United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.E., Appellant 

and 

DEPARTMENT OF THE ARMY, 

INSTALLATION MANAGEMENT 

COMMAND, Fort Stewart, GA, Employer 

__________________________________________ 

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Docket No. 15-0131 

Issued: September 9, 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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 24, 2014 appellant filed a timely appeal from a May 2, 2014 nonmerit 

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

elapsed since April 23, 2013, the date of the most recent merit decision and the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim as her request was untimely filed and failed to demonstrate 

clear evidence of error. 

 1

 5 U.S.C. §§ 8101-8193. 

2 See 20 C.F.R. §§ 501.2(c) and 501.3. 
2

FACTUAL HISTORY 

On November 9, 2012 appellant, then a 60-year-old human resources assistant, filed an 

occupational disease claim (Form CA-2) alleging a work-related emotional condition in the form 

of depression, high blood pressure, anxiety disorder, panic attacks, sleep disorder, and posttraumatic stress disorder. Appellant asserted that, while working in the casualty office, each time 

the telephone would ring someone “was dead or dying.” She alleged that she was “on call 24/7” 

and that her mind was never at rest. Appellant was always on heightened alert for death cases. 

She stated that working with the medical board/transition center was chaotic and stressful.3

In a November 13, 2012 letter, OWCP requested that appellant submit additional factual 

and medical evidence in support of her claim. On November 13, 2012 it also requested that the 

employing establishment submit additional information about appellant’s work duties and other 

conditions of work. 

Appellant provided additional description of her work duties, alleging that she performed 

extensive work on processing cases where active-duty soldiers had died. Appellant claimed that 

she had to notify the next of kin of soldiers who were killed in action and that she often had to 

fingerprint soldiers who had died. She alleged that she was subjected to harassment and 

discrimination in the workplace and claimed that the employing establishment committed 

wrongdoing with respect to various administrative matters, including denying her reasonable 

accommodation for her medical condition. 

Appellant submitted statements in which coworkers described the work environment in 

her work unit at the employing establishment. She also submitted medical evidence from 

attending Board-certified psychiatrists as well as various administrative documents such as job 

descriptions and other personnel documents. 

In a November 9, 2012 statement, appellant’s supervisor described appellant’s work 

duties and took issue with a number of her statements characterizing her work duties. The 

supervisor stated that appellant’s primary duties involved stopping retirement payments for 

retired veterans who had died. She stated that appellant had limited involvement with the 

processing of claims for the families of active-duty soldiers who had died. The supervisor 

clarified that appellant had no involvement with the direct notification of next of kin of any 

soldier killed in action. She denied that appellant was subjected to harassment/discrimination or 

that she was not provided reasonable accommodation for her medical condition. 

By decision dated April 23, 2013, OWCP denied appellant’s emotional condition claim 

because she had failed to establish any compensable employment factors. It noted that, because 

she had not established any compensable employment factors, it was not necessary to consider 

the medical evidence of record. 

In a document received by OWCP on April 25, 2014, appellant requested reconsideration 

of her emotional condition claim. She argued that the documents she submitted in connection 

with the reconsideration request supported the employment factors she previously claimed. 

 3

 Appellant retired from the employing establishment on March 31, 2012. 
3

Appellant submitted an April 18, 2014 statement in which a funeral home operator, from the 

Dorchester Funeral Home, stated that she worked every phase of the funeral process, including 

coordination of funeral arrangements for active duty soldiers and retirees “to include 

fingerprinting of the deceased when needed.” The funeral home operator also indicated that 

appellant was a point of contact listed as being available on a “24/7” basis. Appellant also 

submitted various personnel documents, including performance appraisals, Forms SF-50, and a 

position description. She submitted an August 12, 2013 report of Dr. Manoj Dass, an attending 

Board-certified psychiatrist. 

In a May 2, 2014 decision, OWCP denied appellant’s request for further review of the 

merits of her claim because her request was untimely filed and failed to demonstrate clear 

evidence of error. It found that her reconsideration request was untimely because it was received 

on Friday, April 25, 2014, a date more than one year after its prior decision dated April 23, 2013. 

OWCP found that the evidence and argument submit by appellant did not show clear evidence of 

error in its April 23, 2013 decision. 

LEGAL PRECEDENT 

 To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.4 

The Board has found that the imposition of the one-year limitation does not constitute an abuse 

of the discretionary authority granted OWCP under section 8128(a) of FECA.5

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. When an application for review is untimely filed, OWCP must nevertheless 

undertake a limited review to determine whether the application establishes “clear evidence of 

error.”6 OWCP regulations and procedure provide that OWCP will reopen a claimant’s case for 

merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if 

the claimant’s application for review shows “clear evidence of error” on the part of OWCP.7

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

which was decided by OWCP.8

 The evidence must be positive, precise, and explicit and must 

 4

 20 C.F.R. § 10.607(a) (an application for reconsideration must be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought). 

5

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

7

 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 

(October 2011). OWCP procedure further provides, “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 a mistake. For 

example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing 

that the claimant had a dependent but the award was not paid at the augmented rate. 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 evidence of error.” Id. at Chapter 2.1602.5a. 

8 See A.B., Docket No. 15-531 (issued June 18, 2015). 
4

manifest on its face that OWCP committed an error.9

 Evidence which does not raise a 

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

clear evidence of error.10 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.11 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.12

 Workers’ compensation law does not apply to each and every injury or illness that is 

somehow related to an employee’s employment. There are situations where an injury or an 

illness has some connection with the employment but nevertheless does not come within the 

concept or coverage of workers’ compensation. Where the disability results from an employee’s 

emotional reaction to her regular or specially assigned duties or to a requirement imposed by the 

employment, the disability comes within the coverage of FECA.13 On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to 

hold a particular position.14

 Administrative and personnel matters, although generally related to the employee’s 

employment, are administrative functions of the employer rather than the regular or specially 

assigned work duties of the employee and are not covered under FECA.15 However, the Board 

has held that, where the evidence establishes error or abuse on the part of the employing 

establishment in what would otherwise be an administrative matter, coverage will be afforded.16 

In determining whether the employing establishment has erred or acted abusively, the Board will 

examine the factual evidence of record to determine whether the employing establishment acted 

reasonably.17 To the extent that disputes and incidents alleged as constituting harassment and 

discrimination by supervisors and coworkers are established as occurring and arising from 

appellant’s performance of her regular duties, these could constitute employment factors.18 

However, for harassment or discrimination to give rise to a compensable disability under FECA, 

 9

 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

10 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

11 See Leona N. Travis, supra note 9. 

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

13 Lillian Cutler, 28 ECAB 125 (1976). 

14 Gregorio E. Conde, 52 ECAB 410 (2001). 

15 Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 

ECAB 556 (1991). 

16 William H. Fortner, 49 ECAB 324 (1998). 

17 Ruth S. Johnson, 46 ECAB 237 (1994). 

18 David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991). 
5

there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of 

harassment or discrimination are not compensable under FECA.19

 Appellant has the burden of establishing by the weight of the reliable, probative, and 

substantial evidence that the condition for which she claims compensation was caused or 

adversely affected by employment factors.20 This burden includes the submission of a detailed 

description of the employment factors or conditions which appellant believes caused or adversely 

affected a condition for which compensation is claimed and a rationalized medical opinion 

relating the claimed condition to compensable employment factors.21

ANALYSIS 

In its May 2, 2014 decision, OWCP properly determined that appellant filed an untimely 

request for reconsideration, and therefore she must demonstrate clear evidence of error on the 

part of OWCP in issuing this decision.22

Moreover, appellant did not show clear evidence of error by OWCP in its April 23, 2013 

decision. The evidence submitted by appellant did not raise a substantial question concerning 

the correctness of OWCP’s decision. It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.23

Appellant submitted an April 18, 2014 statement from a funeral home operator. 

However, this statement lacks specific details about the actual work tasks appellant performed, 

or the frequency of when they were performed. Therefore, this statement does not, on its face, 

show that OWCP erred when it denied appellant’s emotional condition claim. The funeral home 

official stated that appellant was a point of contact listed as being available on a “24/7” basis, but 

this statement is also vague because it does not identify when appellant was listed as the point of 

contact or when she was called to duty outside of regular work hours. Appellant also submitted 

performance appraisals, Forms SF-50, and a position description. However, these documents do 

not support appellant’s claimed employment factors. Appellant submitted an August 12, 2013 

report of Dr. Dass, an attending Board-certified psychiatrist. This medical evidence is not 

 19 Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). 

20 Pamela R. Rice, 38 ECAB 838, 841 (1987). 

21 Effie O. Morris, 44 ECAB 470, 473-74 (1993). 

22 Appellant’s reconsideration request was received by OWCP on April 25, 2014. OWCP’s regulations at 20 

C.F.R. § 10.607(a) establish a one-year time limit for requesting reconsideration. The one-year period begins on the 

date of the original decision, and an application for reconsideration must be received by OWCP within one year of 

the date of OWCP’s decision for which review is sought for merit decisions issued on or after August 29, 2011. See

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). 

23 See supra note 11. 
6

relevant because the claim was not denied on a medical basis. Appellant’s claim was denied 

because she failed to establish any compensable employment factors.24

For these reasons, the evidence submitted by appellant does not raise a substantial 

question concerning the correctness of OWCP’s April 23, 2013 decision and OWCP properly 

determined that she did not show clear evidence of error in that decision.25

CONCLUSION 

 The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim because her request was untimely filed and failed to 

demonstrate clear evidence of error. 

ORDER 

 IT IS HEREBY ORDERED THAT the May 2, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: September 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 24 See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992) (finding that when a given claimant has not established 

any compensable employment factors, it is not necessary for OWCP to consider the medical evidence of record). 

25 On appeal appellant alleged that she was subjected to harassment and discrimination in the workplace and that 

she did not receive reasonable accommodation for her medical condition. However, she did not explain how the 

evidence and argument she submitted in April 2014 supported these allegations.