 2020. He reported that appellant had severe symptoms requiring oxygen, was 

hypercoagulable, had acute renal failure in the hospital from which appellant recovered, and had 

cardiac symptoms including bradycardia and right bundle branch block with grade 2 diastolic 

dysfunction. Dr. Hsu noted baseline asthma and hypertension as risk factors. He further explained 

that appellant had continued brain fogginess, reduced concentration, and difficulty with activity. 

Dr. Hsu indicated that appellant was “a COVID[-19] long hauler with residual symptoms,” but 

noted that appellant had improved and was eventually released back to work on October 5, 2020.

In a January 24, 2022 development letter, OWCP requested that appellant provide a report 

from his physician with regard to whether his condition had reached a fixed and stable point known 

as maximum medical improvement (MMI), and an impairment rating using the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).2 It afforded him 30 days to submit additional medical evidence in support of his schedule 

award claim. 

Appellant subsequently submitted a February 3, 2022 report from Dr. Hsu relating that 

appellant’s memory was still limited and appellant had poor concentration, but that he was able to 

work in medical records. Dr. Hsu also noted that appellant’s walking was fine and that his 

hypertension, asthma, and fatigue had improved. He diagnosed hypertension, secondary 

hypothyroidism, post-COVID-19 syndrome, sleep apnea, secondary male hypogonadism, asthma, 

and cognitive dysfunction. In an accompanying visit summary of even date, Dr. Hsu opined that 

appellant had a permanent impairment caused by COVID-19 acquired at work. He noted that 

appellant underwent neuropsychological testing on May 5, 2021 and was found to have significant 

problems with information processing speed, complex attention, and memory, both verbal and 

visual, suggesting dysfunction in frontal-subcortical networks with multifactorial etiology. The 

neuropsychologist recommended that appellant avoid complex instructions, which prevented him 

from returning to work as a nurse as he would endanger patients with errors. Dr. Hsu opined that 

2 A.M.A., Guides (6th ed., 2009).
3

appellant had reached MMI by May 2021, noting that the COVID-19 infection and hypoxia led to 

permanent damage of the brain and appellant had no preexisting condition for this. He explained 

that appellant’s impairment was mainly cognitive and that appellant could do most simple tasks,

but could not learn complex concepts, could not multitask, and had reduced memory . 

By decision dated March 21, 2022, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body warranting a schedule award.

Appellant subsequently submitted a May 5, 2021 report from Dr. Maryellen Romero, 

Ph.D., a neuropsychologist, who detailed appellant’s history of injury, including cognitive changes 

since his COVID-19 infection and hospitalization in the summer of 2020 and resection of pituitary 

adenoma in September 2020. Dr. Romero performed a neuropsychological evaluation, which 

revealed significant issues with information processing speed, complex attention, and memory, 

both verbal and visual. She noted that this pattern implicated dysfunction in frontal-subcortical 

networks and the etiology was likely multifactorial. Dr. Romero diagnosed benign neoplasm of 

pituitary, pneumonia due to COVID-19, chronic hypertension, major neurocognitive disorder due 

to multiple etiologies, without behavioral disturbance, and adjustment disorder with mixed anxiety 

and depressed mood. In a June 8, 2022 report,she noted that, while some improvement or stability 

was seen in isolated aspects of functioning such as attention and concentration, there was no 

significant overall improvement in appellant’s cognition relative to his previous evaluation.

Dr. Romero also noted that, though the current understanding of the impacts of COVID-19 on the 

central nervous system remained incomplete, his history of severe COVID-19 resulting in 

extended hospitalization and ventilation could not be overlooked as potential contributors to his 

current functioning.

On August 29, 2022 appellant requested reconsideration. He asserted his loss of cognitive 

abilities was a direct and proximate result of contracting COVID-19 and thatDr. Romero’ssecond

report established that he had no overall improvement in his cognition. 

Appellant also submitted a September 7, 2022 report from Dr. Hsu, relating that appellant

continued to have brain fog, memory issues, trouble finding words, fatigue, and leg swelling.

Dr. Hsu noted that appellant still had trouble with complex tasks since appellant’s COVD-19 

infection and asserted that appellant could not return to work as a nurse due to patient safety 

concerns. He opined that, after two years, this was a permanent deficit. Dr. Hsu diagnosed chronic 

renal impairment, stage 3a; hypertension; elevated mean corpuscular volume; elevated D-dimer;

swelling of lower leg; long COVID-19, asthma, and cognitive dysfunction. 

By decision dated September 15, 2022, OWCP denied appellant’s request for 

reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a). 
4

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 or her own motion or on application. 3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or 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. 4

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

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 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.

7

ANALYSIS

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

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

In his August 29, 2022 reconsideration request, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, nor did he advance a new and relevant 

legal argument not previously considered by OWCP. Accordingly, the Board finds that he is not 

entitled to a review of the merits based on the first and second above-noted requirements under 20 

C.F.R. § 10.606(b)(3).8

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered by OWCP. The underlying issue in this case is whether he has 

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February 11, 2019); W.C., 59 ECAB 372 (2008).

4

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).

5

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 (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.

6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); S.K., Docket No. 22-0248 (issued June 27, 2022); B.S., Docket No. 20-0927 (issued January 29, 

2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

Supra note 5.
5

established permanent impairment of a scheduled member or function of the body. In support of 

his reconsideration request, appellant submitted May 5, 2021 and June 8, 2022 reports by

Dr. Romero and a September 7, 2022 report by Dr. Hsu. Both physicians diagnosed post-COVID19 conditions and cognitive conditions. Dr. Romero indicated that appellant had no significant 

overall improvement in his cognition between her two evaluations, and Dr. Hsu opined that 

appellant’s cognitive deficits were permanent. However, neither Dr. Romero nor Dr. Hsu

provided an impairment rating of a scheduled member or function of the body in accordance with 

the sixth edition of the A.M.A., Guides. The Board has held that the submission of evidence or 

argument, which does not address the particular issue involved does not constitute a basis for 

reopening a case.9 Thus, appellant is not entitled to a review of the merits of his claim based on 

the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).10

The Board accordingly finds that OWCP properly determined that appellant has not met

any of the three requirements under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review.11

CONCLUSION

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

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

9 A.M., Docket No. 20-1417 (issued July 30, 2021); E.J., Docket No. 19-1509 (issued January 9, 2020); M.K., 

Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

10 Supra note 5; see T.H., Docket No. 18-1809 (issued May 23, 2019); JohnnyL. Wilson, Docket No. 98-2536 

(issued February 13, 2001).

11 See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020); 

Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three 

requirements enumerated under 20 C.F.R. § 10.606(b)(3), OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits).
6

ORDER

IT IS HEREBY ORDERED THAT the September 15, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 24, 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