United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, O’HARE 

INTERNATIONAL AIRPORT, Chicago, IL, 

Employer 

__________________________________________ 

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Docket No. 15-531 

Issued: June 18, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 20, 2015 appellant filed a timely appeal from a July 29, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 

days has elapsed between the most recent OWCP merit decision, dated May 7, 2013 and the 

filing of this appeal on January 20, 2015, the Board lacks jurisdiction to review the merits of 

appellant’s 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 not timely filed and failed to present clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 4, 2003 appellant, then a 54-year-old transportation security screener, 

injured his right shoulder when a police officer pushed his arm. OWCP initially accepted his 

claim for right shoulder and upper arm sprain. Appellant did not stop work. 

Appellant was treated by Dr. Tais Crawford, a Board-certified family practitioner, from 

November 17, 2003 to February 16, 2004, for a right arm injury. He reported injuring his right 

arm while checking the identification of an officer. Dr. Crawford diagnosed right shoulder strain 

and recommended physical therapy and light-duty work. A magnetic resonance imaging (MRI) 

scan of the right shoulder dated February 18, 2014 revealed clinical findings of impingement 

with no evidence of a rotator cuff tear. 

Appellant was also treated by Dr. Robert C. Evans, a psychologist, from January 20 to 

March 30, 2004, for clinical depression. Dr. Evans noted that appellant displayed moderate 

depressive symptoms which appeared to be job related. Appellant reported sustaining a shoulder 

injury that interfered with his ability to pick up bags which was part of his job description. 

Dr. Evans noted appellant’s recurring episodes of stress which were associated with his fear of 

being terminated. 

On March 9, 2005 OWCP expanded appellant’s claim to include neurotic depression. 

Appellant continued to be treated by Dr. Evans from August 6, 2008 to June 10, 2009, 

who noted that appellant had clinical counseling for depression after a physical conflict with a 

police officer on November 4, 2003 where he was injured. On June 10, 2009 Dr. Evans noted 

treating appellant since 2003 for neurotic depression which was associated with a work-related 

injury to his right shoulder and upper arm. He noted that appellant’s depression was recurring 

with symptoms of anxiety. 

Thereafter, in the course of developing the claim, OWCP referred appellant to several 

second opinion physicians. 

On May 10, 2010 OWCP issued a notice of proposed termination of medical and 

compensation benefits. It found that the medical evidence established that the sprain of the 

shoulder and upper arm and aggravation of neurotic depression had ceased and that he no longer 

had any disability or residuals due to the accepted work-related conditions. 

 On June 9, 2010 appellant disagreed with the notice of proposed termination and asserted 

that he has not adequately recovered from the accepted neurotic depression and continued to 

receive counseling for depression. He noted that although he returned to work he had not fully 

recovered from his depressive condition. 

 By decision dated June 17, 2010, OWCP terminated all of appellant’s medical and 

compensation benefits effective June 16, 2010, finding that the weight of the medical evidence 

established that he had no continuing disability resulting from his accepted employment 

conditions. On December 10, 2010 appellant requested reconsideration. In a February 10, 2011 

decision, OWCP denied modification its June 17, 2010 decision. 
3

 By appeal form dated January 4, 2012, received by OWCP on January 9, 2012, appellant 

again requested reconsideration. In a letter dated January 3, 2012, he indicated that he had a 

preexisting medical condition that was worsened by his work injury of November 4, 2003. 

Appellant referenced a letter from Dr. Joyce Miller, a psychiatrist dated May 5, 2003. He 

submitted a September 29, 2010 report from Dr. Deborah Spitz, a Board-certified psychiatrist, 

who treated him from March 18 to April 29, 2009. Dr. Spitz noted that appellant had a history 

for dysthymic disorder and diagnosed major depressive disorder which contributed to two 

months of missed work. He noted that people with dysthymia were susceptible to major 

depressive episodes. 

 In a decision dated May 7, 2013, OWCP denied modification of the prior decision. 

 On May 9, 2014 appellant requested reconsideration. In his May 6, 2014 letter, he 

asserted that his preexisting condition of mild depression worsened into neurotic dysthymia 

depression as a result of his work injury. Appellant contended that, under Illinois law, if a 

worker had a preexisting condition that was worsened as a result of a job injury, the preexisting 

condition was also compensable. He requested compensation for his preexisting depression. 

Appellant referenced an e-mail from Dr. Spitz who noted dysthymia was a long lasting mild 

depression. Appellant believed his depression worsened from mild depression into long lasting 

depression. He noted that prior to the November 4, 2003 work injury his mood and work 

attendance were better and after the work injury his depression worsened. Appellant submitted a 

May 5, 2003 statement from Dr. Miller who noted that she saw appellant for mild depression. 

Also submitted was a May 1, 2014 e-mail from Dr. Spitz who noted dysthymia was a long 

lasting mild depression and provided two research links for additional information. 

By decision dated July 29, 2014, OWCP denied appellant’s request for reconsideration as 

it was untimely and did not establish clear evidence of error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”2

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

 2 Id. at § 8128(a). 
4

one year of the date of OWCP’s decision for which review is sought.3

 However, OWCP will 

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

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. To establish clear evidence of error, a claimant must submit evidence 

relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and 

explicit and must be manifest on its face that OWCP committed an error.4

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.5 Evidence that does 

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

establish clear evidence of error.6

 It is not enough merely to establish that the evidence could be 

construed so as to produce a contrary conclusion.7 This entails a limited review by OWCP of the 

evidence previously of record and whether the new evidence demonstrates clear error on the part 

of OWCP.8

 The Board makes an independent determination as to 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 

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.10 As appellant’s request for 

reconsideration was not received by OWCP until May 9, 2014, more than one year after issuance 

of the May 7, 2013 merit decision, it was untimely. Consequently, he must demonstrate clear 

evidence of error by OWCP in its May 7, 2013 decision. 

The Board finds that appellant has not established clear evidence of error on the part of 

OWCP. In his May 6, 2014 reconsideration request, appellant disagreed with OWCP’s decision 

terminating his compensation and medical benefits for his accepted conditions. He asserted that 

his preexisting condition of mild depression worsened into neurotic dysthymia depression as a 

result of his work injury. Appellant referenced an Illinois law which provided that a preexisting 

 3

 20 C.F.R. § 10.607(a). 

4 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

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

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

7 Id.

8 Id.

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 

10 Supra note 3. 
5

condition that worsened as a result of a job injury was also compensable.11 While appellant 

explained his disagreement with OWCP’s decision terminating his compensation benefits, this 

statement does raise a substantial question as to the correctness of OWCP’s decision. 

The Board notes that the issue is medical in nature and that, on reconsideration, appellant 

submitted additional medical evidence. Appellant submitted a May 5, 2003 statement from 

Dr. Miller, who saw appellant for mild depression. Also submitted was a May 1, 2014 e-mail 

from Dr. Spitz who diagnosed dysthymia and defined it as a long lasting mild depression. 

However, this evidence does not raise a substantial question as to the correctness of OWCP’s 

decision. The Board notes that clear evidence of error is intended to represent a difficult 

standard. The submission of 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.12 

On appeal, appellant reiterated his assertions before OWCP that his preexisting condition 

of mild depression worsened into neurotic dysthymia as a result of his November 4, 2003 injury. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. 

 11 An employee’s rights or remedies under other statutory authority does not establish entitlement to benefits 

under FECA. The laws of the state of Illinois are not determinative of appellant’s entitlement to benefits under 

FECA. See Beverly R. Jones, 55 ECAB 411 (2004). 

12 D.G., 59 ECAB 455 (2008). 
6

ORDER 

IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 18, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board