United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Riverdale, GA, Employer 

__________________________________________ 

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Docket No. 15-1032 

Issued: September 1, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 17, 2015 appellant filed a timely appeal from a September 19, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs1

 (OWCP). Because more than 180 

days elapsed between the last relevant OWCP merit decision dated September 29, 2009 to the 

filing of this appeal, the Board lacks jurisdiction to review the merits of this case.2

 Pursuant to 

the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to review this nonmerit decision.4 

 1

 On May 12, 2015 appellant appealed OWCP’s March 24, 2015 nonmerit decision. Under the principles 

discussed in Douglas E. Billings, 41 ECAB 880 (1990), OWCP’s March 24, 2015 nonmerit decision, issued while 

the Board had jurisdiction to review the same subject matter, is null, and void. 

2

 An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the 

decision. 20 C.F.R. § 501.3(e). 

3

 5 U.S.C. § 8101 et seq. 

4

 Appellant submitted evidence to OWCP after September 19, 2014. The Board’s review of a case is limited to 

evidence in the case record that was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c). 
2

ISSUE 

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

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

FACTUAL HISTORY 

On April 30, 2008 appellant, then a 53-year-old customer service supervisor, filed a 

traumatic injury claim alleging that her emotional condition was caused by retaliation from her 

manager, R.B., on April 28, 2008 which resulted in a hostile work environment. She stopped 

work on April 28, 2008 and returned on May 5, 2008. The employing establishment 

controverted the claim. Appropriate development followed. 

By decision dated June 25, 2008, OWCP denied the claim because appellant had not 

established a compensable work factor. Appellant disagreed with this decision and requested an 

oral hearing. By decision dated October 2, 2008, an OWCP hearing representative vacated the 

June 25, 2008 OWCP decision and remanded the case for further development. The hearing 

representative noted that while appellant had filed a traumatic injury claim, her statement 

indicated that her condition had occurred over the course of many weeks and years which 

indicated an occupational disease claim. OWCP was directed to request comments from the 

employing establishment regarding appellant’s allegations and to make a finding on whether the 

evidence supported any of her allegations, not just these concerning the April 28, 2008 incident. 

Following further development and the submission of additional evidence, by decision 

dated March 2, 2009, OWCP denied the case and found that appellant had not established 

sufficient evidence to support that her emotional condition was caused by compensable work 

factors. 

Appellant submitted two decisions from the Merit Systems Protection Board (MSPB) 

dated March 6 and June 23, 2009 relating to her demotion from a supervisor to a part-time 

flexible clerk. The demotion was based on time and attendance, her failure to follow 

instructions, and unacceptable performance.5

 

By decision dated September 29, 2009, an OWCP hearing representative affirmed the 

March 2, 2009 decision. 

On September 12, 2014 OWCP received appellant’s July 31, 2014 request for 

reconsideration. Appellant asserted that, when OWCP issued its decision, her Equal 

 5

 The March 6, 2009 MSPB decision found that the employing establishment’s penalty selection was not 

reasonable and appropriate and that a suspension for 30 days was the maximum reasonable penalty to be imposed. 

The MSPB mitigated the employing establishment’s action to a 30-day suspension and ordered the employing 

establishment to restore appellant to her former position effective October 25, 2008 and pay back pay with interest. 

The June 23, 2009 MSPB decision found that the employing establishment only substantiated one of the two charges 

related to her unsatisfactory performance, which was the basis for her demotion. This decision further found that the 

initial administrative law judge’s penalty determination could not be sustained and appellant’s demotion should not 

have been mitigated to a 30-day suspension as the employing establishment had provided reasonable explanation for 

its penalty determination. Therefore, appellant’s demotion was sustained. 
3

Employment Opportunity (EEO) complaint had not been decided and that on May 8, 2014 she 

received an EEO complaint decision regarding the adverse actions of the employing 

establishment’s management. Submitted, was a May 8, 2014 letter from the employing 

establishment notifying appellant that a check in the amount of $60,000.00 for compensatory 

damages was a settlement award in her EEO complaint case. 

By decision dated September 19, 2014, OWCP denied appellant’s reconsideration request 

as it was untimely filed and did not present 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. It 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

 

Its regulations state that OWCP 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.7

 In this 

regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the 

prior evidence of record.8 

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

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

manifest on its face that OWCP committed an error. Evidence that 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 shift the weight 

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

OWCP’s decision.9 

OWCP 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, 

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

 6

 20 C.F.R. § 10.607(a) (2011). 

7 Id. at § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000). 

8 See Alberta Dukes, 56 ECAB 247 (2005). 

9 Robert G. Burns, 57 ECAB 657 (2006). 
4

evidence of error.10 The Board makes an independent determination of whether a claimant has 

submitted, clear evidence of error on the part of OWCP.11 

ANALYSIS 

The Board finds that OWCP properly denied appellant’s request for a merit review of her 

claim. The most recent OWCP merit decision in this case was issued on September 29, 2009. 

Appellant’s request for reconsideration was received on September 12, 2014, more than one year 

after the September 29, 2009 merit decision. Therefore, it was not timely filed. Consequently, 

appellant must demonstrate clear evidence of error by OWCP in denying her request for a merit 

review of her claim. 

Appellant’s emotional condition claim was denied on the grounds that she had not 

established a compensable employment factor. She requested reconsideration alleging that she 

received an EEO decision in her favor and that she would receive a $60,000.00 settlement award 

as compensation. However, a copy of the EEO complaint decision was not submitted as 

evidence. The Board can make no finding on the weight of evidence which is not found in the 

record. Absent such evidence, appellant’s mere statement is insufficient to support a finding of 

clear evidence of error.12 Consequently, OWCP properly found that the untimely reconsideration 

request did not establish clear evidence of error. 

On appeal, appellant stated that she received a settlement from her EEO complaint. Her 

EEO complaint case was filed in 2008 and settled in 2014. Appellant stated that on 

September 24, 2014 OWCP requested a copy of her EEO complaint decision, which she mailed 

on October 31, 2014. On March 13, 2015 she called OWCP to see why she had not received a 

response to the documentation she sent, but her case manager was not available. Appellant 

indicated her frustration with OWCP’s handling of her case and asserted that she was not at fault 

that she had to wait six years to send in new information. 

Appellant has requested that the Board consider all of her information. The Board notes 

that she discusses information which was received into the record after OWCP issued its 

September 19, 2014 decision. The Board lacks jurisdiction to review evidence submitted after 

OWCP issued its September 19, 2014 decision.13 Appellant’s request for reconsideration was 

untimely filed and did not present clear evidence of error. 

CONCLUSION 

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

untimely filed and lacking clear evidence of error. 

 10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011); 

James R. Mirra, 56 ECAB 738 (2005). 

11 Nancy Marcano, 50 ECAB 110 (1998). 

12 See supra note 7. 

13 20 C.F.R. § 501.2(c). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 19, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 1, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board