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. 15-1788 

Issued: April 26, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 26, 2015 appellant filed a timely appeal from a May 12, 2015 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 to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act2

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

501.3, the Board lacks jurisdiction to review the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

the grounds that it was untimely filed and failed to establish clear evidence of error. 

 1

 Appellant timely requested an oral argument pursuant to 20 C.F.R. § 501.5 (b). On February 19, 2016 the Board 

exercised its discretion and denied the request as the arguments on appeal could be adequately addressed in a 

decision based on review of the record. Order Denying Request for Oral Argument, Docket No. 15-1788 (issued 

February 19, 2016). 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board.3 By decision dated March 19, 2015, the 

Board affirmed the April 1, 2014 OWCP decision which denied further merit review of 

appellant’s case as his February 26, 2014 request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. The facts and circumstances of the case as set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. 

On June 5, 2007 appellant, then a 47-year-old health insurance specialist, filed both 

traumatic injury (Form CA-1) and occupational disease (Form CA-2) claims alleging that he 

experienced significant stress and sustained a traumatic mental injury as a result of harassment 

and discrimination by the employing establishment and a verbally abusive and threatening work 

environment. He noted that the employing establishment banned him from its buildings and 

asserted that the employing establishment prevented him from filing a workers’ compensation 

claim. In the occupational disease claim, appellant alleged that he developed a stress-related 

condition and first realized that it was caused or aggravated by his employment in 1994. He was 

terminated from employment on May 6, 1997. 

In a June 12, 2007 statement, the employing establishment controverted the claim on the 

basis that appellant did not file a timely notice of injury within three years of the claimed injury. 

It also pointed out that none of his supervisors were available to confirm or refute his claims. 

By letter dated June 15, 2007, OWCP advised appellant that the evidence submitted was 

insufficient to establish his claim. It requested that appellant explain the delay in filing the 

claim, describe the specific work factors he attributed to his claim, and explain the development 

of his condition. OWCP also requested supporting documentation and a detailed medical report 

addressing the causal relationship of the alleged work factors and his condition. 

On June 5, 2007 appellant filed a claim for wage-loss compensation (Form CA-7) 

benefits. On the back of the claim form, the employing establishment noted that there was no 

record of any wage loss and that appellant was terminated on May 6, 1997. 

In a nine-page statement dated July 30, 2007, appellant described various incidents at 

work which he believed constituted a hostile, threatening, and racially insensitive environment, 

the medical and psychological treatment he sought, and his attempts to complete the appropriate 

forms and paperwork with the employing establishment. He noted that he first filed a complaint 

with the employing establishment in 1994 but no action was taken. Appellant submitted various 

notices of disciplinary action from the employing establishment, medical documents, Office of 

Personnel Management (OPM) personnel records, and an affidavit from Kermit E. Lee, a 

computer systems specialist at the employing establishment. 

By decision dated August 31, 2007, OWCP denied appellant’s occupational disease claim 

as it had not been timely filed. It found that he did not file his claim within the 3-year time 

period of the alleged injury as required under FECA and the evidence of record did not establish 

that appellant’s immediate supervisor had actual knowledge within 30 days of the date of injury. 

 3

 Docket No. 14-1242 (issued March 19, 2015). 
3

On October 12, 2007 OWCP received appellant’s request for an oral hearing before an 

OWCP hearing representative. In an attached 11-page statement, he requested tolling of the 

three-year filing of claim requirement because he provided verbal and written notice to his 

employer of a possible work-related injury. Appellant also alleged that the employing 

establishment acted wrongly and cited various cases regarding error and abuse on the part of the 

employing establishment. He described the harassment and hostile work environment he 

believed contributed to his condition. Appellant further requested that the Branch of Hearings 

and Review produce the presence of specific witnesses and documents. He resubmitted his 

July 30, 2007 statement and various documents. 

In a July 8, 2008 letter, an OWCP hearing representative denied appellant’s request for 

the issuance of a subpoena. 

On July 29, 2008 a hearing was held. Appellant explained that he did not notify the 

employing establishment sooner because he did not realize that he was injured at that time. He 

asserted that various e-mails and discussions he had with his supervisors about work-related 

events, specifically a November 19, 1996 incident, when he felt harassed and discriminated 

against, put them on “notice” that the work incidents he described could have caused or resulted 

in his condition. Appellant further alleged that his untimely filing should be excused under the 

“equitable tolling rule” because the employing establishment showed misconduct in its actions 

by barring him from the building, not assisting him or providing him with information, and 

allowing the filing deadline to pass. 

In a September 12, 2008 statement, appellant reiterated his allegations that the equitable 

tolling rule should apply in this case and resubmitted various documents. He also provided 

additional personnel records, Equal Employment Opportunity Commission (EEOC) complaints 

and decisions, medical reports, and insurance billing statements. 

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

August 31, 2007 decision. 

On August 7, 2009 OWCP received appellant’s request for reconsideration. In an 11-

page statement, appellant asserted that the date of injury was March 3, 1997 and that he had 

notified various individuals and union representatives of the incidents at work which he 

attributed to his emotional condition. He stated that he reported his injury on March 4, 2007 and 

expressed interest in filing a workers’ compensation claim. Appellant indicated that his 

emotional condition prevented him from being aware of the time limitation to file a claim. He 

further alleged that OWCP erred in denying an “excusable neglect waiver” of the three-year time 

limitation. Appellant noted several federal laws and court proceedings in support of his 

contention. 

Appellant submitted copies of the American with Disabilities Act of 2008; Executive 

Orders 13078, 13163, 13217; various court and administrative decisions and documents; and 

handwritten notations. He also resubmitted evidence previously of record. 

In a decision dated September 17, 2009, OWCP affirmed the December 1, 2008 decision 

denying his claim as untimely filed. 
4

Appellant subsequently submitted multiple requests for reconsideration which OWCP 

denied, finding that the evidence submitted was insufficient to warrant further merit review. 

On June 20, 2013 appellant again requested reconsideration. He reiterated his previous 

arguments and resubmitted medical reports, personnel records, and the MSPB decision. In a 

nonmerit decision dated June 27, 2013, OWCP denied appellant’s June 20, 2013 reconsideration 

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

On February 26, 2014 appellant again requested reconsideration. He asserted that it was 

inconsistent that the Secretary of the U.S. Department of Labor approved his disability claim 

under an UnumProvident Settlement while OWCP continued to deny his workers’ compensation 

claim. Appellant provided two pages of frequently asked questions about The UnumProvident 

Settlement. By decision dated April 1, 2014, OWCP again denied appellant’s February 26, 2014 

request for reconsideration. It determined that appellant’s request was untimely filed and failed 

to establish clear evidence of error. 

Appellant appealed to the Board. On March 19, 2015 the Board affirmed the April 1, 

2014 OWCP decision denying appellant’s reconsideration request as untimely filed and failing to 

establish clear evidence of error. 

On March 28, 2015 appellant again requested reconsideration. He alleged that his 

occupational disease claim should be considered timely based on federal employee misconduct, 

human rights violations, federal and state employee trickery, and racial profiling. Appellant 

explained that federal employees were aware of 5 U.S.C. §§ 8122 and 8128 regarding the time 

limitations to file a workers’ compensation claim before he applied for workers’ compensation. 

He cited Irwin v. Veterans Administration, 498 U.S. 89 (1990). Appellant also resubmitted a 

copy of 5 U.S.C. § 8122, Executive Order 13107, the concurring opinion of Supreme Court 

Justice Sandra O’Connor in the case Arizona v. Isaac Evans (issued March 1, 1995), Rules 

Governing Petitions for Executive Clemency from the U.S. Department of Justice, and 

Appointment Affidavits dated September 29, 1987 and February 17, 1989. 

By decision dated May 12, 2015, OWCP denied appellant’s March 28, 2015 

reconsideration request finding that it was untimely filed and failed to establish clear evidence of 

error. 

LEGAL PRECEDENT 

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

OWCP regulations provide that an application for reconsideration must be received by OWCP 

within one year the last merit decision for which review is sought.4 The Board has found that the 

imposition of the one-year time limitation does not constitute an abuse of the discretionary 

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

 

 4

 20 C.F.R. § 10.607. 

5

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

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

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

undertake a limited review of the evidence previously of record to determine whether the new 

evidence demonstrates 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. The evidence must be positive, precise, and explicit, and it 

must manifest on its face that OWCP committed an error.8

 Evidence that does not raise a 

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

clear evidence of error.9

 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.10 

ANALYSIS 

In the last merit decision of appellant’s case, dated September 17, 2009, OWCP denied 

appellant’s occupational disease claim on the basis that he did not file his claim within the threeyear limitation period provided in 5 U.S.C. § 8122(b). As it received appellant’s March 28, 2015 

request for reconsideration more than one year after the September 17, 2009 merit decision, the 

Board finds that OWCP properly determined that it was untimely filed. Consequently, appellant 

must demonstrate clear evidence of error on the part of OWCP in denying his claim for 

compensation.11

Along with his reconsideration request, appellant asserted that his claim should be 

reopened due to federal employee misconduct. He alleged that federal employees were aware of 

sections 5 U.S.C. §§ 8122 and 8128 regarding the time frame to file workers’ compensation 

claims before he filed his claim. Appellant noted that federal employees were also aware of his 

ineligibility, human rights violations, state and federal employee misconduct, state and federal 

employee trickery, racial profiling, his being under the care of a mental health provider, and no 

effective representation but still denied his claim. He provided a photocopy of part of the 

decision Irwin v. Veterans’ Administration, 498 U.S. 89, which addressed equitable tolling. 

 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. 

8 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

9 Jimmy L. Day, 48 ECAB 652 (1997). 

10 Id. 

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

149 (2005). 
6

This, however, does not raise a substantial question as to the correctness of OWCP’s 

September 17, 2009 merit decision. The evidence submitted by appellant with his March 28, 

2015 reconsideration request does not establish that appellant filed a timely occupational disease 

claim or that the employing establishment had timely notice of his injury. He has not presented 

any evidence to raise a substantial question as to the correctness of OWCP’s decision to deny his 

claim. The Board finds, therefore, that appellant has not established clear evidence of error. 

On appeal, appellant alleges that various federal agents and employees harassed and 

discriminated against him. He submitted a copy of Rules Governing Petitions for Executive 

Clemency, Article 2 Section 2 of the Constitution and various documents from the Federal 

Register. None of these allegations or evidence submitted, however, raise a substantial question 

concerning the correctness of OWCP’s decision or manifests on its face that OWCP’s decision 

was in error. 

As none of the evidence raises a substantial question concerning the correctness of 

OWCP’s September 17, 2009 merit decision, appellant has failed to establish clear evidence of 

error on the part of OWCP in denying further merit review. 

CONCLUSION 

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

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

clear evidence of error. 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 12, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 26, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board