United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, St. Louis, MO, Employer 

__________________________________________ 

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Docket No. 14-667 

Issued: May 7, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On February 3, 2014 appellant filed a timely appeal from a nonmerit August 9, 2013 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for 

reconsideration as it was not timely filed and failed to present clear evidence of error. The most 

recent merit decision of record is dated January 31, 2012. There is no merit decision within 180 

days of February 3, 2014, the date appellant filed her appeal with the Board. Therefore, 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. 

ISSUE 

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

the grounds that it was not timely filed and failed to present clear evidence of error. 

 

 1 5 U.S.C. § 8101 et seq. 
2

On appeal, counsel asserts that the medical record establishes that she sustained a 

respiratory condition due to exposure to mold at work.2

FACTUAL HISTORY 

On July 28, 2011 appellant, then a 35-year-old general attorney, filed an occupational 

disease claim (Form CA-2) alleging that she sustained upper respiratory infections and 

gastrointestinal issues related to “mold poisoning.” She asserted that she was exposed to mold in 

areas of Building 25, including her paralegal’s office. Appellant asserted that, when a ceiling in 

an unspecified area was replaced on June 25, 2011, allegedly due to mold contamination, her 

“symptoms all returned tenfold and [she] realized the stemmed from the prevalent mold.” 

In an August 25, 2011 letter, OWCP advised appellant of the additional evidence needed 

to establish her claim, including a detailed description of the alleged workplace exposures, the 

precise locations of any mold, the length and frequency of her exposures, and “supporting 

physical evidence or witness statements” to support her claim. It also requested a statement from 

her attending physician explaining the medical reasons why those exposures would cause the 

claimed conditions. OWCP afforded appellant 30 days to submit such evidence. 

In a September 23, 2011 letter, the employing establishment noted that a mold survey 

was conducted “for the office where Regional Counsel is located” and that the “two employees 

who filed the claim were allowed to work from home until they were moved to another building 

while they are working on replacing the tiles.” 

In a September 29, 2011 decision, OWCP denied appellant’s claim. It found that she did 

not submit sufficient evidence to establish that she was exposed to mold at work as alleged. 

In an October 28, 2011 letter, appellant requested reconsideration. She submitted a 

July 27, 2011 industrial hygiene survey showing the presence of mold spores in Building 25, 

particularly in Small Conference Room No. 319 and an air vent in Library No. 320. Appellant 

also provided the August 1 and 30, 2011 reports of Dr. Kirk A. Nelson, an attending osteopathic 

physician, opining that workplace exposure to mold caused allergic asthma. She also submitted 

August 1 and 30, 2011 medical history forms, an August 2, 2011 spirometry report and 

August 22, 2011 chest x-ray. 

By decision dated January 31, 2012, OWCP denied modification, finding that the 

additional evidence submitted was insufficient to establish fact of injury. It found that the new 

documents did not establish that appellant was exposed to mold at work. 

In a January 31, 2013 form, received by OWCP on February 6, 2013, appellant requested 

reconsideration, asserting that she developed asthma and reactive airway disease because the 

employing establishment knew that mold was present in her work area but unreasonably delayed 

abatement procedures. She submitted October 8, 2012, June 26 and August 8, 2013 reports from 

 2

 Appellant submitted new evidence accompanying her request for an appeal. The Board may not consider new 

evidence for the first time on appeal that was not before OWCP at the time it issued the final merit decision in the 

case. 20 C.F.R. § 501.2(c). 
3

Dr. Nelson relating appellant’s account of respiratory issues developing after workplace 

exposures to mold in 2011. Dr. Nelson opined that the exposures aggravated appellant’s 

extrinsic asthma. 

Appellant also submitted a December 23, 2013 employing establishment form approving 

her request to telework to avoid mold exposure. She also provided a March 2, 2012 industrial 

hygiene report summarizing the July 27, 2011 mold spore report. 

By decision dated August 9, 2013, OWCP denied appellant’s request for reconsideration 

on the grounds that her request was not timely filed and failed to present clear evidence of error. 

It found that her letter was received on February 6, 2013, more than one year after the 

January 31, 2012 decision, the final merit decision in the claim. OWCP further found that 

Dr. Nelson’s October 8, 2012 report did not address the critical issue of fact of injury, as his 

opinion did not establish that appellant was exposed to mold at work. 

LEGAL PRECEDENT 

Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.4 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.5

 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP will 

not review a decision denying or terminating a benefit unless the application for review is 

received within one year of the date of that decision.6 The Board has found that the imposition 

of this one-year time limitation does not constitute an abuse of the discretionary authority 

granted OWCP under 5 U.S.C. § 8128(a).7

 In those cases where requests for reconsideration are not timely filed, OWCP must 

nevertheless undertake a limited review of the case to determine whether there is clear evidence 

of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.8 

OWCP regulations state that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the claimant’s 

request for reconsideration shows “clear evidence of error” on the part of OWCP.9

 3

 5 U.S.C. § 8128(a). 

4 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

5 Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

6

 20 C.F.R. §§ 10.607(a); 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary 

authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990). 

7 Thankamma Mathews, supra note 4; Jesus D. Sanchez, supra note 5. 

8

 20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 4. 

9 Id. at § 10.607(b). 
4

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

which was decided by OWCP.10 The evidence must be positive, precise and explicit and must be 

manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

clear evidence of error.12 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.13 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 by OWCP.14 The Board must make an 

independent determination of whether a claimant has submitted clear evidence of error on the 

part of OWCP such that OWCP abused its discretion in denying merit review in the face of such 

evidence.15

ANALYSIS 

In its August 9, 2013 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It issued its most recent merit decision on January 31, 2012. 

Appellant’s reconsideration request was received by OWCP on February 6, 2013, more than one 

year after issuance of the January 31, 2012 decision. OWCP denied the request by August 9, 

2013 decision on the grounds that it was not timely filed and failed to present clear evidence of 

error. As it is now settled that the February 6, 2013 reconsideration request was not timely filed, 

it must now be determined whether the request demonstrated clear evidence of error in OWCP’s 

January 31, 2012 merit decision. 

In her February 6, 2013 letter, appellant asserted that the employing establishment knew 

that mold was present in her work area but unreasonably delayed the abatement procedures. The 

Board finds that this argument does not raise a substantial question as to whether OWCP’s 

January 31, 2012 decision was in error or shift the weight of the evidence in her favor. 

Therefore, it is insufficient to establish clear evidence of error. 

The October 8, 2012, June 26 and August 13, 2013 reports from Dr. Nelson, an attending 

Board-certified orthopedic surgeon, duplicate his August 1 and 31, 2011 reports previously of 

record. Similarly, the March 2, 2012 industrial hygiene report summarizes the July 27, 2011 

industrial hygiene survey previously of record. The Board has held that evidence that repeats or 

duplicates evidence previously submitted is insufficient to prima facie shift the weight of the 

evidence in favor of the claimant.16 The term clear evidence of error is intended to represent a 

 10 Thankamma Mathews, supra note 4. 

11 Leona N. Travis, 43 ECAB 227 (1991). 

12 Jesus D. Sanchez, supra note 5. 

13 Leona N. Travis, supra note 11. 

14 Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

15 Gregory Griffin, supra note 6. 

16 D.E., 59 ECAB 438 (2008). 
5

difficult standard. Appellant must present evidence which on its face shows that OWCP made 

an error.17

The December 23, 2013 accommodations form does not address the underlying issue of 

whether appellant was actually exposed to mold at work in 2011. Evidence which is irrelevant 

to the claim does not establish clear evidence of error.18 

The Board finds that the additional evidence submitted does not demonstrate clear 

evidence of error. Appellant has not provided argument or evidence of sufficient probative value 

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

correctness of OWCP’s January 31, 2012 merit decision. Consequently, OWCP properly denied 

appellant’s reconsideration request as her request does not establish clear evidence of error. 

On appeal, appellant asserts that the medical evidence is sufficient to establish that 

workplace mold exposures caused the claimed respiratory condition. This argument pertains to 

the merits of the claim, which are not before the Board on the present appeal. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated August 9, 2013 is affirmed.

Issued: May 7, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Annie L. Billingsley, 50 ECAB 210 (1998). 

18 Leona N. Travis, supra note 11.