United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.B., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

LANGLEY AIR FORCE, Langley, VA, Employer 

__________________________________________ 

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Docket No. 14-1232 

Issued: October 8, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 5, 2014 appellant filed a timely appeal from an April 8, 2014 decision of the 

Office of Workers’ Compensation Programs (OWCP), which denied his reconsideration request 

on the grounds that it was untimely filed and failed to present clear evidence of error. Because 

more than 180 days has elapsed between the most recent OWCP merit decision, dated March 5, 

2013 and the filing of this appeal on May 5, 2014 the Board lacks jurisdiction to review the 

merits of his claim pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

reconsideration was untimely filed and did not establish clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 59-year-old supervisor, filed a Form CA-2 claim for benefits on May 23, 

2012 alleging an emotional condition causally related to employment factors. 

In a report dated March 28, 2012, Dr. Howard J. Bierenbaum, Ph.D. in clinical 

psychology, stated that appellant had encountered increasing difficulties over the previous five 

months since being transferred to his current position. He advised that appellant had experienced 

depression, insomnia, loss of concentration, persistent worry, episodes of panic, social 

withdrawal and concerns of losing control. Dr. Bierenbaum advised that appellant was 

concerned about his ability to manage these symptoms, perform in the workplace and the fear 

that he might lose his job in his last year of civil service employment prior to retirement. He 

asserted that there was evidence for an acute major depressive episode, characterized by some 

agitation and erratic behavior, in addition to an anxiety disorder. Dr. Bierenbaum recommended 

treatment with a physician or psychiatrist, to reduce appellant’s symptoms of anxiety, irritability 

and depression and psychotherapy, to examine the sources of his distress. He also recommended 

removal from the sources of appellant’s acute distress, to reduce his acute agitation. 

In a statement dated November 1, 2012, appellant denied management’s accusations that 

he used offensive language to his subordinates. He alleged that he had been being singled out by 

management for investigation and unfairly accused of abusive behavior. Appellant felt that he 

had received an unfair performance appraisal and was the target of unfounded accusations. The 

accusations were unreasonable not based on actual facts and they resulted in his stress, major 

depression and anxiety. Appellant believed that he might “snap” under the pressure and tension 

caused by interacting with his immediate supervisor and work demands. Management denied his 

reassignment request. Appellant worried about managing his symptoms and his assigned duties. 

He alleged that his supervisor placed pressure on him because of a lack of concern and 

comments unreasonable demands. Appellant further alleged that management’s demands did not 

take into account his advanced age. 

By decision dated March 5, 2013, OWCP denied the claim, finding that appellant failed 

to establish compensable factors of employment. 

In a report dated November 6, 2013, Dr. Bierenbaum reiterated the findings, diagnoses 

and conclusions contained in his March 28, 2012 report. He stated that appellant’s history 

suggested vulnerabilities to depression, generalized anxiety and post-traumatic stress, 

exacerbated by his October 2011 transfer to his current work assignment. Dr. Bierenbaum 

related an acceleration in these symptoms over the past six months, which left appellant unable 

to meet his work responsibilities. He advised that appellant showed a positive response to 

psychotherapy and sick leave, however, he experienced anxiety when anticipating the stresses 

associated with a return to the work setting. Dr. Bierenbaum reported that management was not 

able to offer appellant a less stressful work assignment and had offered him medical retirement. 

In a report dated May 14, 2012, received by OWCP on March 13, 2013, it was indicated 

recent treatment by a psychiatrist and psychologist for various mental issues, including anxiety 

and panic attacks. However, report was incomplete, with pages missing and was not signed by a 
3

physician. Appellant related that his medical providers had encouraged him not to return to 

work. 

By letter dated March 5, 2014, received by OWCP on March 13, 2014 appellant 

requested reconsideration. 

By decision dated April 8, 2014, OWCP denied appellant’s application for review on the 

grounds that it was untimely received on March 13, 2014 and did not establish clear evidence of 

error. 

LEGAL PRECEDENT 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA.2 It will not review a decision denying or terminating a 

benefit unless the application for review is filed within one year of the date of that decision.3

 

When an application for review is untimely, OWCP undertakes a limited review to determine 

whether the application presents clear evidence that its final merit decision was in error.4

 It will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth 

under section 10.607 of OWCP regulations, if the claimant’s application for review shows clear 

evidence of error on the part of OWCP.5 

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which was decided by OWCP.6 The evidence must be positive, precise and explicit and must 

manifest on its face that OWCP committed an error. Evidence which does not raise a substantial 

question concerning the correctness of OWCP’s decision is insufficient to establish clear 

evidence of error. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary conclusion. 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. To show clear 

evidence of error, the evidence submitted must be of sufficient probative value to prima facie

shift the weight of the evidence in favor of the claimant and raise a substantial question as to the 

correctness of OWCP’s decision.7 

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP 

made an error (for example, proof that a schedule award was miscalculated). Evidence such as a 

detailed, well-rationalized medical report which, if submitted before the denial was issued, 

 2 See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004). 

3

 20 C.F.R. §10.607(a); S.S., Docket No. 13-2151 (April 1, 2014). 

4 D.G., 59 ECAB 455 (2008). 

5

 20 C.F.R. § 10.607. 

6 See F.R., Docket No. 09-575 (issued January 4, 2010); S.D., 58 ECAB713 (2007). 

7 J.S., Docket No. 10-385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006). 
4

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.8

 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.9 

ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

application for review. OWCP’s procedures provide that the one-year time limitation period for 

requesting reconsideration begins on the date of the original OWCP decision.10 A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues. 

The Board notes that, as of August 29, 2011, the timeliness of a reconsideration request is 

determined by the date the request is received by OWCP.11 

In the present case, the last merit decision was issued in this case on March 5, 2013. As 

appellant’s March 5, 2014 request for reconsideration was not received by OWCP until 

March 13, 2014 and it was therefore untimely filed. Consequently, appellant must demonstrate 

clear evidence of error by OWCP in denying his claim for compensation. 

The underlying claim for compensation was denied on the grounds that appellant had not 

established a compensable factor of employment. In the last merit review of this case, OWCP 

determined that he had not established that his allegations regarding his work factors, including 

that the employing establishment’s investigation was instigated by someone who had a vendetta 

against him or that during the investigation individuals were coerced into giving statements or 

that the investigation prejudged him or that he was undermined in favor of subordinates. It also 

determined that appellant had not established or abuse error by the employing establishment in 

initiating its investigation based a suggestion of inappropriate conduct. Reassignment of 

appellant to a new position, denial of an alternate work schedule and denial of authorization of 

physical training likewise were not sufficient. 

On reconsideration appellant submitted the November 6, 2013 report from 

Dr. Bierenbaum and the unsigned, partial copy of a May 14, 2012 report. These reports do not 

address the basis upon which the claim was denied. Appellant did not submit evidence which, 

on its face, establishes a compensable factor of employment. The evidence submitted on 

reconsideration therefore does not establish clear evidence of error in the denial of appellant’s 

claim. 

 8 James Mirra, 56 ECAB 738 (2005). 

9 See S.S., supra note 4. 

10 20 C.F.R. § 10.607(a). 

11 Supra see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e) 

(August 29, 2011). 
5

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration as it 

was untimely filed and insufficient to establish clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the April 8, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 8, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board