United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.R., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HOUSTON VETERANS ADMINISTRATION, 

Houston, TX, Employer 

__________________________________________ 

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Docket No. 15-0286 

Issued: August 18, 2015 

Appearances: Case Submitted on the Record

Stephen Hunt, Sr., Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 19, 2014 appellant, through counsel, filed a timely appeal of an 

October 20, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days have elapsed from July 12, 2010, the date of the most recent 

OWCP merit decision, pursuant to the Federal Employees’ Compensation Act1 (FECA), and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s 

claim. 

ISSUE 

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

reconsideration of the merits as her request was untimely filed and failed to demonstrate clear 

evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 20, 2009 appellant, then a 47-year-old dental assistant, filed an occupational 

disease claim for an emotional condition alleging that the employing establishment did not 

follow her restrictions when she returned to work after a work injury. She alleged that she was 

constantly in arguments, disputes, and confrontations over tasks and duties, and violations of her 

medical restrictions. Appellant indicated that she filed memos and complaints about the 

employing establishment ignoring her restrictions. She alleged that she suffered a new emotional 

injury and aggravation of her previous military-related injury and she suffered from depression, 

acute anxiety, and post-traumatic stress disorder (PTSD). The employing establishment noted 

that appellant wanted to file a claim for a new emotional condition and aggravation of a prior 

military-related injury. It controverted the claim and indicated that she was removed from 

federal service on March 16, 2007 and was approved for disability retirement on 

October 17, 2007. 

In a report dated June 24, 2009, Dr. Glenn Bricken, a clinical psychologist, noted seeing 

appellant to assess her emotional state secondary to a low back injury and an emotional injury 

sustained on August 17, 2005. His diagnoses included psychiatric factors associated with 

diseases, chronic pain syndrome, reactive depression, and unspecified anxiety state. Dr. Bricken 

opined that due to the severity of appellant’s work-related psychological concerns she was 

unable to return to work in any capacity due to her severe psychological condition caused by her 

physical injury and job-related stress. 

On November 23, 2009 OWCP accepted the claim for psychogenic pain. On 

December 9, 2009 it accepted a claim for psychogenic factors with conditions classified 

elsewhere, dysthymic disorder, unspecified anxiety state, other specified transient mental 

disorder, and mood disorder. 

On December 18, 2009 OWCP rescinded December 9, 2009 acceptance of appellant’s 

claim. It noted that the employing establishment was not given an opportunity to comment on 

appellant’s statements and that OWCP had not obtained appellant’s occupational history before 

accepting the claim. OWCP advised appellant that her claim was placed back into the 

development stage and that a final decision would be issued. In a telephone memorandum dated 

January 8, 2010, counsel indicated that he did not receive a copy of the rescission letter. OWCP 

indicated that it was resending it. The December 18, 2009 rescission letter was sent to his 

address of record and was not returned as undeliverable. 

After further developing the claim, OWCP denied appellant’s claim for an emotional 

condition on April 5, 2010. It found that she had not established a compensable factor of 

employment. 

On April 9, 2010 appellant requested a review of the written record. On May 12, 2010 

OWCP requested that the employing establishment provide comments on appellant’s request for 

an examination of the written record.2

 It received additional evidence which included statements 

 2

 The employing establishment did not submit comments in response to this. 
3

from two witnesses, who confirmed that they observed appellant work outside her restrictions by 

pushing a cart full of water pitchers and pushing patients in a wheelchair. 

In a July 12, 2010 decision, an OWCP hearing representative affirmed the April 5, 2010 

decision.3

Appellant submitted an April 6, 2012 report from Dr. Ronnie D. Shade, a Board-certified 

orthopedic surgeon, who stated that she first injured her back in 1988 while in the army and later 

reinjured it while working for the employing establishment. Dr. Shade noted findings and 

diagnosed chronic lumbosacral strain, lumbar radiculitis, chronic thoracic strain, and depression. 

On September 10, 2014 counsel requested reconsideration of OWCP’s December 18, 

2009 decision. He argued that it erroneously rescinded acceptance of the claim. Counsel argued 

that OWCP rescinded the claim without providing a clear explanation of its rationale for 

rescission, and referred to Deborah S. Stein, 56 ECAB 494 (2005), to support that OWCP did not 

meet its burden of proof to rescind the claim.4

 He was referred to the prior OWCP decisions 

dated December 18, 2009, April 5 and July 10, 2010, and argued that those decisions did not 

provide clear evidence that appellant’s allegations were not true, or that the information provided 

by the employing establishment was true. Counsel explained that OWCP initially accepted the 

claim for psychogenic pain on November 23, 2009 and on December 9, 2009 OWCP expanded 

the claim. Thereafter, OWCP “without any information, evidence or supporting evidence, 

statements or contacted facts” rescinded the claim “because they had not received any 

information from the [employing establishment].” Counsel argued that five months later on 

May 12, 2010, the employing establishment was allowed “another 20 days” to submit comments 

concerning the pending review. However, no comments were submitted. Counsel also argued 

that the employing establishment did not further controvert the claim. He suggested that OWCP 

engaged in a “conspiracy, set up and bias that FECA should not desire.” Counsel noted that 

appellant provided statements and events of emotional trauma that were directly related to her 

prior August 17, 2005 injury. He argued that she worked outside of her restrictions and this was 

supported by the two witnesses. Counsel also indicated that Dr. Bricken also attributed the 

injury to her injury of August 17, 2005 in his report dated June 24, 2009. 

Counsel further argued that OWCP’s July 12, 2010 decision was erroneous because it 

stated that “as of August 25, 2006 she developed depression, acute anxiety, and PTSD as well as 

an aggravation of a previous military service[-]related injury.” However, he argued that 

appellant had to file an “occupational disease claim for a “consequential” emotional condition 

secondary to her accepted August 17, 2005 injury. Counsel asserted that employment factors 

and work restrictions were issues since the injury of August 17, 2005.5

 He argued that the 

hearing representative “misconstrued the entire claim” and never really provided any clear 

 3

 On July 12, 2011 appellant filed an appeal from the July 12, 2010 OWCP decision. On May 9, 2012 the Board 

issued an order dismissing appeal as the appeal was untimely filed. Docket No. 11-1683 (issued May 9, 2012). 

4

 In Stein, the Board reversed a December 8, 2003 decision of OWCP rescinding acceptance of a claim, as it did 

not meet its burden of proof to establish that the November 14, 1999 incident did not occur as alleged. 

5

 The claim for the alleged 2005 injury is not presently before the Board. In his July 12, 2010 decision, the 

hearing representative indicated that this claim was denied by OWCP on October 19, 2007. 
4

evidence that the original acceptance was in error.” Additionally, counsel argued that the 

restrictions in place from her 2005 injury were repeatedly violated. He noted that the employing 

establishment was unable to force appellant to work outside of her restrictions, they could not 

find or provide any light duty that met the prescribed restrictions, and appellant was terminated. 

Counsel argued that appellant now had emotional and physical restrictions. He also referred to 

consequential conditions and argued that they arose out of her employment and submitted 

arguments about her restrictions. Counsel also suggested that appellant’s previous representative 

did not receive a letter as a suite number was not on the envelope.6

 He argued that it was 

returned back to OWCP with an “insufficient address,” but never followed up upon. Counsel 

reiterated that OWCP did not meet its burden to rescind acceptance of appellant’s claim. 

In an October 20, 2014 decision, OWCP denied appellant’s request for reconsideration as 

it was untimely filed and failed to present clear evidence of error. With regard to 

correspondence sent to appellant’s representatives, it indicated that a review of the case record 

revealed that no letter was returned as undeliverable. 

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.7 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be filed within one year of the date of OWCP’s 

decision for which review is sought.8

 Imposition of this one-year filing limitation does not 

constitute an abuse of discretion.9

 OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, it must nevertheless undertake a 

limited review to determine whether it establishes clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.10

To establish clear evidence of error, a claimant must submit evidence that is relevant to 

the issue that was decided by OWCP,11 is positive, precise, and explicit, and manifests on its face 

that OWCP committed an error.12 The evidence must not only be of sufficient probative value to 

create a conflict in medical opinion or establish a clear procedural error, but must also shift the 

 6

 It is unclear what letter the representative refers to. 

7 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

8

 20 C.F.R. § 10.607(a). See also D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340 

(issued June 22, 2009). 

9 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

10 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011) (“the term ‘clear evidence of error’ 

is intended to represent a difficult standard”). 

11 Dean D. Beets, 43 ECAB 1153 (1992). 

12 Leona N. Travis, 43 ECAB 227 (1991). 
5

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

correctness of OWCP’s decision for which review is sought. Evidence that does not raise a 

substantial question is insufficient to establish clear evidence of error. It is not enough merely to 

show that the evidence could be construed so as to produce a contrary conclusion. 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.13

ANALYSIS 

In its October 20, 2014 decision, OWCP properly determined that appellant failed to file 

a timely application for review. Appellant seeks review of its December 18, 2009 decision 

which rescinded the acceptance of her claim. OWCP rendered its last merit decision in this case 

on July 10, 2010, which affirmed a previous denial of the claim. As the September 10, 2014 

request for reconsideration was submitted more than one year after the most recent merit 

decision, it was untimely filed. 

The Board finds that appellant’s untimely request failed to demonstrate clear evidence of 

error. In its December 18, 2009 decision, OWCP rescinded acceptance of her claim for an 

emotional condition. Thereafter, on September 10, 2014 counsel requested reconsideration. The 

Board finds that the arguments submitted by him do not raise a substantial question as to the 

correctness of OWCP’s decision and they are insufficient to demonstrate clear evidence of error 

on the part of OWCP in rescinding acceptance of her claim on December 18, 2009. 

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

which was decided by OWCP.14 In his September 10, 2014 letter, counsel argued that OWCP 

erroneously rescinded the accepted claim and entitlement to benefits without providing a clear 

explanation of its rationale for rescission and referred to the precedent within the matter of 

Deborah S. Stein.15 However, his argument does not establish clear evidence of error. Unlike 

Stein, where OWCP improperly sought to place the burden of proof on appellant and did not 

otherwise show a sufficient basis for a rescission, it explained the basis of its rescission in the 

December 18, 2009 decision. OWCP indicated that it prematurely accepted the claim as the 

employing establishment was not given an opportunity to comment on appellant’s statements and 

also because OWCP had not obtained appellant’s occupational history before accepting the 

claim.16 This was particularly important where the employing establishment had initially 

controverted the claim. Thus, appellant’s argument that OWCP did not provide a clear 

explanation for the rescission is insufficient to establish clear evidence of error. 

 13 J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010). 

14 Howard Y. Miyashiro, 51 ECAB 253 (1999). 

15 56 ECAB 494 (2005). 

16 OWCP’s procedures direct it to request evidence needed to properly develop the claim. See Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4, 7 (June 2011). 
6

Counsel referred to the prior OWCP decisions dated April 5 and July 10, 2010, and 

argued that neither decision provided clear evidence that the allegations alleged by appellant 

were untrue, or that the information provided by the employing establishment was true. He also 

argued that the employing establishment was allowed another opportunity to submit written 

comments regarding the review of the written record, but that it submitted no comments and did 

not further controvert the claim. Counsel argued that this supported there was no rationale or 

supporting facts to rescind the accepted claim. These contentions are insufficient to establish 

clear evidence of error. The April 5 and July 20, 2010 decisions pertained to whether appellant 

had established an emotional condition claim. OWCP did not purport to adjudicate the prior 

rescission in the April 5 and July 20, 2010 decisions. Counsel also has not submitted evidence to 

support allegations of improper claim development. These assertions do not show clear evidence 

of error. 

Furthermore, counsel made contentions regarding appellant’s prior claim, including her 

work restrictions, and appellant’s dissatisfaction with OWCP’s development of the prior claim. 

These assertions about a prior claim, which is not before the Board, are insufficient to establish 

clear evidence of error in the present matter. These contentions about a prior claim do not raise a 

substantial question as to the correctness of OWCP’s decision.17

Counsel also argued that appellant’s prior representative did not receive a letter from 

OWCP, as a suite number was not on the address and that the letter was returned for an 

insufficient address. The Board notes that it is unclear as to what correspondence the 

representative refers. The Board notes that OWCP’s December 18, 2009 rescission decision was 

sent to appellant and counsel to their respective addresses of record. In the absence of evidence 

to the contrary, a letter properly addressed and mailed in the regular course of business is 

presumed to have arrived at the mailing address in due course. This is known as the mailbox 

rule.18 Although counsel contacted OWCP via telephone on January 8, 2010 and indicated that 

he did not receive a copy of the rescission decision, as noted, the decision was sent to the 

counsel’s address of record. OWCP also indicated that it resent counsel another copy of the 

decision. The Board also notes that the record contains no indication that the December 18, 2009 

rescission decision was returned as nondeliverable. Consequently, under the mailbox rule, it is 

presumed that appellant and counsel both received the decision. Appellant has not established 

clear evidence of error. 

Following the July 12, 2010 decision, appellant also submitted an April 6, 2012 report 

from Dr. Shade. However, this report does not purport to offer a basis on which the 

December 18, 2009 rescission decision was clearly in error.19

The evidence and argument submitted by appellant is insufficient to raise a substantial 

question as to the correctness of the last merit decision. Consequently, appellant has not met her 

 17 If appellant disagrees with the manner in which another claim was adjudicated, she should pursue appeal rights 

provided with the other claim. 

18 See e.g. Kenneth E. Harris, 54 ECAB 502 (2003). 

19 See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the 

claim was denied is insufficient to demonstrate clear evidence of error). 
7

burden to establish clear evidence of error on the part of OWCP such that it erred in denying 

merit review. 

On appeal, counsel essentially repeated his arguments presented on reconsideration. He 

also argued that appellant was not given sufficient notice to respond to the rescission. However, 

appeal rights properly accompanied OWCP’s December 18, 2009 decision. The Board finds that 

this assertion does not demonstrate clear evidence of error on the part of OWCP. 

CONCLUSION 

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

reconsideration of the merits as her request was untimely filed and failed to show clear evidence 

of error. 

ORDER 

IT IS HEREBY ORDERED THAT the October 20, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 18, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board