United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Louisville, KY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0523 

Issued: November 6, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 5, 2015 appellant filed a timely appeal from a September 26, 2014 nonmerit 

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

elapsed between February 26, 2010, 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 his claim as his 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 

This matter has previously been before the Board. On September 21, 2009 appellant, 

then a 32-year-old mail processing clerk, filed an occupational disease claim (Form CA-2) 

alleging an emotional condition due to various incidents and conditions at work. He claimed that 

management improperly failed to select him to fill several job vacancies, neglected to provide 

him proper relocation notice when his job was being moved to another state in August 2009, and 

wrongly failed to credit him for time spent during the relocation process. Appellant also alleged 

that management subjected him to harassment, discrimination, threats, and retaliation with regard 

to the job bidding and relocation processes.3

In support of his claim, appellant submitted numerous e-mails and letters regarding the 

bidding process for several job vacancies and the circumstances of his relocation in 

August 2009.4 He also submitted documents relating to Equal Employment Opportunity (EEO) 

claims he had filed on these issues. Appellant submitted medical evidence in support of his 

claim. 

In a February 26, 2010 decision, OWCP denied appellant’s emotional condition claim 

because he had failed to establish any compensable work factors. It found that he did not submit 

sufficient evidence to show that management committed error or abuse with respect to 

administrative matters or that management subjected him to harassment and discrimination. 

Appellant filed an October 15, 2012 request for reconsideration of OWCP’s February 26, 

2010 decision. He provided argument regarding why he felt that management had committed 

error or abuse with respect to administrative matters and subjected him to harassment and 

discrimination. In support of his reconsideration request, appellant submitted numerous 

documents which he felt established his claim for a work-related emotional claim. A number of 

the documents relate to EEO claims he filed, including claims in which he alleged that 

management wrongly denied his applications for job vacancies and mishandled the relocation of 

his job to another state in August 2009.5 Appellant also submitted numerous e-mails and letters 

which contained discussions of these matters. 

In a January 2, 2013 decision, OWCP denied appellant’s reconsideration request because 

it was untimely filed and failed to demonstrate clear evidence of error. Appellant’s 

reconsideration request was determined to have been filed on October 15, 2012, i.e., more than 

one year after OWCP’s February 26, 2010 merit decision denying his emotional condition claim. 

OWCP further found that he had not established clear evidence of error in the February 26, 2010 

decision. 

 3

 Appellant asserted that he was wrongly threatened with placement on leave without pay status or with 

termination in connection with the relocation matter. 

4

 Appellant expressed his belief that the job bidding and relocation matters had been mishandled. 

5

 The EEO documents included various grievance summaries, investigative affidavits, and lists of employees that 

appellant felt had wrongly been given preferential treatment in the job bidding process. 
3

In a May 13, 2013 decision,6

 the Board found that OWCP had properly determined, in its 

January 2, 2013 decision, that appellant had filed an untimely request for reconsideration of 

OWCP’s February 26, 2010 decision,7

 however, the Board further found that OWCP had not 

presented adequate facts and findings, in its January 2, 2013 decision, supporting its 

determination that his untimely reconsideration request failed to demonstrate clear evidence of 

error in the February 26, 2010 decision. The Board remanded the case to OWCP and directed it 

to issue a decision which contained adequate facts and findings regarding whether appellant had 

established such clear evidence of error. 

In a September 26, 2014 decision, OWCP denied appellant’s request for further review of 

the merits of his claim as his request was untimely filed and failed to demonstrate clear evidence 

of error. Appellant’s reconsideration request was determined to be untimely because it was filed 

on October 15, 2012, i.e., more than one year after OWCP’s February 26, 2010 merit decision 

denying his emotional condition claim. OWCP provided an extensive discussion of the 

argument and evidence he submitted in connection with his reconsideration request and 

explained how he had not shown clear evidence of error in the February 26, 2010 OWCP 

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.8

 

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.9

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

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

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

error.”10 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.11

 6

 Docket No. 13-527 (issued May 13, 2013). 

7

 The Board found that appellant filed his reconsideration request on October 15, 2012, i.e., more than one year 

after OWCP’s February 26, 2010 merit decision. 

8

 20 C.F.R. § 10.607(a). 

9

 5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

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

11 Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a 

(October 2011). OWCP procedures 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.” 
4

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

which was decided by OWCP.12 The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error.13 Evidence which does not raise a 

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

clear evidence of error.14 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.15 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.16

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 his or her regular or specially assigned duties or to a requirement imposed 

by the employment, the disability comes within the coverage of FECA.17 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 his or her frustration from not being permitted to work in a particular environment or 

to hold a particular position.18

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

employment, are administrative functions of the employing establishment rather than the regular 

or specially assigned work duties of the employee and are not covered under FECA.19 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.20 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.21 To the extent that disputes and incidents alleged as 

constituting harassment and discrimination by supervisors and coworkers are established as 

occurring and arising from a claimant’s performance of his or her regular duties, these could 

 12 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

13 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

15 See Leona N. Travis, supra note 13. 

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

17 Lillian Cutler, 28 ECAB 125 (1976). 

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

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

42 ECAB 556 (1991). 

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

21 Ruth S. Johnson, 46 ECAB 237 (1994). 
5

constitute employment factors.22 However, for harassment or discrimination to give rise to a 

compensable disability under FECA, there must be evidence that harassment or discrimination 

did in fact occur. Mere perceptions of harassment or discrimination are not compensable under 

FECA.23

ANALYSIS 

In its September 26, 2014 decision, OWCP properly determined that appellant filed an 

untimely request for reconsideration. Appellant’s reconsideration request was filed on 

October 15, 2012, more than one year after OWCP’s February 26, 2010 decision, and therefore 

he must demonstrate clear evidence of error on the part of OWCP in issuing this decision.24

Appellant has failed to establish clear evidence of error in the February 26, 2010 OWCP 

decision. 

In support of his untimely reconsideration request, appellant submitted argument as to 

why he felt that management had committed error or abuse with respect to administrative matters 

and subjected him to harassment and discrimination. He also submitted numerous documents 

which he felt established his claim for an emotional condition, including EEO claims he had filed 

in which he alleged management engaged in harassment and discrimination and committed 

wrongdoing in connection with administrative matters.25 The Board has reviewed the argument 

and evidence and finds them of limited relevance to the underlying claim. None of the 

documents submitted by appellant even supported his assertion that OWCP had wrongly denied 

to accept any compensable employment factors. Appellant submitted numerous documents 

concerning EEO claims, but none of these documents contain a final EEO decision regarding 

these matters or otherwise establish the existence of an employment factor. Some of these 

documents had been previously submitted and considered by OWCP, and they would not have 

probative value on the relevant merit issue of this case.26 

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

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

24 On appeal, appellant alleged that he actually filed a request for reconsideration of OWCP’s February 26, 2010 

decision at a time prior to October 15, 2012, such that his request was timely filed within a year of the February 26, 

2010 decision. However, the Board has already determined, in its May 13, 2013 decision, that he filed an untimely 

request for reconsideration. It is noted that the Board’s decisions and orders are final upon the expiration of 30 days 

from the date of their issuance and, in the absence of new review by OWCP, the subject matter is res judicata and not 

subject to further consideration by the Board. See 20 C.F.R. § 501.6(d); Clinton E. Anthony, Jr., 49 ECAB 476, 

479 (1998). 

25 Most of appellant’s claimed employment factors concerned the job relocation process in 2009 and his 

nonselection for job vacancies. 

26 On appeal, appellant argued that OWCP had not adequately reviewed all the relevant evidence he had 

submitted in support of his reconsideration. However, he did not identify the specific evidence he felt had not been 

reviewed or otherwise establish that OWCP had not performed an adequate review. Appellant also alleged that the 

evidence he submitted proved wrongdoing by the employing establishment, but he did not explain how specific 

evidence of record proved such wrongdoing. 
6

For these reasons, the evidence fails to raise a substantial question concerning the 

correctness of OWCP’s February 26, 2010 decision and OWCP properly denied the claim. 

CONCLUSION 

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

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

evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the September 26, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 6, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board