United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.E., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Gaithersburg, MD, Employer 

__________________________________________ 

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Docket No. 14-1223 

Issued: November 7, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On May 2, 2014 appellant, through her attorney, filed a timely appeal of a March 14, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), finding that 

her request for reconsideration was untimely and failed to show clear evidence of error. Pursuant 

to the Federal Employees’ Compensation Act1

 (FECA), the Board has jurisdiction over the 

March 14, 2014 nonmerit decision. The Board lacks jurisdiction over the merits of the claim.2

 

ISSUE 

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

reconsideration was untimely and failed to show clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The last merit decision was an OWCP decision dated November 13, 2012, finalizing an overpayment of 

compensation. The record also contains an August 10, 2012 OWCP merit decision, denying modification of a 

May 17, 2012 OWCP decision terminating compensation. For final adverse OWCP decisions issued on or after 

November 19, 2008, a claimant has 180 days to file an appeal with the Board. 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY 

The case was previously before the Board on a prior appeal. Appellant had filed a claim 

on December 5, 1990 alleging an emotional condition resulting from harassment by her 

supervisor.3 OWCP initially accepted the claim for major depressive episode and on March 29, 

2011 stated that the claim was accepted for aggravation of major depressive disorder. By 

decision dated May 17, 2012, it terminated compensation effective May 18, 2012. OWCP found 

that appellant was receiving Veterans Administration (VA) benefits for the same employment 

injury and had failed to elect FECA benefits. By decision dated August 10, 2012, it reviewed the 

merits of the claim and denied modification. 

The Board reviewed a June 4, 2013 OWCP decision denying merit review of the 

August 10, 2012 decision. The Board found, in its February 10, 2014 decision, that OWCP had 

properly denied merit review of the claim as the evidence submitted from Attending Physician 

Dr. Celeste Good, did not provide any new and relevant evidence on the medical issue presented. 

The Board indicated that the April 18, 1994 VA rating decision had specifically referenced 

Dr. Good’s December 15, 1993 report, stating that appellant was disabled due to major 

depression. The history of the case provided by the Board is incorporated herein by reference. 

By letter to OWCP dated March 3, 2014, appellant, through her representative, again 

requested reconsideration. She submitted a January 29, 2014 brief stating that, if a claimant is 

receiving FECA and VA benefits, OWCP must determine whether the benefits are for the same 

injury. According to appellant, OWCP did not properly analyze the medical evidence and there 

was no specific report stating that the benefits were for the same injury. Appellant referred to a 

2005 “Harvard Mental Health Letter” and argued that, while dysthymia and major depression 

have symptoms in common, they are not identical.4

 She also cited provisions of OWCP’s 

procedure manual with respect to the prohibition of dual benefits from FECA and the VA. 

With respect to additional evidence, appellant submitted hospital treatment notes from 

January 19 and 20, 2014 indicating that she complained of suicidal thoughts. In a report dated 

January 19, 2014, Dr. Gregory Ledbetter, Board-certified in emergency medicine, diagnosed 

depression. 

By decision dated March 14, 2014, OWCP found that appellant’s application for 

reconsideration was untimely and failed to show clear evidence of error. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.5

 The 

 3

 Docket No. 13-1931 (issued February 10, 2014). 

4

 Appellant also discussed a finding of fault with respect to an overpayment of compensation. The November 13, 

2012 decision with respect to an overpayment found that she was not at fault in creating an overpayment. 

5

 5 U.S.C. § 8128(a). 
3

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”6

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.7

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.8

 It, through regulations, 

has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a) of 

FECA.9

 As one such limitation, 20 C.F.R. § 10.607 provides that an application for 

reconsideration must be received within one year of the date of OWCP’s decision for which 

review is sought.10 OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The 

evidence must be positive, precise and explicit and must manifest on its face that OWCP 

committed an error.11 

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting medical opinion or establish a clear procedural error, but 

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.12 Evidence that does 

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

establish clear evidence of error.13 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.14 A determination of whether the claimant has 

established clear evidence of error entails a limited review of how the evidence submitted with 

the reconsideration request bears on the evidence previously of record.15

ANALYSIS 

Appellant submitted a March 3, 2014 application for reconsideration, asserting that it was 

timely as it was filed within one year of the February 10, 2014 Board decision. The February 10, 

2014 Board decision, however, was not a review of the merits of the claim. The Board reviewed 

 6

 20 C.F.R. § 10.605 (2012). 

7 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

8

 Under section 8128 of FECA, “[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.” 

9 See supra note 1. 

10 20 C.F.R. § 10.607 (2012). 

11 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

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

13 Jimmy L. Day, 48 ECAB 652 (1997). 

14 Id. 

15 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 
4

a June 4, 2013 OWCP decision that denied merit review of the August 10, 2012 OWCP decision. 

The right to reconsideration within one year after a Board decision only accompanies a merit 

decision.16 The March 3, 2014 application is untimely with respect to the August 10, 2012 

OWCP merit decision, as well as the November 13, 2012 overpayment decision. 

As an untimely application for reconsideration, appellant must show clear evidence of 

error by OWCP. It is well established that under 5 U.S.C. § 8116 a claimant is prohibited from 

receiving both FECA and VA benefits if the benefits are for the same injury.17 Appellant 

reiterated her arguments that the VA benefits were not for the same injury as the accepted 

condition was aggravation of major depressive disorder. As the Board noted in the prior appeal, 

the VA rating decision had referred to major depression as a diagnosis from appellant’s attending 

physician, Dr. Good. It is appellant who must show clear evidence of error by OWCP and her 

general argument that OWCP did not properly analyze the medical evidence does not show clear 

evidence of error. As noted above, even if evidence could be construed to produce a contrary 

result, this is not clear evidence of error. The reference to a medical newsletter is of little 

probative value, as it is not from a physician under FECA discussing the specific facts of the case 

at hand.18 The medical evidence submitted on reconsideration does not address the relevant 

issue. The hospital reports and the January 19, 2014 report from Dr. Ledbetter do not discuss the 

issue presented. 

For the above reasons, the Board finds that appellant’s application for reconsideration 

was untimely filed and failed to show clear evidence of error by OWCP. The application for 

reconsideration was therefore properly denied without merit review of the claim. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s application for 

reconsideration was untimely and failed to show clear evidence of error. 

 16 See also E.C., Docket No. 13-1937 (issued February 6, 2014); Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011). 

17 R.M., Docket No. 14-428 (issued June 25, 2014). 

18 See C.M., Docket No. 11-284 (issued September 14, 2011). 
5

ORDER 

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

Compensation Programs dated March 14, 2014 is affirmed. 

Issued: November 7, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board