United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.B., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Morgantown, WV, 

Employer 

__________________________________________ 

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Docket No. 14-141 

Issued: May 14, 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 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 28, 2013 appellant timely appealed the July 12, 2013 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration. The 

latest merit decision is dated November 22, 2010, which is more than 180 days prior to the filing 

of the instant appeal. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction extends only to the July 12, 2013 nonmerit 

decision. 

ISSUE 

The issue is whether OWCP properly declined to reopen appellant’s case for merit review 

under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

FACTUAL HISTORY 

This case was previously before the Board. Appellant, a 70-year-old cook foreman, last 

worked for the employing establishment in August 1978.2

 Prior to his federal civilian service, he 

served on active duty with the U.S. Army from October 1967 through February 1976. Medical 

records from the Department of Veterans Affairs note that, in July 1997, appellant was diagnosed 

with delayed onset post-traumatic stress disorder (PTSD). It paid disability benefits for his 

service-connected PTSD.3

 

On November 20, 2008 appellant filed an occupational disease claim (Form CA-2) for 

PTSD. He attributed his condition to a constructive termination in August 1978.4 Appellant first 

became aware of the employment-related nature of his PTSD on February 15, 2004. He claimed 

to have promptly notified the employing establishment of his condition at that time. 

Dr. Martin L. Boone, Ph.D., a neuropsychologist, evaluated appellant on July 7, 2004. 

He diagnosed delayed onset PTSD. Dr. Boone indicated that appellant had likely been 

experiencing some level of PTSD since returning from Vietnam in 1968. He also noted that 

appellant reported experiencing a substantial increase in symptoms after a very stressful 

occupational experience associated with his employment at the employing establishment in 

Morgantown in the late 1970s. Appellant told Dr. Boone that he was forced to resign or be fired, 

without any apparent justification. Consequently, he was extremely worried about his finances. 

Dr. Boone explained that anxiety disorders were known to exacerbate at times of increased 

stress. 

By decision dated July 10, 2009, OWCP denied appellant’s November 20, 2008 claim as 

untimely filed pursuant to 5 U.S.C. § 8122. It determined that Dr. Boone’s July 2004 evaluation 

put appellant on notice of the possible relationship between his PTSD and his federal 

employment; but he waited four years before filing his occupational disease claim. 

Consequently, appellant failed to meet the three-year filing requirement under 5 U.S.C. § 8122. 

On December 14, 2009 the Branch of Hearings and Review affirmed the July 10, 2009 decision. 

On November 22, 2010 the Board affirmed the hearing representative’s decision.5

Appellant sought reconsideration before OWCP, which was denied by decision dated 

January 5, 2011. He then sought review before the Board; however, his September 13, 2011 

appeal was untimely. By order dated January 25, 2012, the Board dismissed the appeal.6

 On 

 2

 Between July 1976 and August 1978, appellant worked approximately 18 months at the Robert F. Kennedy 

Youth Center, Federal Correctional Institution (FCI), Morgantown, WV. Personnel records (Standard Form 52) 

indicate that he resigned effective August 18, 1978. 

3

 Appellant also received disability benefits from the Social Security Administration for anxiety disorders. 

4

 Appellant claimed that he was forced to quit. 

5

 Docket No. 10-673 (issued June 10, 2011) (the Board issued an order denying appellant’s petition for 

reconsideration). 

6

 Docket No. 12-4 (issued January 25, 2012) (the Board’s prior decision and orders are incorporated herein by 

reference). 
3

July 11, 2012 appellant petitioned the Board to reconsider its January 25, 2012 order, but his 

petition was also untimely. He sought further review in U.S. District Court; however, on 

March 21, 2013 the court dismissed his civil complaint for lack of subject matter jurisdiction. 

On April 8, 2013 appellant requested reconsideration before OWCP. He argued that he 

timely notified the employing establishment of his injury in 2004 when he filed an Equal 

Employment Opportunity (EEO) discrimination complaint.7

 Appellant contended that the 

employing establishment failed to inform OWCP of his injury or to inform him that he had to file 

a FECA claim for PTSD instead of an EEO complaint. He submitted a copy of two statutory 

provisions (5 U.S.C. §§ 8120 and 8122), an April 13, 2004 EEO complaint, an EEO counselor’s 

report and employee personnel records listing his hourly wages as a cook foreman effective 

May 7, 1978. 

By decision dated July 12, 2013, OWCP denied appellant’s April 8, 2013 request for 

reconsideration. It found that the request was untimely and he failed to establish clear evidence 

of error. 

LEGAL PRECEDENT 

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

matter of right.8 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.9 One such limitation is that the application for 

reconsideration must be received within one year of OWCP decision for which review is 

sought.10 When a request for reconsideration is untimely, OWCP will undertake a limited review 

to determine whether the application presents clear evidence of error on the part of OWCP in its 

 7

 In an April 13, 2004 EEO complaint (Form DOJ-201A), appellant alleged discrimination based on mental 

disability (PTSD and alcoholism). The discrimination allegedly occurred on August 9, 1978. Appellant believed 

that he was discriminated against when he was forced to resign from FCI Morgantown. The employing 

establishment dismissed the EEO complaint as untimely. There was a 45-day time limitation within which to 

initiate an EEO complaint. In appellant’s case, he waited more than 25 years before contacting an EEO counselor 

regarding discriminatory activity that allegedly occurred in August 1978. The Equal Employment Opportunity 

Commission subsequently upheld the dismissal of appellant’s EEO complaint, as did the U.S. District Court. 

8

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

9

 20 C.F.R. § 10.607. 

10 Id. at § 10.607(a). 
4

most recent merit decision.11 The application must establish, on its face, that such decision was 

erroneous.

12

ANALYSIS 

OWCP’s last merit decision is dated December 14, 2009, which the Board affirmed by 

decision dated November 22, 2010. It subsequently denied reconsideration in a decision dated 

January 5, 2011. Appellant filed an untimely appeal of the January 5, 2011 nonmerit decision, 

which the Board dismissed by order dated January 25, 2012. His latest request for 

reconsideration was dated April 8, 2013 and received on April 15, 2013.13 

The April 8, 2013 request for reconsideration was more than one year after the most 

recent merit decision; therefore, appellant’s request is untimely. Consequently, he must 

demonstrate clear evidence of error on the part of OWCP in finding his November 20, 2008 

claim untimely pursuant to 5 U.S.C. § 8122. 

Section 8122(a) of FECA provides that an original claim for compensation for disability 

or death must be filed within three years after the injury or death.14 A claim filed outside this 

timeframe must be disallowed unless the immediate superior had actual knowledge of the injury 

or death within 30 days.15 An otherwise untimely claim will also be considered timely if the 

immediate superior received written notice within 30 days of the date of injury or death.16 

However, in a case of latent disability, the time for filing a claim does not begin to run until the 

employee has a compensable disability and is aware or reasonably should have been aware, of 

the causal relationship between the disability and the employment.17 An employee with actual or 

constructive knowledge of his or her employment-related condition, who continues to be 

exposed to injurious working conditions, must file his or her claim within three years of the date 

 11 Id. at § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise and 

explicit and it must be apparent on its face that OWCP committed error. See Leona N. Travis, 43 ECAB 227 (1991). 

It is not enough to merely show that the evidence could be construed to produce a contrary conclusion. Id. 

Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not 

only be of sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but 

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. Thankamma Mathews, 44 ECAB 765, 

770 (1993). 

12 20 C.F.R. § 10.607(b). 

13 The Board’s November 22, 2010 decision is the most recent merit decision of record. 

14 5 U.S.C. § 8122(a). 

15 The knowledge must be such to put the immediate superior reasonably on notice of an on-the-job injury. Id. at 

§ 8112(a)(1).

16 Id. at § 8122(a)(2) (written notice must be in accordance with 5 U.S.C. § 8119).

17 Id. at § 8122(b); 20 C.F.R. § 10.101(c). 
5

of last exposure to the implicated conditions.18 In this case, the last possible employment 

exposure was August 18, 1978, the effective date of appellant’s resignation. 

There is no evidence of record that appellant’s immediate superior received written notice 

or had actual knowledge of appellant’s injury PTSD within 30 days of August 18, 1978. 

Appellant claimed that he was aware of the employment-related nature of his condition as early 

as February 2004. OWCP determined that Dr. Boone’s July 7, 2004 evaluation commenced the 

three-year filing period under 5 U.S.C. § 8122(b). However, appellant did not file his claim until 

November 20, 2008, which was more than three years afterwards. As such, his claim was 

untimely. 

Appellant contended that his April 2004 EEO complaint represented timely notice of 

injury to his employer. As noted, an otherwise untimely claim will be considered timely if the 

immediate superior had actual knowledge of the injury or received written notice within 30 days 

of the date of injury.19 Appellant has not submitted evidence to establish that his immediate 

superior or another employing establishment official had actual knowledge or received written 

notice of his PTSD within 30 days of his last employment exposure. The April 2004 EEO 

complaint filed more than 25 years later does not satisfy the notice requirements under 5 U.S.C. 

§ 8112(a)(1), (2).20

Appellant also argued that the employing establishment should have informed OWCP of 

his injury. Additionally, he claimed that his employing establishment failed to advise him to file 

a FECA claim rather than an EEO complaint. The Board previously noted that appellant’s 

unfamiliarity with FECA’s filing requirements did not excuse his untimely filing.21 

Notwithstanding perceived failures on the part of the employing establishment, he is ultimately 

responsible for filing his FECA claim in a timely fashion. 

The Board finds that appellant has not demonstrated clear evidence of error. As such, 

there is no justification for further merit review. Accordingly, OWCP properly declined to 

reopen his case under 5 U.S.C. § 8128(a). 

CONCLUSION 

The Board finds that appellant’s April 8, 2013 request for reconsideration was untimely 

and he failed to demonstrate clear evidence of error. Therefore, appellant is not entitled to 

further merit review. 

 18 E.g., James A. Sheppard, 55 ECAB 515, 518 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Time, Chapter 2.801.6 (March 1993). 

19 5 U.S.C. § 8112(a)(1), (2). 

20 An EEO complaint is not a claim for benefits under FECA. See M.M., Docket No. 08-1756 (issued 

September 23, 2009). 

21 5 U.S.C. § 8122(d)(3) (“exceptional circumstances”); see Ralph L. Dill, 57 ECAB 248, 253-54 (2005) 

(ignorance of the law or one’s obligations under it does not constitute “exceptional circumstances” that would 

otherwise excuse an untimely filing). 
6

ORDER 

IT IS HEREBY ORDERED THAT the July 12, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 14, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board