United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.W., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, CENTER FOR MEDICARE & 

MEDICAID SERVICES, Baltimore, MD, 

Employer 

__________________________________________ 

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Docket No. 14-1242 

Issued: March 19, 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 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On May 5, 2014 appellant filed a timely appeal from an April 1, 2014 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 Since more than 180 days elapsed 

from the last merit decision of September 17, 2009 and the filing of this appeal and pursuant to 

the Federal Employees’ Compensation Act2

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

Board lacks jurisdiction over the merits of this case.3 

 1

 Included with appellant’s appeal was a timely request for oral argument. On January 5, 2015 the Board issued 

an Order Denying Request for Oral Argument in this case. Docket No. 14-1242 (issued January 5, 2015). 

2

 5 U.S.C. §§ 8101-8193. 

3

 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). 
2

ISSUE 

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

review of the merits as his request for reconsideration was not timely filed and failed to establish 

clear evidence of error. 

FACTUAL HISTORY 

On June 5, 2007 appellant, then a 42-year-old health insurance specialist, filed both 

traumatic injury and occupational disease claims. On the traumatic injury claim form, he 

indicated that the date of injury was 1994 and, on the occupational disease claim form, he alleged 

that he developed a stress-related condition in 1994 and first realized that his condition was 

caused or aggravated by his employment in 1994. Appellant attributed his condition to 

harassment and discrimination by the employing establishment, a hostile work environment, and 

reassignment to a position in which he had limited experience. He was terminated from the 

employing establishment effective May 6, 1997. In a June 12, 2007 statement, the employing 

establishment challenged the claim on the grounds that appellant did not file a timely notice of 

injury within three years of the claimed injury. It noted that none of his former supervisors were 

available to confirm or refute the claim. 

By letter dated June 15, 2007, OWCP requested that appellant explain the delay to file 

the claim, address the specific work factors being claimed and provide any documentary 

evidence regarding any complaints, explain the development of his condition, and provide all 

medical records, including a detailed medical report addressing causal relationship of the alleged 

work factors, and his condition. On June 5, 2007 appellant filed a Form CA-7, claiming 

wage-loss benefits. On July 30, 2007 he also submitted a nine-page statement along with various 

records, which included notices of disciplinary action, an April 9, 1998 notice of approval for 

disability retirement, an undated affidavit from Kermit Lee, and personnel records. 

By decision dated August 31, 2007, OWCP denied the claim finding insufficient 

evidence to establish that appellant filed a timely notice of injury. 

On October 1, 2007 appellant requested an oral hearing before an OWCP hearing 

representative. In a December 10, 2007 letter, he requested that subpoenas be sent for testimony 

and documents. By letter dated July 8, 2008, the request was denied. 

A hearing was held on July 29, 2008. Appellant argued that his disabling mental and 

physical state and the subpoena denial put him at a disadvantage to present evidence and/or 

arguments regarding his appeal. He testified that he continued to be subjected to employing 

establishment retaliation. Appellant stated that he initially requested assistance about his rights 

and mental disability in 1998 and argued the employing establishment was aware of his mental 

condition and disability in 1998. He stated that he began experiencing problems in the 

workplace during 1994. Appellant’s personnel file was updated for a handicap code in an 

April 1994 SF-50, which he argued put the employing establishment on notice of his disability. 

He also sought assistance through the Employee Assistance Program, which also demonstrated 

his disability to the employing establishment. Appellant elaborated upon the specific work 

factors claimed, which started in 1994. He stated that, although he was subjected to harassment, 

and a retaliatory and threatening work environment, he continued performing his job duties and 

had notified the employing establishment of an injury, explaining that the actions of the 
3

employing establishment and the employees had contributed to his condition at that time. 

Appellant explained that, during 1996, his condition began to manifest itself as a result of 

ongoing events in the workplace and provided details of those events. 

Appellant testified that, during September 1996, he did not advise the employing 

establishment of an injury as he did not consider that he was injured at that time. He stated, 

however, that they knew of the work factors and hostility in the work environment. Appellant 

referenced various e-mails and discussions with supervisors with regard to work-related events 

and argued that this put the employing establishment on notice that the situations could have 

caused or resulted in his condition. He argued that his delay to file the claim should be excused 

under the equitable tolling rule as the employing establishment was inappropriate and showed 

misconduct in its actions by not assisting him or providing him with information and allowed the 

filing deadline to pass. Appellant indicated that he was not allowed to return to the employing 

establishment’s premises after his March 4, 1996 removal and subsequent termination. When he 

filed his claim for Office of Personnel Management (OPM) benefits in 1997 or 1998, he had 

made the employing establishment aware that he wanted to file an injury claim at that time and 

requested OPM information. Appellant submitted evidence in support of his arguments. 

By decision dated December 1, 2008, OWCP’s hearing representative affirmed the 

August 31, 2007 decision. She found that, at the time appellant was terminated in May 1997, it 

was evident from his testimony, the record evidence and argument presented, that he was aware, 

or by exercise of reasonable diligence should have been aware, of a causal relationship between 

his employment and the claimed emotional condition to some degree; thus OWCP properly 

determined that he did not file within three years of his last exposure to the alleged work factors, 

May 6, 1997. The hearing representative further found that there was no evidence to establish 

that the immediate supervisor had knowledge of an on-the-job injury or that written notification 

was provided to advise of such. Further, none of the exceptions which would toll the relevant 

time limitation provision were applicable. 

On August 7, 2009 OWCP received a seven-page request for reconsideration from 

appellant. In his statement, appellant alleged that the date of injury was March 3, 1997 and that 

he reported the injury various individuals and union representatives. He noted that 1994 was the 

date he filed his racial harassment and discrimination complaint. Appellant further argued that 

he reported his injury to a Mr. Jones and a Mr. Moore on March 4, 1997 and told them he would 

like to make a claim. He also stated that he had requested to file a claim to several individuals, 

whom he listed, both before and after his 1997 termination. Appellant also argued that OWCP 

erred in denying an excusable neglect waiver of the three-year time frame and listed several 

federal laws and court proceedings in support of his contention. He also argued that the denial of 

the subpoena for witnesses and production of discovery documents was error. 

The new evidence submitted included: court proceedings from 2007 and 2008; Maryland 

Office of Administrative Hearings certification form completed April 9, 2008 with a statement 

from appellant attached; Merit Systems Protection Board (MSPB) decision dated August 6, 

2008; a social security decision dated July 28, 2008; the Federal Register; and several Supreme 

Court rulings. 

By decision dated September 17, 2009, OWCP reviewed the merits of the claims but 

denied modification of the prior decision. 
4

On February 9, 2010 OWCP received appellant’s request for reconsideration, which 

included 109 pages of arguments and documents. Appellant argued that his Federal Employees’ 

Retirement System disability retirement application of December 10, 1997 showed that he 

suffered from paranoia due to harassment and discrimination. He argued that a Mr. Jones and a 

Mr. Moore and a Dr. McPhillips were notified of his injury and failed to help him complete the 

claim form. Appellant argued that he was banned from the employing establishment’s buildings 

and denied the right to file for benefits, including workers’ compensation. He argued that he was 

intentionally given incorrect appeal rights to the MSPB and Equal Employment Opportunity 

Commission by the employing establishment. Appellant also argued that in 1997 he was 

diagnosed with paranoid delusional disorder and depression and his decision-making ability was 

seriously limited. 

By nonmerit decision dated February 24, 2010, OWCP denied reconsideration of the 

prior decision, finding that the arguments were either previously considered and addressed or not 

relevant to the issue of whether the claim was timely filed. 

On April 2, 2010 OWCP received an 18-page reconsideration request from appellant, in 

which he contended that his claim was timely filed. Evidence submitted included duplicate 

copies of information previously of record. 

By nonmerit decision dated July 1, 2010, OWCP denied reconsideration of the prior 

decision, finding that the reconsideration request neither raised substantive legal questions nor 

included new and relevant evidence or contentions not previously considered. 

On July 19, 2010 OWCP received a July 16, 2010 letter from appellant requesting 

reconsideration. Arguments and evidence previously considered were submitted. By nonmerit 

decision dated September 13, 2010, OWCP again denied reconsideration of the prior decision, 

finding that the reconsideration request neither raised substantive legal questions nor included 

new and relevant evidence or contentions not previously considered. 

On May 9, 2012 OWCP received appellant’s letter requesting reconsideration. Appellant 

contended that his supervisor had timely knowledge of his condition; that his delusional disorder 

prevented him from filing a timely claim; and that he was discriminated against by officials at 

the employing establishment. 

By nonmerit decision dated July 26, 2012, OWCP denied reconsideration of the prior 

decision, finding that the reconsideration request neither raised substantive legal questions nor 

included new and relevant evidence or contentions not previously considered. 

On August 15, 2012 OWCP received appellant’s August 8, 2012 reconsideration request. 

Appellant argued that he timely filed the claim. He stated that the date of injury was March 4, 

1997, not January 1, 1994, and his immediate supervisors were reasonably put on notice of an 

on-the-job injury. Appellant also argued that he was diagnosed with paranoia delusional disorder 

from 1997 to 2008 and was incompetent. Evidence previously of record was resubmitted. 

By nonmerit decision dated August 31, 2012, OWCP denied reconsideration of the prior 

decision, finding that the reconsideration request neither raised substantive legal questions nor 

included new and relevant evidence or contentions not previously considered. 
5

On June 20, 2013 OWCP received appellant’s June 20, 2013 reconsideration request. 

Appellant continued to argue that the injury occurred in 1997 and that he qualified for tolling the 

time for filing a claim provided by 5 U.S.C. § 8122 because of his psychiatric incompetence and 

no representation. Evidence submitted included copies of 1997 to 1998 paperwork regarding 

applying for benefits from OPM, MSPB paperwork from 2008, photocopies of pages from Title 

5, copies of paperwork from 1997 regarding his request for documentation, copies of previously 

received letters from him to his employing establishment, and medical records. 

By decision dated June 27, 2013, OWCP denied appellant’s request for reconsideration as 

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

On February 26, 2014 OWCP received appellant’s February 26, 2014 letter requesting 

reconsideration. Appellant argued that it was inconsistent that the Secretary of the U.S. 

Department of Labor approved his disability claim via The UnumProvident Settlement while 

OWCP continued to deny his workers’ compensation claim. Two pages of frequently asked 

questions about The UnumProvident Settlement were provided. 

By decision dated April 1, 2014, OWCP denied appellant’s request for reconsideration as 

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

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 on the grounds that the 

application was not timely filed. When an application for review is not timely filed, it must 

nevertheless undertake a limited review to determine whether the application establishes clear 

evidence of error.6

 OWCP regulations and procedures provide that it 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). 

5

 5 U.S.C. § 2128(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 Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d) 

(October 2011). OWCP procedures further provide 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 evidence of error. Id. at Chapter 2.1602.3(c). 

8 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 
6

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 To show clear 

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

a conflict in medical opinion or establish a clear procedural error, but must be of sufficient 

probative value to prima facie shift the weight of the evidence in favor of the claimant and raise 

a substantial question as to the correctness of OWCP’s decision.13 

ANALYSIS 

In the last merit review of appellant’s case on September 17, 2009, he testified to 

knowledge of his condition and its possible work relatedness at least by 1997, at the July 2008 

hearing. As he did not file his claim until 2007, he was clearly outside the three-year limitation 

period of 5 U.S.C. § 8122(b). Further, there was no evidence that appellant’s immediate 

supervisor had knowledge of any injury within 30 days and that there were no exceptional 

circumstances which would excuse his failure to comply with the applicable time limitation 

provision. 

Thus, OWCP properly determined that appellant failed to file a timely application for 

review. Its procedures provide that the one-year time limitation period for requesting 

reconsideration begins on the date of the original OWCP decision.14 As appellant’s February 26, 

2014 request for reconsideration was received by OWCP on February 26, 2014, more than one 

year after the last merit decision of September 17, 2009, it was untimely. Consequently, he must 

demonstrate clear evidence of error by OWCP in denying his claim for compensation.15

Appellant argued that the denial of his claim was inconsistent as the Secretary of the 

U.S. Department of Labor approved his disability claim via The UnumProvident Settlement 

while OWCP continued to deny his workers’ compensation claim. In support of his contention, 

two pages of frequently asked questions about The UnumProvident Settlement were provided. 

The Board initially notes that there is no evidence that appellant’s disability claim was approved 

under The UnumProvident Settlement. The evidence submitted, two pages of frequently asked 

questions about The UnumProvident Settlement, is not evidence that appellant’s claim had been 

approved and is informational in nature. Furthermore, even if appellant’s claim was approved 

 9 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

11 See Leona D. Travis, supra note 9. 

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

13 Leon D. Faidley, Jr., supra note 5. 

14 20 C.F.R. § 10.607(a). 

15 See Robert F. Stone, 57 ECAB 292 (2005); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 

149 (2005). 
7

under The UnumProvident Settlement, this does not establish that he filed a timely claim for 

FECA compensation, or that the employing establishment had timely notice of his injury. This 

evidence and his argument is not relevant to the issue of whether he submitted his claim in a 

timely manner and does not raise a substantial question as to the correctness of the last merit 

decision. Therefore, appellant has not established clear evidence of error. 

On appeal, appellant contends that the Federal Government placed barriers on his filing 

for benefits, such as denying his request for information and denying his request for subpoena of 

witnesses at his hearing. OWCP, however, previously considered these arguments in its prior 

decisions. Furthermore, some of the arguments raised by appellant on appeal are outside the 

jurisdiction of the Board.16 As noted, none of the evidence submitted on reconsideration raises a 

substantial question concerning the correctness of OWCP’s decision.17

CONCLUSION 

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

review of the merits as his request was untimely filed and failed to establish clear evidence of 

error. 

 16 To the extent that appellant asserts that he was denied due process by his employing establishment, the Board 

notes that this argument would be related to a constitutional question. The Supreme Court has held that 

constitutional questions are unsuited to resolution in administrative hearing procedures. See Johnson v. Robinson, 

415 U.S. 361 (1974) and cases cited therein. See also Robert F. Stone, id.; Diana L. Smith, 56 ECAB 524 (2005). 

17 A.S., Docket No. 11-356 (issued September 16, 2011). 
8

ORDER 

IT IS HEREBY ORDERED THAT the April 1, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board