United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 15-1029 

Issued: August 5, 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 April 3, 2015 appellant filed a timely appeal of an October 10, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision 

issued by OWCP was dated May 7, 2012, more than 180 days prior to 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 to review the merits of this claim.2

 

ISSUE 

The issue is whether OWCP properly determined that appellant’s application for 

reconsideration was untimely and failed to show clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 

2

 For final adverse OWCP decisions issued on or after November 19, 2008, a claimant has 180 days to file an 

appeal with the Board. 20 C.F.R. § 501.3(e). 
2

On appeal, appellant submitted additional evidence and argues that the evidence was 

sufficient to establish her claim.3

FACTUAL HISTORY 

On November 10, 2011 appellant, then a 53-year-old nurse, filed an occupational disease 

claim (Form CA-2) for an allergic reaction to fumes from a floor cleaner. In a narrative 

statement, she indicated that her first exposure was on October 27, 2011 as her office was 

cleaned and waxed the prior evening. Appellant sneezed and felt nauseated and flushed. She 

submitted reports indicating that she received hospital treatment on October 27, 2011. 

By decision dated December 20, 2011, OWCP denied the claim because it found that the 

factual evidence did not establish an incident and that the medical evidence did not establish a 

diagnosed injury related to federal employment. 

Appellant requested a review of the written record by an OWCP hearing representative. 

She submitted additional evidence regarding treatment on October 27, 2011. In addition, 

appellant submitted evidence with respect to treatment in 2007 for an allergic reaction to 

cleaners. 

In a decision dated March 16, 2012, the hearing representative affirmed the December 20, 

2011 decision. She found that it was not clear whether appellant was claiming an injury 

resulting from one exposure on October 27, 2011, or multiple exposures. The hearing 

representative also found the medical evidence did not establish an injury casually related to 

exposure in federal employment. 

On April 2, 2012 appellant requested reconsideration. She submitted a January 30, 2012 

report from Dr. Paula Waddy, who stated that appellant was seen for coughing, nausea, 

vomiting, and sneezing after she had arrived at work. Dr. Waddy diagnosed allergic reaction to 

ammonia. 

OWCP reviewed the merits of the claim and by decision dated May 7, 2012, denied 

modification. It found the medical evidence was insufficient to establish the claim. 

Appellant again requested reconsideration on February 26, 2013. By decision dated 

April 23, 2013, OWCP found the evidence was insufficient to warrant merit review of the claim. 

On October 2, 2014 OWCP received a request for reconsideration. Appellant reported in 

a September 21, 2014 letter that the exposure at work occurred on October 27, 2011, January 30, 

2012, April 24, May 21, and October 25, 2013, and June 18, 2014. She submitted CA-2 forms 

dated November 1, 2013 and June 18, 2014, alleging an allergic reaction. Appellant included 

e-mail correspondence about a request for an accommodation by the employing establishment 

for her allergic reactions. 

 3

 The Board’s review of a case is limited to evidence that was before OWCP at the time of the final decision on 

appeal. 20 C.F.R. § 501.2(c)(1). 
3

As to medical evidence, appellant submitted a brief report dated May 21, 2013 from 

Dr. Colette Hawthorne, a Board-certified internist. Dr. Hawthorne indicated that appellant was 

treated for an allergic reaction. She reported appellant had a known history of allergic reaction 

to cleaners. Appellant submitted a June 20, 2013 report from Dr. Miguel Battle, a family 

practitioner. Dr. Battle stated that appellant had been treated for several years for allergies which 

could be triggered by floor cleaners and products with ammonia. Despite this statement, he also 

opined that it might be difficult to know what had caused appellant’s reaction. In a report dated 

October 25, 2013, Dr. Eugene Gnida, a Board-certified internist, stated that appellant had needed 

a wheelchair and the staff reported that she had fainted in response to cleaning chemicals. 

Appellant submitted a report dated June 14, 2014 from Dr. Andrew Reidy, an osteopath, 

indicating that she was treated on June 11, 2014 for an allergic reaction. Dr. Reidy indicated that 

appellant reported she had an allergy to cleaning products and the floors had just been cleaned at 

work. He provided results on examination and diagnosed allergic reaction. 

By decision dated October 10, 2014, OWCP found appellant’s reconsideration request 

was untimely. It denied the request without merit review of the claim, finding that the request 

failed to show clear evidence of error. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.4 The 

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”5

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.6

 This section gives OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.7

 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA.8

 As one such limitation, 20 C.F.R. § 10.607 provides that an application for 

reconsideration must be received within one year of the date of OWCP’s decision for which 

review is sought.9

 OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error in its most recent merit decision. The evidence must be 

positive, precise, and explicit and must manifest on its face that OWCP committed an error.10 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.605 (2012). 

6 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

7

 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 

8

 5 U.S.C. §§ 8101-8193. 

9

 20 C.F.R. § 10.607 (2012). 

10 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 
4

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting medical opinion or establish a clear procedural error, but 

must be of sufficient probative value to shift the weight of the evidence in favor of the claimant 

and raise a substantial question as to the correctness of OWCP’s decision.11 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.12 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.13 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.14 

ANALYSIS 

Appellant had filed an occupational illness claim alleging an injury causally related to 

exposure to fumes from floor cleaners. The last decision on the merits of the claim was dated 

May 7, 2012. The application for reconsideration was received on October 2, 2014. As this is 

more than one year after the May 7, 2012 decision, it is untimely. 

Because the application for reconsideration was untimely, appellant must show clear 

evidence of error by OWCP. OWCP had denied the claim based on both the factual and medical 

evidence. As of the May 7, 2012 decision, appellant had discussed an October 27, 2011 incident, 

but submitted medical evidence with respect to allergic reactions in 2007, as well as October 27, 

2011 and January 30, 2012 incidents. OWCP properly noted that there was some confusion as to 

the specific incidents of exposure appellant was alleging contributed to a diagnosed injury. On 

reconsideration appellant has further expanded her claim and discussed additional incidents of 

alleged allergic reactions through June 2014. This does not support a finding of clear evidence 

of error by OWCP in its May 7, 2012 decision. The claim was for an occupational illness that 

occurred from employment factors over more than one workday. OWCP denied the claim in part 

because the medical evidence did not contain a reasoned medical opinion, based on a complete 

background, with respect to a diagnosed condition causally related to the employment factors. 

The medical evidence submitted on reconsideration does not establish clear evidence of 

error. The report from Dr. Hawthorne refers to a May 21, 2013 reaction, Dr. Gnida to an 

October 25, 2013 allergic reaction, and Dr. Reidy to a June 11, 2014 incident. None of these 

physicians provide a complete medical and factual history discussing the prior incidents of 

employment exposure, or a reasoned opinion as to a diagnosed condition causally related to the 

identified employment incidents. Dr. Battle refers to treatment over several years for allergies, 

without providing a complete history or a probative medical opinion on causal relationship 

between a diagnosed condition and federal employment exposure. 

 11 Annie L. Billingsley, 50 ECAB 210 (1998). 

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

13 Id. 

14 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 
5

Moreover, even if appellant submitted medical evidence that could be construed to 

support a finding contrary to OWCP’s finding, this is not clear evidence of error.15 For the 

reasons stated, the Board finds that appellant has not shown clear evidence of error. 

On appeal appellant argues that OWCP dismissed all of her diagnoses and medical 

treatment for the episodes of exposure to cleaners and fumes. The Board does not have 

jurisdiction over these issues regarding the merits of the claim for compensation. Appellant did 

not show clear evidence of error and OWCP correctly denied the reconsideration request in this 

case. 

CONCLUSION 

The Board finds that OWCP properly determined appellant’s application for 

reconsideration was untimely and failed to show clear evidence or error. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated October 10, 2014 is affirmed. 

Issued: August 5, 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 

 15 Supra note 12.