United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.M., Appellant
and
DEPARTMENT OF THE ARMY,
HUNTER ARMY AIRFIELD, GA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-2141
Issued: April 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 20, 2009 appellant filed a timely appeal from the May 4, 2009 merit decision
of the Office of Workers’ Compensation Programs and a nonmerit decision dated June 24, 2009.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3(e), the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty on November 30, 2008 as alleged; and
(2) whether the Branch of Hearings and Review properly denied appellant’s request for a review
of the written record as untimely.
FACTUAL HISTORY
On March 13, 2009 appellant, then a 55-year-old automotive mechanic, filed a traumatic
injury claim alleging on November 30, 2008 he fell off a Humvee onto a table while in the
performance of duty in Afghanistan. Appellant landed on his left upper hip and back. A witness

supported that appellant fell from a Humvee, which was parked, on a lift. The Office requested
additional factual and medical evidence from appellant in a letter dated March 17, 2009.
In a March 23, 2009 medical report, Dr. Theodore Trevor Redman, a physician at the
employing establishment clinic, noted that appellant presented for the second time since
redeployment for left low back and buttock pain. He obtained a history that appellant fell on
November 30, 2008 while deployed in Afghanistan. Appellant was standing on the hood of a
Humvee and fell approximately five feet, landing on a table. He was seen that day by a medic
and diagnosed with a back sprain. Appellant noted mild continued back pain. On examination,
Dr. Redman found that appellant’s back did not demonstrate muscle spasms of wasting. He
noted mild left sacroiliac joint pain. Dr. Redman diagnosed a back strain of the sacroiliac region.
In a narrative statement, appellant stated that he was unable to file his claim sooner as the
injury occurred at an outstation while he was deployed in Afghanistan. He had no contact with a
direct supervisor as his supervisor was in transition to a new duty station and a replacement had
not arrived. Appellant described the employment incident, reiterating that he was working on a
Humvee that was secured on a lift and elevated. He attempted to step from the vehicle to a work
table, but miscalculated the distance and fell landing on his left hip. Appellant noted the fall was
approximately five feet.
By decision dated May 4, 2009, the Office denied appellant’s claim finding that he failed
to submit sufficient medical evidence. The decision made passing reference to the fact that
appellant was on temporary duty and that it had received a March 23, 2009 report from
Dr. Redman. Regarding the medical report, the Office noted that Dr. Redman provided a
diagnosis of back strain. The decision states:
“However, it is indicated on this report that you presented for the second time for
lower left back pain, without explanation of what exactly happened on this date
that brought you back into the doctor regarding your lower back. Because of this,
it appears that you may have broken the ‘chain of causation’ regarding the first
claimed lower back injury, meaning that you may have incurred a new injury
which was the reason that you seen [sic] Dr. Redman for your back on
March 23, 2009.”
Appellant requested a review of the written record on June 4, 2009.
reflects that appellant postmarked the request on June 4, 2009.

The envelope

In a decision dated June 24, 2009, the Branch of Hearings and Review denied appellant’s
request for a review of the written record as untimely. The Branch of Hearings and Review
found that the issue in the case could equally well be addressed by requesting reconsideration
and submitting additional new evidence.
LEGAL PRECEDENT -- ISSUE 1
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to

2

time and place of occurrence and member or function of the body affected.1 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.2
Federal employees abroad are not covered around the clock under all situations. Federal
employees abroad who are in travel status or on a special mission are covered for activities
reasonably incidental to their employment. Federal employees who are abroad may also be
covered under other doctrines of workers’ compensation law such as the zone of special danger,
the bunkhouse rule, the proximity rule, the positional risk doctrine or the rescuers doctrine.3 The
Board has recognized the rule that the Federal Employees’ Compensation Act covers an
employee 24 hours a day when he or she is on travel status or on a temporary-duty assignment or
special mission and engaged in activities essential or reasonably incidental to such duties.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant fell from a Humvee on November 30, 2008 while in
the performance of duty. On that day, appellant was located at a remote outstation in
Afghanistan in the performance of his duties as an automotive mechanic. He was working on a
tactical vehicle that was secured on a lift and elevated when he attempted to step from the
Humvee to a nearby table. Appellant fell, landing on his left hip and back. The facts of this
appeal reveal that he was on a special mission to provide automotive support to the government’s
efforts in Afghanistan. The claims examiner failed to address this aspect of the claim, the fact
that on November 30, 2008 appellant was at a site removed from regular or routine medical care,
contact with his supervisors and did not return to the United States until sometime later.
The Office found that the medical evidence submitted was not sufficient to meet
appellant’s burden of proof. In denying appellant’s claim, the May 4, 2009 decision cited to
Robert M. Sanford,5 for the proposition that the mere concurrence on a condition with a period of
employment does not raise an inference of causal relationship. In that case, the Board found that
the employee, a VISTA volunteer, did not meet his burden of proof to establish that his perianal
fistula was causally related to his employment. The Board noted in the facts of Sanford that the
1

20 C.F.R. § 10.5(ee).

2

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

3

See FECA Bulletin No. 03-07, issued May 12, 2003. The Bulletin was incorporated into the Office’s Federal
(FECA) Procedure Manual, Part 4 -- Special Case Procedures, War Hazards, Chapter 4.300 (September 1994).
4

See Lawrence J. Kolodzi, 44 ECAB 818 (1993). See also James Rogy, Jr., Docket No. 05-1247 (issued
December 8, 2005).
5

27 ECAB 115 (1975).

3

Office obtained appellant’s records from VISTA while developing the claim. Unlike the facts in
Sanford, the Office made no attempt in this case to secure appellant’s medical records from the
military or to request clarification from Dr. Redman. Notwithstanding appellant’s burden of
proof to establish his claim, the Office has a duty to assist in the development of the record
particularly when the information is more readily obtained by the Office and with another
governmental agency or department.6
The May 4, 2009 decision made reference to the fact that appellant was on temporary
duty and that the Office had received the March 23, 2009 report from Dr. Redman. The decision
found that the report established that appellant presented for the second time for lower left back
pain, “without explanation of what exactly happened on this date that brought you back into the
doctor regarding your lower back. Because of this, it appears that you may have broken the
‘chain of causation’ regarding the first claimed lower back injury, meaning that you may have
incurred a new injury which was the reason that you seen [sic] Dr. Redman for your back on
March 23, 2009.” In this regard, the claims examiner has misinterpreted the statement by
Dr. Redman. In the report, Dr. Redman states: “55-year-old male presents for second time since
redeployment for left lower back/buttock pain. Reports he fell while deployed to OEF on 30
November 2008.” Rather than implicating a second injury, Dr. Redman merely noted the fact
that he was examining appellant for a second time following appellant’s return to the United
States from Afghanistan. It is clear that Dr. Redman was provided an accurate history of the
employment incident of November 30, 2008. For these reasons, the case will be remanded to the
Office for further development of appellant’s claim.7
CONCLUSION
The Board finds that the case is not in posture for decision.

6

See James M. Weems, 9 ECAB 315 (1957); John J. Feeley, 8 ECAB 576 (1956).

7

Based on this disposition of the appeal, the second issue is moot.

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ORDER
IT IS HEREBY ORDERED THAT the June 24 and May 4, 2009 decisions of the
Office of Workers’ Compensation Programs be set aside. The case is remanded to the Office for
further development consistent with this decision.
Issued: April 20, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Tacoma, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1329
Issued: December 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 26, 2015 appellant, through counsel, filed a timely appeal of a February 5, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Appeals Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish disability,
commencing November 3, 2012, causally related to his employment injuries.
On appeal, appellant’s counsel alleges that OWCP’s decision was not well rationalized
and that appellant’s physician established that appellant could not work due to the accepted
employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 11, 2012 appellant, then a 48-year-old custodial laborer, filed an
occupational disease claim alleging that he exacerbated his chronic back pain while performing
his federal duties. OWCP assigned this case File No. xxxxxx353. The employing establishment
controverted this claim.
Appellant also filed a separate traumatic injury claim on October 11, 2012 stating that on
September 21, 2012, while picking up trash with the grabber, he heard a popping sound coming
from his back and it started to burn and ache. This claim was assigned File No. xxxxxx638. The
employing establishment also controverted this claim.
In support of his claim, appellant submitted July 18, 2012 work restrictions by Michael
Erskine, a physician assistant, a duty status report from the employing establishment dated
August 6, 2013, progress notes from Mr. Erkskine dated August 30 and September 14, 2012, and
a report by Pamela Asadi, a physician assistant, discussing appellant’s hospital visit on
September 21, 2012. Appellant later submitted an October 18, 2012 duty status report from
Mr. Erkshine based on the September 21, 2012 examination. Appellant submitted an
October 11, 2012 statement wherein he discussed his duties, which included mopping the floor,
stripping and waxing the floor, climbing a ladder, lifting various weights, picking up trash, and
operating high impact machinery. He listed his symptoms as severe lower back pain which
radiated down his buttock and legs.
By decision dated November 19, 2012, OWCP denied appellant’s occupational disease
claim as appellant had not submitted any sufficient medical evidence containing a diagnosis.
OWCP further noted that appellant had not submitted medical evidence establishing a causal
relationship between a diagnosed condition and the accepted factors of his federal employment.
By decision dated December 6, 2012, OWCP denied appellant’s traumatic injury claim in
File No. xxxxxx638.
In an October 29, 2012 letter, Mr. Erskine indicated that appellant was still not cleared to
return to work due to a chronic low back condition which was aggravated by working with the
Department of Veterans Affairs.2
On December 14, 2012 appellant, through his counsel, requested a hearing in OWCP File
No. xxxxxx353, appellant’s occupational disease claim, by telephone. Counsel also requested
that the case be doubled with No. xxxxxx638, the traumatic injury claim, as they both concerned
injuries to appellant’s lumbar region.
At a hearing held on March 4, 2013, the hearing representative considered appellant’s
appeal of both the November 19 and December 6, 2012 decisions. Appellant testified and
described his employment duties, described the onset of his back pain with regard to both cases,
and discussed his medical care.

2

Appellant did not work for the Department of Veterans Affairs.

2

By decision dated April 26, 2013, the hearing representative affirmed both the
November 19 and December 6, 2012 decisions,
In a May 2, 2013 report, Dr. Jaime A. Foland, a Board-certified physiatrist, stated that he
initially evaluated appellant on April 18, 2012. He discussed appellant’s job duties, including
mopping and stripping floors, pushing, pulling, and lifting heavy objects, pushing and pulling
carts, and climbing ladders. Dr. Foland noted that appellant first injured his low back in 1992
and that this date precede the time he began working at the employing establishment. He
indicated that he saw appellant for low back pain and neck pain on April 18 and June 6, 2012 and
January 24, 2013. Dr. Foland also noted that he spoke with appellant on the telephone on
March 11, 2013. He diagnosed lumbar spondylosis manifested by a desiccated disc at L4-5 and
also a right herniated disc at L5-S1 that as causing lumbago and sciatica. Dr. Foland listed
appellant’s physical limitations as lifting not greater than 20 pounds but he noted that appellant
had no sitting, standing or walking restrictions. He stated that appellant was precluded from
crawling, kneeling, squatting, and should avoid frequent neck extension. Dr. Foland noted that
his restrictions were currently temporary. He concluded that the repetitive job duties that
appellant performed for the last 15 years and at the time of his latest injury of September 21
contributed to a reasonable medical certainty to appellant’s condition.
On February 14, 2014 appellant requested reconsideration of the April 26, 2013 decision.
By decision dated July 1, 2014, OWCP vacated in part and affirmed in part the April 26,
2013 decision.
OWCP determined that the evidence was sufficient to establish the claim for an
occupational disease in File No. xxxxxx353 as he explained that appellant’s back condition was
due to work conditions over a period of time. It determined, however, that the traumatic injury
claim remained denied because the evidence had not attributed a medical diagnosis to any
specific event.
In a separate decision of the same date, OWCP accepted appellant’s occupational disease
claim for displacement of lumbar intervertebral disc without myelopathy and lumbosacral
spondylosis without myelopathy.
On August 5, 2014 appellant filed CA-17 claim forms for compensation from
November 3, 2012 through July 31, 2014. He later filed claims for subsequent periods of
disability. Appellant retired on June 11, 2014.
In support of his claims for compensation, appellant submitted a December 11, 2013
progress note by Dr. Foland noting that appellant had significant spondylosis of the cervical
spine and chronic low back pain. He diagnosed chondromalacia patella, plantar fasciitis, chronic
back pain, and hyperlipidemia. Dr. Fong noted that appellant appeared to have radiculopathy
from C6, but more than likely from C7 radiculopathy due to foraminal stenosis at C6-7. He felt
that appellant would benefit from an epidural steroid injection and definitely felt he would
benefit from surgery, but that appellant was resistant. In a December 18, 2013 note, Dr. Foland
diagnosed subacute chronic neck pain, currently with significantly high pain levels, decrease of
cervical range of motion, left upper extremity numbness, and decrease of left upper extremity

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strength. The progress notes also contain progress notes by Mr. Erskine and Deborah Grogean,
as well as notes discussing appellant’s treatment with the mental health group.
By letters dated October 21 and 29, 2014, OWCP requested that appellant submit medical
reports in support of his requests for compensation.
In a November 18, 2014 brief letter, Dr. Foland noted that he had been treating appellant
since April 18, 2012 and that he was last seen by him on November 12, 2014. He noted that
appellant’s diagnoses are lumbar spondylosis as well as cervical spondylosis. Dr. Foland opined
that appellant had been unable to work since “September 12” because of his accepted work
injuries. He noted that appellant was unable to push, pull or lift over 20 pounds; cannot bend,
twist or squat; and was unable to sit or stand for more than 20 minutes without a break of at least
10 minutes. Dr. Foland noted that appellant’s last MRI of the lumbar spine revealed continued
severe degeneration of the L4-5 and L5-S1 discs.
By decision dated February 5, 2015, OWCP denied appellant’s claim for compensation
for the period November 3, 2012 and continuing.
LEGAL PRECEDENT
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides:
“The United States Shall pay compensation as specified by this subchapter for the
disability or death of an employee resulting from personal injury sustained while
in the performance of his or her duty.”
In general the term disability under FECA means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of the injury.4 This meaning,
for brevity, is expressed as disability from work.5 For each period of disability claimed, the
employee has the burden of proving that he was disabled for work as a result of the accepted
employment injury.6 Whether a particular injury caused an employee to be disabled for
employment and the duration of that disability are medical issues which must be proved by the
preponderance of the reliable probative and substantial medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

See William A. Archer, 55 ECAB 674 (2004).

7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

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receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.8
ANALYSIS
OWCP accepted appellant’s occupational disease claim for displacement of lumbar
intervertebral disc without myelopathy and lumbosacral spondylosis without myelopathy.
Appellant filed claims for compensation for periods commencing November 3, 2012. Appellant
retired effective June 11, 2014.
The Board finds that the medical evidence fails to establish that appellant was disabled
commencing November 3, 2012 due to his accepted injuries.
Dr. Foland submitted medical reports addressing appellant’s employment-related injuries.
However, Dr. Foland did not provide a rationalized medical opinion finding appellant disabled at
any point after November 3, 2012. Initially, the Board notes that Dr. Foland opined in his
November 18, 2014 letter that appellant was disabled after “September 12” because of his
accepted work injuries. Dr. Foland did not specify the year, and as the letter was written on
November 18, 2014, one would assume that the letter indicated disability after
September 12, 2014. Appellant had already retired from federal employment at this point.
Furthermore, Dr. Foland’s opinion is conclusory in nature, and fails to explain in detail how the
accepted medical conditions were responsible for appellant’s disability and why he could not
perform his federal employment. His earlier reports also do not provide any rationalized
explanation that appellant was disabled after November 3, 2012. In his May 2, 2013 report,
Dr. Foland listed appellant’s temporary restrictions, but never specifically linked any specific
periods of disability to the accepted conditions of displacement of lumbar intervertebral disc or
lumbosacral spondylosis. Notes of the physician assistants and nurses have no probative medical
value as they are not considered physicians as defined under FECA.9 The remaining medical
evidence addresses emotional conditions that are not a part of this claim.
Appellant has not submitted any rationalized medical evidence establishing that he was
disabled for periods after November 3, 2012. Thus, he has not met his burden of proof to
establish that he is entitled to compensation for any disability.

8

Id.

9

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); A.C.,
Docket No. 08-1453 (issued November 18, 2008) (records from a physical therapist do not constitute competent
medical opinion in support of causal relation, as physical therapists are not physicians as defined under FECA; L.D.,
59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA); Roy L. Humphrey, 57 ECAB
238 (2005). See also J.G., Docket No. 15-251 (issued April 13, 2015).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish disability for
periods commencing November 3, 2012 causally related to his employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2015 is affirmed.
Issued: December 18, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, MOUNTAIN VIEW
POST OFFICE, Mountain View, CA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 21-0523
Issued: January 26, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 18, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx429. The most recent merit decision was a decision of the Board dated October 22, 2012,
which became final after 30 days of issuance, and is not subject to further review. As there was
no merit decision issued by OWCP within 180 days from the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s November 16, 2020 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on different issues.2 The facts and
circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by
reference. The relevant facts are set forth below.
On August 24, 1992 appellant, a letter carrier, filed a traumatic injury claim (Form CA-1)
alleging that on that day she sustained an injury when her left knee struck the bumper of her postal
vehicle while in the performance of duty. OWCP accepted her claim for left knee strain under
OWCP File No. xxxxxx724. It later expanded the acceptance of the claim to include right h ip
contusion and lumbosacral strain. OWCP granted appellant a schedule award on September 2,
1998 for five percent permanent impairment of the left lower extremity and four percent permanent
impairment of her right lower extremity, resulting from her accepted lumbar condition. In the last
merit decision of record the Board, by decision dated September 8, 2011, affirmed OWCP’s
May 28 and August 25, 2010 decisions denying appellant’s claims for a recurrence of disability
beginning May 7, 2001 and November 14, 2008.3 On October 12, 2017 appellant requested
reconsideration. By decision dated May 2, 2018, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
By decision dated January 17, 2020, the Board affirmed OWCP’s May 2, 2018 decision. 4
On May 31, 1994 appellant filed a claim for traumatic injury (Form CA-1) alleging that on
that date she sustained injury to her upper chest and back in the performance of duty while “pulling
down her route.” OWCP assigned File No. xxxxxx429 and accepted this claim for right shoulder
strain, cervical strain and right shoulder impingement. It paid appellant wage-loss compensation
on the supplemental rolls from August 13 to 22, 2000. By decision dated December 15, 2009,
OWCP terminated appellant’s compensation benefits. By decision dated August 17, 2011, an
OWCP hearing representative affirmed the termination of appellant’s compensation benefits.
Appellant requested reconsideration on September 2, 2011. On October 7, 2011 OWCP denied
appellant’s request for reconsideration under the clear evidence of error standard of review. On

2

Under OWCP File No. xxxxxx429, the Board has issued the following decisions and orders: Docket No. 12-640
(issued October 22, 2012), denying petition for recon.; Docket No. 12-640 (issued March 14, 2013); Docket No. 10318 (issued September 8, 2010); Docket No. 08-1843 (issued June 15, 2009); Order Remanding Case, Docket No.
06-1211 (issued January 31, 2007); Docket No. 05-1905 (issued March 6, 2006). Under OWCP File No. xxxxxx724,
the Board has issued the following decisions and orders: Docket No. 18-1112 (issued January 17, 2020); Docket No.
11-294 (issued September 8, 2011); Docket No. 09-1549 (issued February 23, 2010); Order Dismissing Appeal,
Docket No. 09-1637 (issued November 23, 2009); Order Dismissing Appeal, Docket No. 05-1915 (issued March 7,
2006), denying petition for recon., Docket No. 05-1915 (issued November 30, 2006). Under OWCP File No.
xxxxxx666, the Board has issued the following decisions and orders: Order Dismissing Appeal, Docket No. 18-0437
(issued July 6, 2018); Docket No. 12-1485 (issued February 5, 2013), denying petition for recon., Docket No. 12-1485
(issued July 10, 2013); Docket No. 10-2298 (issued May 13, 2011); Docket No. 08-1873 (issued January 29, 2009).
3

Docket No. 11-294 (issued September 8, 2011).

4

Docket No. 18-1112 (issued January 17, 2020).

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January 27, 2012 appellant appealed to the Board. By decision dated October 22, 2012, the Board
affirmed the termination of appellant’s compensation benefits.5
On June 25, 2007 appellant filed a traumatic injury claim (Form CA-1) alleging that she
sustained an injury in the performance of duty on June 22, 2007 while sitting at her desk and
working on her computer. She explained that she turned to the right to use the telephone and her
neck “snapped,” resulting in pain in neck and right arm. OWCP assigned File No. xxxxxx666.
After development of the claim, the Board on February 5, 2013 affirmed OWCP’s May 7, 2012
decision, finding that the medical evidence of record did not establish that appellant sustained an
injury in the performance of duty on June 22, 2007.6
On April 3, 2008 appellant filed a claim for occupational disease (Form CA-2), alleging
that she sustained aggravation of a preexisting condition resulting in pain in the neck, right arm,
and right shoulder as a result of sitting at her desk and developing a muscle spasm, turning to the
right, and feeling her neck “pop.” She then alleged that this incident forced a change of duty
assignment. Appellant first became aware of the condition on May 31, 1994 and of its relationship
to her federal employment on June 22, 2007. OWCP assigned File No. xxxxxx390. In the last
merit review of this claim, by decision dated May 28, 2008, it found that appellant had not
established that she sustained an injury in the performance of duty.
On November 16, 2020 appellant requested reinstatement of her wage-loss compensation
and medical benefits under OWCP File No. xxxxxx429. She also requested reconsideration from
OWCP’s decision dated May 7, 2012 in OWCP File No. xxxxxx666, and requested further review
of her March 28, 2005 request for reconsideration as well as a purported denial of her request for
reconsideration dated December 27, 2017. Appellant argued that OWCP erred in inclusion of right
shoulder impingement as a residual and accepted injury; erred not to co nduct a merit review of a
March 28, 2005 request for reconsideration; erred in not referring her to a district medical adviser
for a schedule award decision dated July 28, 1999; erred in not having followed vocational
rehabilitation re-employment procedures; and erred in termination of medical benefits and
compensation based on total disability. She submitted an addendum to her initial reconsideration
request on November 19, 2020, arguing that OWCP had ignored medical and employment
evidentiary documents, failed to administer a loss of wage-earning capacity (LWEC)
determination after being deemed permanently partially disabled, and failed to administer
permanent impairment status in protection of her rights. Appellant submitted a second addendum
to her request on December 10, 2020 in which she argued that OWCP had committed abuse of
discretion. She submitted a third addendum to her request on December 18, 2020 in which she
further argued that OWCP had committed abuse of discretion with regard to termination of her
wage-loss compensation and medical benefits, direction to file a claim for recurrence (Form CA2a), and reporting of injuries under both OWCP File Nos. xxxxxx429 and xxxxxx724. Appellant
submitted a fourth addendum to her request on December 19, 2020 in which she alleged fraud in
several 2007 medical reports. She submitted a fifth addendum to her request on December 22,
2020 in which she argued that a May 7, 2012 decision and purported denial of a December 27,
2012 was in error as OWCP erred in finding that an August 2008 permanent limited-duty job offer
5

Docket No. 12-640, supra note 2.

6

Docket No. 12-1485, supra note 2.

3

was not found suitable. On February 1, 2021 appellant requested a status update regarding a
schedule award claim filed on July 8, 1999. With her request for reconsideration, she submitted:
correspondence dated from 1995 through 2009; a notification of personnel action (Standard Form
(SF)-50) dated August 29, 1995; medical documents dated from 1996 through 2007;
correspondence regarding job offers dated October 30, 1996, January 22, 1997, and October 25,
2002; a union interview regarding grievance dated November 17, 2008; and a report of
investigation by the inspector general of the employing establishment dated May 23, 2007.
By decision dated February 11, 2021, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It stated, “We
did consider your request under 20 C.F.R. § 10.607(b) to determine whether you presented clear
evidence that the Office’s last merit decision was incorrect[.…] You did not present clear evidence
of error. Therefore, your request for reconsideration is denied because it was not received within
the one-year limit.”
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.7 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 8 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). 9 Imposition of this one-year filing limitation does
not constitute an abuse of discretion. 10
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. 11 If a request for
reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit
review.12

7

5 U.S.C. § 8128(a); see M.E., Docket No. 18-1497 (issued March 1, 2019); J.W., Docket No. 18-0703 (issued
November 14, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).
8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

10

See M.E., supra note 7; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB
104 (1989).
11

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
12

G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supra note 9 at Chapter 2.1602.5
(February 2016).

4

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. 14 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 15 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.16 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. 17 To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.18
OWCP’s procedures provide that the term clear evidence of error is intended to represent
a difficult standard. 19 The claimant must present evidence which on its face shows that OWCP
made an error. Evidence such as a detailed, well-rationalized medical report which, if submitted
before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.20 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 21
ANALYSIS
The Board finds that OWCP properly determined that appellant’s November 16, 2020
request for reconsideration was untimely filed.
OWCP’s regulations22 and procedures 23 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
13

A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D.,
Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).
14

Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

15

J.F., supra note 13; Jimmy L. Day, 48 ECAB 652 (1997).

16

Id.

17

Id.

18

J.F., supra note 13; Robert G. Burns, 57 ECAB 657 (2006).

19

F.B., Docket No. 20-0910 (issued April 23, 2021).

20

P.H., Docket No. 19-1354 (issued March 13, 2020); J.S., Docket No. 16-1240 (issued December 1, 2016); supra
note 9 at Chapter 2.1602.5(a) (February 2016).
21

See M.E., supra note7; D.S., Docket No. 17-0407 (issued May 24, 2017).

22

20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB
247 (2005).
23

Supra note 9 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

5

reconsideration within one year also accompanies any subsequent merit decision on the issues. 24
The most recent merit decision under OWCP File No. xxxxxx429 was the Board ’s October 22,
2012 decision. As appellant’s request for reconsideration was received on November 16, 2020,
more than one year after the October 22, 2012 merit decision, the Board finds that it was untimely
filed. Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in
its October 22, 2012 decision.25
The Board further finds, however, that the case is not in posture for decision as to whether
appellant’s November 16, 2020 reconsideration request demonstrated clear evidence of error.
OWCP summarily denied appellant’s request for reconsideration without complying with
the review requirements of FECA and its implementing regulations. 26 Section 8124(a) of FECA
provides that OWCP shall determine and make a finding of fact and make an award for or against
payment of compensation. 27 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the
Director of OWCP shall contain findings of fact and a statement of reasons.28 As well, OWCP’s
procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the
reader to understand the precise defect of the claim and the kin d of evidence which would
overcome it.29
In denying appellant’s untimely reconsideration request, OWCP failed to analyze whether
it was sufficient to demonstrate clear evidence of error. The February 11, 2021 decision simply
noted: “We did consider your request under 20 C.F.R. § 10.607(b) to determine whether you
presented clear evidence that the Office’s last merit decision was incorrect[….] You did not
present clear evidence of error. Therefore your request for reconsideration is denied because it
was not received within the one-year limit.” However, OWCP did not address appellant’s
statements on reconsideration. Furthermore, it provided no discussion relative to the evidence
submitted on reconsideration. 30
The Board finds that OWCP failed to properly explain the findings with respect to the issue
presented so that appellant could understand the basis for the decision, i.e., whether she had

24

20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB
149 (2005).
25

Supra note 21 at § 10.607(b); see M.D., Docket No. 20-0868 (issued April 28, 2021); M.W., Docket No. 17-0892
(issued May 21, 2018); see S.M., Docket No. 16-0270 (issued April 26, 2016).
26

See M.D., id.; T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607.

27

5 U.S.C. § 8124(a).

28

20 C.F.R. § 10.126.

29

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

30

See M.D., supra note 25; Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket
No. 19-0604 (issued September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016).

6

demonstrated clear evidence that OWCP’s last merit decision was incorrect.31 The Board will
therefore set aside OWCP’s February 11, 2021 decision and remand the case for findings of fact
and a statement of reasons, to be followed by an appropriate decision on appellant’s untimely
reconsideration request.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s November 16, 2020
request for reconsideration was untimely filed. However, the Board further finds that the case is
not in posture for decision with regard to whether the untimely reconsideratio n request
demonstrates clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: January 26, 2022
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

31

OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s request demonstrates
clear evidence of error on the part of OWCP. Supra note 9 at Chapter 2.1602.5(a) (February 2016).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Jacksonville, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1890
Issued: June 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 27, 2016 appellant, through counsel, filed a timely appeal from a June 3,
2016 merit decision2 of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the 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

Counsel did not appeal the September 15, 2016 decision of OWCP and, therefore, the Board will not review that
OWCP decision. 20 C.F.R. § 501.3.
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 19, 2015 due to his accepted
conditions of toxic effect of other hydrocarbon gas and central sensitization syndrome; and
(2) whether appellant met his burden of proof to establish continuing disability or residuals on or
after March 19, 2015 due to his accepted conditions.
On appeal counsel contends that the factual and medical evidence was not fully
considered by OWCP. He further contends that the statement of accepted facts (SOAF) was
deficient and his report is of diminished probative value.
FACTUAL HISTORY
On March 13, 2007 appellant, then a 43-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that he developed symptoms of disorientation, watering eyes,
running nose, burning throat, dizziness, nausea, and headache after exposure to fumes from a
roofing repair at the employing establishment on March 8, 2007. OWCP accepted his claim on
May 23, 2007 for toxic effect of other hydrocarbon gas.
On March 3, 2009 appellant underwent a neurotoxicological evaluation by Dr. Josef G.
Thundiyil, a physician Board-certified in emergency medicine, medical toxicology, and
occupational medicine. This testing found that appellant was exposed to volatile organic
compounds, solvents, hydrocarbons, isocyanates, petroleum distillates, polyurethane polymer,
asphalt, toluene, benzoic acid, phenol, Stoddard solvent, butyl benzyl phthalate, methylene bis
phenylisocynate, diphenylmethane disocyanate, polycyclic aromatic hydrocarbons, aluminum,
trimethylbenzene, xylene, nonane, naphthalene, ethylbenzene, and n-propylbenzene.
Dr. Thundiyil noted that appellant’s work exposure occurred over an approximately two-week
period of time spent in an enclosed building with poor ventilation. He found that there had been
no credible environmental air sampling done during the period of highest exposure.
Dr. Thundiyil correlated appellant’s chemical exposures to his symptoms noting that pulmonary
sequelae of bronchospasm, asthma, and reactive airway disease (RAD) were consistent with
exposure to isocyanates. He also determined that development of cognitive changes, neuropathy,
and memory loss were consistent with exposure to solvents, hydrocarbons, and to a lesser extent
isocyanates.
Appellant returned to work on April 1, 2010 performing special projects for the
employing establishment as he was medically disqualified for his date-of-injury position.
In a May 29, 2012 note, appellant’s attending physician, Dr. Terry W. Kuhlwein, a
Board-certified family practitioner, noted appellant’s history of chemical fume exposure at work
and diagnosed RAD status post hydrocarbon exposure, stable; paresthesias of uncertain etiology;
and fatigue. He provided work restrictions including avoiding hydrocarbon fume exposure and
excessive stress. Dr. Kuhlwein indicated that he was uncertain if appellant could “handle the
added stress of the air traffic controller.” He recommended an updated neuropsychiatric
evaluation before appellant’s return to his date-of-injury position.

2

Dr. Kuhlwein completed a note on March 12, 2013 and indicated that appellant had right
shoulder arthroscopic rotator cuff repair on November 17, 2012 which was not work related.
Appellant’s breathing was normal with no dyspnea or wheezing. Dr. Kuhlwein noted that
appellant worked 40 hours a week as a quality insurance agent/instructor. He diagnosed RAD,
status post hydrocarbon exposure, stable; paresthesias, well controlled on medication; and
chronic fatigue/fibromyalgia-like symptoms improved on medication. Appellant expressed
interest in reducing medication dosages. Dr. Kuhlwein provided no work restrictions, but noted
that appellant was aware that it was wise to avoid hydrocarbon fume exposure.
On July 9, 2013 OWCP expanded appellant’s claim to include the additional condition of
central sensitization syndrome as well as toxic effect of other hydrocarbon gas.
In a note dated October 24, 2013, Dr. Kuhlwein reported that appellant was experiencing
“a flare-up of polyarthralgias.” He noted that appellant had a long history of periodic flares of
polyarthralgias since his toxic exposure at work. Appellant reported extreme fatigue, severe
headaches, a rash, increased blurriness of his vision, and increased difficulty breathing.
Dr. Kuhlwein again diagnosed chronic effects from toxic exposure, central sensitization
syndrome, paresthesias, chronic intermittent fatigue, and RAD after hydrocarbon exposure. He
also diagnosed elevated C-reactive protein and polyarthralgias of an uncertain etiology.
Dr. Kuhlwein suggested that this could have an auto-immune etiology or could be related to
appellant’s toxic exposure. He repeated these findings on March 10, 2014.
On November 7, 2013 Dr. Jorge M. Pascual, a Board-certified pulmonologist, noted
appellant’s history of hyperactive airway disease following chemical exposure and reported that
about one month prior to examination appellant developed increased wheezing and cough with
clear mucus. Appellant utilized medication with a return to baseline. Dr. Pascual found that
appellant’s pulmonary function tests were within normal limits and stable.
Dr. Benjamin Wang, a Board-certified rheumatologist, examined appellant on
February 18, 2014 and diagnosed central sensitization syndrome with fibromyalgia features and
possible inflammatory disease.
Dr. Kuhlwein noted that appellant’s symptoms of fibromyalgia and depression had
worsened on April 7, 2014. He reported that appellant was upset as he was medically
disqualified as an air traffic controller. Appellant’s supervisor informed him that his
employment may be terminated.
In an April 15, 2014 memorandum, the employing establishment’s flight surgeon,
Dr. Susan E. Northrup, Board-certified in occupational and aerospace medicine, determined that
appellant was medically disqualified for air traffic control duties. She determined that
appellant’s symptoms of recurrent headaches, intermittent dizziness, neuralgia, myalgia,
arthralgia, and fatigue and his diagnoses of central sensitization syndrome and fibromyalgia were
treated with restricted medications for performing the duties of his date-of-injury position.
On April 30, 2014 Dr. Kuhlwein reported that appellant had increased symptoms of
fibromyalgia and chronic pain. He opined that stress from his decertification as an air traffic
controller with a resulting potential for him to be terminated was increasing his anxiety level and
aggravating his fibromyalgia and chronic pain syndromes. Dr. Kuhlwein found that appellant

3

was totally disabled. He continued to support appellant’s total disability from May 9 through 15,
2014 due to an acute severe flare of symptoms from his work-related condition. In a May 9,
2014 treatment note, Dr. Kuhlwein reported that appellant’s symptoms had improved since
April 30, 2014 as he was not working. He opined, “The stress with his decertification from the
[employing establishment] with a resulting potential for him to be terminated is increasing his
anxiety level and aggravating his fibromyalgia and chronic pain syndrome symptoms.”
Dr. Kuhlwein recommended that appellant remain off work while his medications were titrated.
Dr. James M. Lance, an osteopath, completed a work status report on May 14, 2014 and opined
that appellant was totally disabled due to a temporary flare-up of his work-related conditions
from May 14 through June 14, 2014.
Dr. Kuhlwein completed a note on May 30, 2014 and reviewed appellant’s medications.
He opined that stress contributed to appellant’s increased fibromyalgia symptoms. Dr. Kuhlwein
diagnosed fibromyalgia, acute flare, central sensitization syndrome, paresthesias, and major
depression. He found appellant totally disabled for a month.
Dr. Wang completed a report on May 30, 2014 and indicated that appellant experienced a
high level of work-related stress which worsened his symptoms. He diagnosed central
sensitization syndrome with fibromyalgia manifestations, and depression. Dr. Wang opined, “I
believe that the patient’s work environment was crucial in initiating and perpetuating his central
sensitization syndrome with a chemical exposure likely being an inciting factor, followed by
repeated work-related stress, which served to perpetuate his condition.”
Appellant claimed wage-loss compensation (Form CA-7) from May 1 to 16, 2014. In a
letter dated June 9, 2014, OWCP requested additional factual and medical evidence in support of
appellant’s claim for recurrence of total disability on May 1, 2014.
By decision dated July 14, 2014, OWCP denied appellant’s claim for a recurrence of
disability finding that the medical evidence did not establish a spontaneous change in the nature
and extent of his accepted injury-related conditions. Appellant requested reconsideration of this
decision on August 18, 2014. He submitted a July 25, 2014 report from Dr. Kuhlwein
supporting that his ongoing conditions and disability were due to his accepted employment
injuries.
By claim (Form CA-2a), appellant requested that the accepted conditions be expanded to
include an emotional condition.
In a September 12, 2014 report, Dr. Kuhlwein listed the objective findings consistent
with toxic exposures at work including intermittent hematuria, intermittent renal insufficiency,
intermittent highly elevated C-reaction protein, and audible wheezing. He opined that
appellant’s exposure to hydrocarbon gas had not resolved and that he needed ongoing evaluation
and treatment. Dr. Kuhlwein opined that central sensitization was an amplification of neural
signaling within the central nervous system that elicits pain hypersensitivity and that appellant
met the criteria of this condition. He concluded that, based on appellant’s clinical history, his
symptoms were consistent with the compounds of exposure on March 8, 2007. Dr. Kuhlwein
listed those symptoms as extreme fatigue, lethargy, numbness in hands and feet, abnormal
vibrating sensations in thighs, forearms, hips, genitals, and stomach, as well as shortness of
breath, breathing spasms, coughing, choking, and extreme congestion in his upper airways and
4

throat. He also noted that appellant experienced joint pains, headaches, blurry vision, low back
pain, nausea, irritability, temperature sensitivity, noise sensitivity, as well as feelings of dread
and hopelessness, worry and anger. Dr. Kuhlwein opined that he had increased symptoms in the
summer which necessitated stopping work. He further noted that appellant was diagnosed with
post-traumatic stress disorder (PTSD) and that stress could increase many of his symptoms.
Dr. Kuhlwein concluded that appellant’s current symptoms were “a flare of previous symptoms
that are sequelae from his work-related exposure to hydrocarbons and other products.”
By decision dated September 30, 2014, OWCP denied modification of the July 14, 2014
recurrence decision and found that Dr. Kuhlwein’s report did not sufficiently explain the increase
in appellant’s symptoms which resulted in his claimed recurrence of disability.
On October 9, 2014 OWCP referred appellant and a SOAF, for a second opinion
evaluation with Dr. Lance I. Chodosh, Board-certified in occupational medicine. The August 6,
2014 SOAF indicated that appellant attributed his condition to “fumes from roofing repair” that
had been in the building for days. The SOAF listed appellant’s accepted conditions, his work
duties, and physical requirements of the position. The SOAF indicated that appellant stopped
work on November 27, 2009, returned to limited-duty work on April 1, 2010, and stopped work
again on May 1, 2014.
In an October 23, 2014 report, Dr. Chodosh reviewed appellant’s history of injury as “a
brief, but intense exposure” to hydrocarbon gas, isocyanate gas, and other gases. He noted that
appellant’s current symptoms were somewhat diffuse and nonspecific. Dr. Chodosh reported
that he was not provided with test results, and noted “it is safe to assume the extensive testing
has been done and that it has been essentially normal.” He found no current, relevant objective
findings on physical examination and noted that fibromyalgia and central sensitization syndrome
were diagnoses of exclusion. Dr. Chodosh opined that the diagnosis of toxic effect of other
hydrocarbon gas was a generic category and that he was unable to accept the diagnosis. He
found that appellant was highly symptomatic, but without objective signs of illness or disease,
and opined that the accepted condition of toxic effect of other hydrocarbon gas never existed.
Dr. Chodosh also discounted the accepted diagnosis of central sensitization syndrome opining
that this was a theoretical construct and an umbrella term used to explain various chronic pain
syndromes including fibromyalgia, myofascial pain syndrome, and chronic fatigue syndrome.
He conceded that appellant had symptoms compatible with a diagnosis of central sensitization
syndrome, that the condition persisted, and that there were no objective findings based on the
nature of the syndrome. Dr. Chodosh further opined, “I am unable to conclude that there was an
actual work injury despite the individual’s perception that he was injured. There is no evidence
presented of actual physical exposure.” He concluded that appellant was physically capable of
sedentary work for eight hours a day, but that he may have psychological limitations.
Dr. Chodosh opined that appellant’s treatment for chronic pain syndrome should continue.
Appellant filed a request for reconsideration.
On October 28, 2014 OWCP repeated its denial of modification of appellant’s claim for
recurrence of disability and included the appropriate appeal rights.
By decision dated October 30, 2014, OWCP denied appellant’s emotional condition
claim.
5

In a note dated October 2, 2014, Dr. Kuhlwein continued to support appellant’s ongoing
symptoms and disability due to his conditions of chronic effects from toxic exposure, RADS
status post hydrocarbon exposure, polyarthralgia, fibromyalgia, and central sensitization
syndrome. On November 6, 2014 Dr. Pascual noted appellant’s hyperreactive airway disease
following chemical exposure at work. He reported that appellant continued to use inhaled
steroids for periods of increased respiratory symptoms. Dr. Pascual opined that appellant’s
condition of RAD was permanent and clearly related to the exposure at work. In his
November 13, 2014 note, Dr. Kuhlwein repeated his diagnoses and found dermatitis on
appellant’s forearms. He again opined that appellant’s ongoing conditions were directly and
causally related to an acute exacerbation of work-related diagnoses.
On November 4, 2014 OWCP advised appellant that there was a conflict in the medical
evidence between Drs. Kuhlwein and Chodosh regarding whether he had residuals of his
accepted conditions. In a November 24, 2014 decision, it denied appellant’s request to
participate in the selection of the impartial medical examiner.
In a letter dated December 9, 2014, OWCP referred appellant, a newly dated, but
otherwise duplicated SOAF, dated September 10, 2014, and a list of questions for an impartial
medical examination with Dr. Stuart M. Brooks, a Board-certified internist also Board-certified
in occupational medicine and pulmonology, to resolve the medical conflict regarding whether
appellant had residuals of the March 8, 2007 work injury.
On December 9, 2014 Dr. Kuhlwein reported that appellant had requested to return to
work on December 10, 2014. He consulted with Dr. Majorie J. McMaster, a Board-certified
psychiatrist, and released appellant to return to work four hours a day with a reevaluation after
two weeks. Dr. Kuhlwein completed a narrative report on December 23, 2014 and listed his
disagreements with Dr. Chodosh. He noted that Dr. Chodosh was not provided and did not
review appellant’s testing including his medical toxicology evaluation, abnormal pulmonary
function tests, and elevated C-reactive protein. Dr. Kuhlwein opined that due to these
deficiencies, Dr. Chodosh’s report was not based on a complete medical history. In a separate
note dated December 23, 2014, Dr. Kuhlwein indicated that appellant could work six hours a
day.
On January 8, 2015 OWCP requested a copy of appellant’s March 3, 2009 toxicology
report from Dr. Thundiyil. Appellant resubmitted this report.
In a February 9, 2015 report, Dr. Brooks reviewed the SOAF and appellant’s description
of the work injury. He listed appellant’s current symptoms of headaches, dizziness, and
imbalance, as well as sensitivity to trigger irritants, noise, and light. Dr. Brooks noted his
“claimed” exposure to volatile organic compounds, various solvents and hydrocarbons,
isocyanates, petroleum distillates, polyurethane polymers, asphalt, toluene, benzoate acid,
phenol, Stoddard solvent, butyl benzyl phthalate, methylene phenol isocyanate, diphenylmethane
disocyanate, tri-methyl benzene and “presumably other agents/chemicals.” He reviewed
appellant’s medications and his treatment including appellant’s denial of any preemployment
history of asthma. Dr. Brooks described the accepted employment injury as a ‘“toxic exposure”
and determined that appellant had no current objective examination findings. He described
appellant’s ongoing symptoms of headaches, noting “Supposedly, [appellant’s] last headache
occurred in December 2014.” He reported appellant’s claimed dizziness, imbalance, wavy
6

vision, and feeling “fuzzy headed.” Dr. Brooks noted that appellant claimed persistent and
greater sensitivity to various trigger irritant and odorant products. Appellant also reported noise
and light sensitivity, irritable bowels, and joint, muscle, and body aches. He reported
intermittent finger numbness, vibrating feelings of the muscles in the legs, pain on the bottoms of
both feet, chronic fatigue, fibromyalgia, and respiratory complaints as well as rashes, depression,
PTSD, and allergies to plants and agents. Dr. Brooks noted, “It is my medical opinion that there
are no objective findings substantiating the designation ‘toxic effect of other hydrocarbon gas’…
as the cause (or aggravation) of [appellant’s] current or past symptomatology/complaints.” He
opined that central sensitization syndrome was not a medically accepted diagnosis and did not
offer any definitive criteria. Dr. Brooks noted that this term afforded a theoretical explanation
for the development of augmented pain perception. He opined that using central sensitization
syndrome to explain appellant’s symptoms was “biologically implausible and borders on
quackery.” Dr. Brooks determined that none of appellant’s current symptoms and complaints
were related to the 2007 workplace exposure. He reviewed appellant’s respiratory symptoms
and concluded that it was not mechanistically possible for appellant to have any of the four types
of occupational asthma as he did not meet the clinical criteria of allergic-type, acute irritantinduced asthma or RAD, low intensity chronic exposure dysfunction syndrome, or aggravation
of preexisting asthma. Dr. Brooks opined that appellant’s condition was irritable larynx
syndrome with possible psychological complaints which were not triggered, caused or
aggravated by work exposures. He found that appellant could work eight hours a day in a
sedentary capacity. Dr. Brooks recommended continuing current medical treatment.
In a letter dated February 13, 2015, OWCP proposed to terminate appellant’s medical
benefits and wage-loss compensation based on Dr. Brooks’ report. It afforded him 30 days for a
response if he disagreed with the proposed decision.
Appellant responded to OWCP’s proposed termination in a March 16, 2015 letter
received by OWCP on March 19, 2015. Counsel argued, in his response, that as Dr. Chodosh
had not accepted as factual the diagnosed condition found by OWCP his report was not based on
a proper factual background and could not create a medical conflict. He contended that the
SOAF was insufficient such that Dr. Brooks’ opinion was not the weight of the medical
evidence.
By decision dated March 19, 2015, OWCP terminated appellant’s medical benefits and
wage-loss compensation effective March 19, 2015.
OWCP received additional evidence.
expanded to include an emotional condition.4

Appellant also had requested his claim to be

In a March 22, 2007 memorandum of conference, OWCP noted that 33 claims were filed
for symptoms associated with exposure to roofing remodeling at the employing establishment
from February 28 through March 9, 2007. After contacting the Occupational Safety and Health
Administration (OSHA) the employing establishment was no longer challenging these claims.

4

By decision dated May 12, 2015, an OWCP hearing representative set aside the earlier denial dated October 30,
2014 and remanded the claim for further development.

7

In a memorandum dated August 13, 2015, the employing establishment described the
leakage of an industrial grade contact adhesive from a roofing replacement project into the air
traffic services portion of the building. The contaminated areas were the radar room, break
room, kitchen, main hallway, and administrative offices. The adhesive actually dripped from the
ceiling tiles in the break room onto an employee’s clothing as well as furniture. On March 11,
2007 emergency services were called for employees who were overcome by the fumes. The
employing establishment began mitigation the next day on March 12, 2007. It noted, “The
contamination was so bad that all of the ceiling tiles, carpet, and most of the furniture in these
areas had to be replaced.” Controllers had to work in the bubble for several weeks until the
cleanup was complete. Due to confusion regarding the chemicals and venting of the building
there was no way to tell the extent of the chemical exposure. A status report from the employing
establishment described the exposure to roofing fumes beginning on February 28, 2007 and
ongoing through March 11, 2007 when the offices were relocated.
In an October 31, 2014 report, Dr. Thundiyil opined that appellant had an extensive
chemical exposure from March 2 through 16, 2007, and that appellant had objective respiratory
findings consistent with RAD and neurologic symptoms “which are most probably directly
related to his high dose exposure to these chemicals at work.” He found that appellant was
totally disabled.
In a report dated May 1, 2015, Dr. Kuhlwein opined that appellant’s current condition
was due to an acute exacerbation of appellant’s previous work-related diagnoses for which he
had been under continuous treatment. On June 12, 2015 he repeated his findings and
conclusions. Dr. Wang completed a report on July 30, 2015 and noted that appellant was
experiencing profound levels of fatigue.
The employing establishment provided a list of the chemicals to which appellant was
possibly exposed and the known hazards. This list included Fas N Free Adhesive, D.D.
Aluminum LV, and Rock-It Adhesive. Fas N Free Adhesive was noted to cause allergic
respiratory sensitization, but was considered a slight health concern. The latter two noted
moderate health concerns including moderate irritation to the respiratory system, nausea,
headaches, and dizziness as well as drowsiness, weakness, and fatigue.
OWCP developed an additional SOAF including this information on July 21, 2015.
In an August 13, 2015 memorandum, the employing establishment described appellant’s
2007 exposure to chemicals after its roofing replacement project leaked an industrial grade
contact adhesive into the air traffic services area. The initial spill occurred on February 27, 2007
and was discovered because adhesive dripped from the ceiling tiles in the break room onto an
employee’s clothing. The fumes continued to worsen and on March 11, 2007 rescue services
were called to aid employees who were overcome by fumes. The employing establishment
evacuated some employees on March 12, 2007 and appellant’s workstation was placed in a
plastic bubble with fresh air piped into it. The contamination was such that all of the ceiling
tiles, carpet, and most of the furniture had to be replaced in the radar room, controller’s break
room, kitchen, main hallway, and administrative offices. The air traffic controllers had to work
in the bubble for several weeks until cleaning was completed. Initially, the roofers provided the
wrong safety information and the employing establishment was unaware of the actual chemicals
involved. The building was vented before any air samples were taken and there was no way to
8

discover the actual extent of exposure. The employing establishment’s industrial hygienist
informed workers of the possibility of renal and respiratory issues as a result of the exposure to
isocyanates and other chemicals.
Following OWCP’s remand of May 12, 2015, appellant was referred to a second opinion
examination with Dr. Anjali Pathak, Board-certified in adolescent medicine and psychiatry. She
provided a report dated august 27, 2015.
Counsel requested reconsideration of the September 30, 2014 recurrence decision on
September 30, 2015. He noted that appellant had returned to work on December 10, 2015.
On October 5, 2015 based on the report of Dr. Pathak, OWCP accepted additional
conditions of PTSD and major depressive disorder based on a second opinion evaluation on that
matter.
Appellant submitted additional medical evidence including an October 22, 2015 report
from Dr. Sara Filmalter, a sports medicine specialist. She noted symptoms of body pain,
exhaustion, headaches, and rash. Dr. Filmalter diagnosed chronic effects from toxic exposure,
RAD after hydrocarbon exposure, polyarthralgia, central sensitization syndrome, paresthesias,
chronic fatigue, and intermittent elevated C-reactive protein, PTSD, major depressive disorder,
generalized anxiety disorder, and dermatitis. Appellant had fibromyalgia treatment with
Barbara K. Bruce, a licensed psychologist on September 23 and 24, 2015.
Dr. Kuhlwein completed a report on December 18, 2015. He noted appellant’s accepted
conditions and indicated that appellant’s symptoms had been stable since April 2014. On
April 30, 2014 appellant’s symptoms of daily headaches, painful muscle knots in his back,
extreme fatigue, and excessive sleepiness became so severe that he was totally disabled.
Dr. Kuhlwein concluded, “His absence from work during the period May 1 through December 9,
2014 was medically necessary and caused by sequelae resulting from his on-the-job injury. This
episode was an acute exacerbation (temporary worsening) of his previous work-related
conditions.”
In a decision dated January 20, 2016, OWCP modified the September 30, 2014 decision
to reflect that appellant had established a recurrence of disability and authorized compensation
benefits from the period May 1 through December 9, 2014.
Dr. Kuhlwein completed a note on February 23, 2016 and continued to support that
appellant had symptoms of all-over body pain and fatigue. He repeated his diagnoses of chronic
effects from toxic exposure, polyarthralgia, fibromyalgia, central sensitization syndrome,
paresthesias, chronic intermittent fatigue, intermittent elevated C-reactive protein, major
depressive disorder, PTSD, generalized anxiety disorder, and dermatitis.
Counsel requested reconsideration of the March 19, 2015 termination decision on
March 18, 2016. He argued that, as OWCP’s hearing representative had found the SOAF
inadequate to address appellant’s emotional conditions claims, (in the May 12, 2015 decision)
the reports from Dr. Chodosh and Dr. Brooks could not be considered to have been based on a

9

proper factual background.5 He contended that the SOAF provided these OWCP physicians did
not include a comprehensive list of appellant’s specific chemical exposures, medical treatment,
and diagnostic tests. Counsel cited OWCP’s procedures regarding SOAF.
Dr. Kuhlwein completed notes on May 6 and 27, 2016 as well as June 1, 2016 repeating
his diagnoses. Dr. Pascual examined appellant on May 6, 2016 and diagnosed hyperreactive
airways disease following chemical exposure. Dr. McMaster examined appellant on May 9
and 17, 2016 and continued to diagnose PTSD and major depressive disorder, partially treated.
In a June 3, 2016 decision, OWCP denied modification of the March 19, 2015
termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.7 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.8 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.9
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.10 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.11
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF.12 OWCP procedures dictate that when an OWCP medical
5

Counsel referenced a May 12, 2015 hearing representative’s decision with regard to the emotional condition
aspect of the present claim wherein she had directed OWCP to further develop the factual and medical evidence.
6

Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

Id.

8

Furman G. Peake, 41 ECAB 361, 364 (1990).

9

Id.

10

5 U.S.C. § 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

11

R.C., 58 ECAB 238 (2006).

12

K.V., Docket No. 15-0960 (issued March 9, 2016); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).

10

adviser, second opinion specialist, or referee physician renders a medical opinion based on a
SOAF which is incomplete or inaccurate or does not use the SOAF as the framework in forming
his or her opinion, the probative value of the opinion is seriously diminished or negated
altogether.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 18, 2015 due to his accepted
conditions of toxic effect of other hydrocarbon gas and central sensitization syndrome.
OWCP accepted appellant’s claim for the physical conditions of toxic effect of other
hydrocarbon gas and central sensitization syndrome. In its termination decision, it determined
that the special weight of the medical evidence rested with Dr. Brooks, designated as the
impartial medical specialist. The Board finds that Dr. Brooks was not properly designated as the
impartial medical specialist and that his report is of little probative weight.
Appellant’s attending physicians supported his ongoing disability and medical residuals
due to his accepted conditions. OWCP referred appellant for a second opinion with
Dr. Chodosh, to address ongoing disability and medical residuals. The Board finds that
Dr. Chodosh’s opinion was based on a deficient SOAF. To assure that the report of a medical
specialist is based upon a proper factual background, OWCP provides information through the
preparation of the SOAF.14 OWCP’s procedures require that the SOAF include appellant’s
diagnostic tests and a specific description of the exposure factors,15 such as the period and length
of exposure, and the concentration of noxious substances in the air.16 The Board notes that the
August 6, 2014 SOAF did not describe appellant’s employment exposures in any detail. The
SOAF also failed to include neurotoxicological testing by Dr. Thundiyil. Due to these
deficiencies, Dr. Chodosh reported that he was not provided with test results, and noted “it is
safe to assume the extensive testing has been done and that it has been essentially normal.” He
further opined, “I am unable to conclude that there was an actual work injury despite the
individual’s perception that he was injured. There is no evidence presented of actual physical
exposure.” His report, therefore, was not based on a proper history or background. The Board
has found that when an OWCP referral physician renders a medical opinion based on a SOAF
which is incomplete or inaccurate, the probative value of the opinion is seriously diminished or
negated altogether.17 As Dr. Chodosh’s report was based on an inadequate SOAF, his report
lacks the probative value to create a conflict with the reports of appellant’s attending physicians.
Since there was no existing conflict of medical opinion evidence at the time of the referral to

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(September 1995); see L.J., Docket No. 14-1682 (issued December 11, 2015).
14

N.G., Docket No. 15-0567 (issued April 27, 2015).

15

Id.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4(a)(4)
(September 2009).
17

Supra note 12.

11

Dr. Brooks, he cannot be properly designated as an impartial medical examiner and his report is
not entitled to special weight.18
As there is no medical evidence based on a complete and accurate SOAF establishing that
appellant’s disability and medical residuals due to his accepted conditions of toxic effect of other
hydrocarbon gas and central sensitization syndrome had ended, OWCP failed to meet its burden
of proof to terminate appellant’s wage-loss and medical benefits effective March 19, 2015.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 19, 2015 due to his accepted
conditions of toxic effect of other hydrocarbon gas and central sensitization syndrome.
ORDER
IT IS HEREBY ORDERED THAT June 3, 2016 decision of the Office of Workers’
Compensation Programs is reversed.19
Issued: June 5, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

18

D.J., Docket No. 06-0792 (issued November 6, 2006); Cleopatra McDougal-Saddler, 47 ECAB 480,
489 (1996).
19

In light of the disposition of the first issue, the second issue is moot.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, CITY GATE POST
OFFICE, Columbus, OH, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-425
Issued: June 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 1, 2011 appellant filed a timely appeal from the July 20, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. As more than 180 days elapsed from the last merit decision of November 3,
2010 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 does not have jurisdiction over the merits of this
case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence to OWCP after its July 20, 2011 decision and to the Board on appeal.
However, the Board lacks jurisdiction to review evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1);
Sandra D. Pruitt, 57 ECAB 126 (2005).

On appeal, appellant contends that, after her surgery, she returned to work but
experienced numbness and tingling in her hand going up her arm.
FACTUAL HISTORY
On May 24, 2007 appellant, then a 63-year-old supervisor, filed an occupational disease
claim alleging carpal tunnel syndrome as a result of pushing mail and casing mail every day for 8
to 10 hours. She also worked on a computer as part of her federal employment. On
November 27, 2007 OWCP accepted appellant’s claim for left carpal tunnel syndrome.
On January 22, 2009 OWCP issued a schedule award for a 25 percent impairment of
appellant’s left arm. On October 5, 2010 appellant filed a claim for an additional schedule
award. The claim was denied by OWCP in a decision dated November 3, 2010. OWCP found
the award was being sought as a result of duties after appellant’s return to work following
surgery. It advised appellant to file a new claim for a new period of work exposure following
her return to work on July 7, 2008 after surgery.
On April 10, 2011 appellant requested reconsideration.
By decision dated July 20, 2011, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
On January 22, 2009 OWCP issued appellant a schedule award for a 25 percent
impairment to her left arm and denied her request for an additional schedule award. As

3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on [her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

2

explained above, the merits of the case are not before the Board. The only issue on appeal is
whether OWCP properly denied reconsideration.
Appellant submitted no new evidence with her April 10, 2011 request for reconsideration.
She did not contend that OWCP erroneously interpreted a specific point of law or advance a
relevant legal argument not previously considered by OWCP. Accordingly, the Board finds that
OWCP properly determined that appellant was not entitled to further review of the merits of her
claim pursuant to any of the three requirements under section 10.606(b)(2) and properly denied
her April 10, 2011 request for reconsideration.7
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 20, 2011 is affirmed.
Issued: June 19, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

7

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under 20 C.F.R. § 10.606(b)(2), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Richmond, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0014
Issued: July 29, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On October 1, 2018 appellant filed a timely appeal from an August 2, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her request for a
review of the written record as untimely filed. The Clerk of the Appellate Boards docketed the
appeal as No. 19-0014.
The Board, having duly reviewed the case record, finds that OWCP erred in concluding
that appellant’s request for a review of the written record was untimely filed. Section 8124(b)(1) of
the Federal Employees’ Compensation Act provides that a claimant not satisfied with a decision
of OWCP has a right, upon timely request, to a hearing or a review of the written record before a
representative of OWCP.1 A claimant is not entitled to a hearing or review of the written record
if the request is not made within 30 days of the date of issuance of the decision as determined by
the postmark or other carrier’s date marking of the request.2

1

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

2
20 C.F.R. § 10.616(a); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).

Following OWCP’s January 25, 2018 initial merit decision, appellant completed an appeal
request form, postmarked on February 22, 2018. She requested an oral hearing, a review of the
written record, and reconsideration by placing an x in each of the categories.
By letter dated March 23, 2018, OWCP notified appellant that it had received her appeal
request form, however, she had selected multiple appeal options and it was unable to determine
which option she was selecting. It requested that she select a single option. On April 26, 2018
OWCP received appellant’s request for a review of the written record, postmarked April 17, 2018.
By decision dated August 2, 2018, OWCP denied appellant’s request for review of the
written record as untimely filed. It noted that her request was postmarked on April 17, 2018, and
that because it was not made within 30 days of the January 25, 2018 decision, she was not, as a
matter of right, entitled to a review of the written record.
The Board finds, however, that while appellant clarified and perfected her request for
review of the written record in April 2018, her initial request for review was postmarked on
February 22, 2018, within 30 days of the January 25, 2018 decision. As appellant’s request for
review of the written was timely filed on February 22, 2018, the Board will set aside the August 2,
2018 decision and remand the case for review of the written record by an OWCP hearing
representative.
IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded for further action
consistent with this order of the Board.

2

Issued: July 29, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3