United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.S., Appellant 

and 

DEPARTMENT OF THE ARMY, U.S. ARMY 

EUROPE, Kaiserslautern, Germany, Employer 

_________________________________________ 

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Docket No. 15-1420 

Issued: November 10, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 16, 2015 appellant filed a timely appeal from a February 24, 2015 nonmerit 

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

elapsed from November 22, 2013, 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. 

ISSUE 

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

reconsideration was untimely filed and failed to present clear evidence of error. 

FACTUAL HISTORY 

On February 17, 2010 appellant, then a 56-year-old finance technician filed an 

occupational disease claim (Form CA-2), asserting that from August 17, 2009 to February 4, 

 1

 5 U.S.C. § 8101 et seq. 
2

2010 he was assigned to work in Building 3245 in the Kleber Kaserne military compound in 

Kaiserslautern, Germany, which was contaminated with mold and he experienced chronic 

symptoms of nose and throat irritation, watery eyes, and scalp and skin irritation. He became 

aware of his condition on January 19, 2010. Appellant did not stop work. 

By letter dated July 27, 2011, OWCP advised appellant of the type of evidence needed to 

establish his claim, particularly requesting that he submit a physician’s reasoned opinion 

addressing the relationship of his claimed condition and specific employment factors. 

In a letter dated July 26, 2010, appellant asserted that he had sick building syndrome 

from working in Building 3245. He noted his exposure was from August 2007 to July 2008 and 

from August 2009 to January 2010. Appellant indicated that there was mold growing on stair 

wells and there was a sewage leak in 2009. He submitted a February 10, 2010 report from 

Dr. Karin Claren, a German physician, who treated appellant on January 12, 2010 for itching on 

his head. Dr. Claren diagnosed tinea capitis and prescribed a topical solution, shampoo and 

tablets. She noted the laboratory test results revealed a culture plate of mold fungus. Appellant 

submitted a November 15, 2010 report from Dr. Van Thong Nguyen, a German physician, who 

treated appellant from May 4 to July 29 2010, for severe itching, a rash on his head, tinnitus, and 

loss of concentration. Dr. Nguyen noted that diagnostic testing revealed mold exposure. He 

determined that appellant had mold poisoning on the scalp with inflammation which spread over 

his whole body, arteries, liver, and lymph nodes causing reduced vision, weakness, poor 

concentration and tinnitus. Dr. Nguyen noted that the clinical course was detoxification, 

cleansing through herbs, acupuncture, and strengthening of the immune system. 

Also submitted was an executive summary for the industrial hygiene survey for Building 

3245 Leber Kaserne military compound, Kaiserslautern, Germany dated March 11 and 

April 8, 2010. The survey recommended the basement of Building 3245 be inspected for 

moisture incursion near room 012; a determination be made of the cause of musty odors in a 

basement storage area; removal of the carpet in room 007; and cleaning of the surfaces 

contaminated with microbial growth. 

In a decision dated October 21, 2011, OWCP denied appellant’s claim for compensation 

because the evidence did not support that the injury or events occurred as alleged. 

On September 24, 2012 appellant requested reconsideration and submitted additional 

evidence. He submitted a report from Dr. Jahannes Thum, a German physician, dated 

December 7, 2012, who treated him for a severe skin disease with ulceration, folliculitis, and 

severe itching. Dr. Thum diagnosed mold fungus infection of the skin. He noted that appellant 

was disabled from work for several weeks undergoing treatment. Dr. Thum opined that based on 

appellant’s description of events he suspected the infection was caused by the presence of mold 

in the workplace as appellant described huge patches of dark fungus growing on the walls and 

stairways. 

In a decision dated November 9, 2012, OWCP modified the decision dated October 21, 

2011 to reflect that appellant established that he had workplace exposure to dampness, musty 

odors, and air passing over debris-filled window wells. It denied appellant’s claim finding that 
3

the medical evidence failed to establish that the diagnosed condition was causally related to the 

accepted work-related events. 

On October 8, 2013 appellant requested reconsideration. He submitted a statement dated 

October 30, 2013 and noted reporting to his supervisors his exposure to mold while working in 

Building 3245 and informing them of his illness. Appellant noted that management did not act 

on his report until February 17, 2010. He disagreed with OWCP’s denial of his claim and 

asserted that he has submitted sufficient medical evidence to support that his diagnosed condition 

was causally related to his work exposure to mold. Appellant also referenced reports from 

Dr. Nyugen and Dr. Thum. He submitted employing establishment medical records dated 

July 25, 2008 where he was treated for systemic hypertension. In a report dated August 3, 2009, 

appellant was treated for multiple skin lesions on the upper back, abdomen, upper arms, and 

head. He was diagnosed with cellulitis of the scalp and essential hypertension. Appellant 

submitted a March 15, 2010 report from Dr. Claren who treated him for inflammation and 

itching with lesions on his head, rump, and forearms. He noted that the spore’s revealed 

bacterial infection. Dr. Claren noted that a mycological specimen growth could be a fungus and 

diagnosed suspected tinea capitis or folliculitis. 

In a decision dated November 22, 2013, OWCP denied modification of the decision dated 

November 9, 2012. 

By appeal request form dated November 3, 2014 and received on December 3, 2014, 

appellant requested reconsideration. In a November 3, 2014 letter, he disagreed with OWCP’s 

denial of his claim and asserted that he submitted sufficient evidence to support that his 

diagnosed condition was causally related to the accepted work-related events. Appellant noted 

that Dr. Nguyen provided a rationalized opinion describing the causal relationship of his 

condition and his workplace. He noted that Dr. Nguyen and Dr. Claren provided laboratory 

results which supported that he was infected with mold poisoning. Appellant indicated that he 

began to have problems with his skin and eyes while working in Building 3245 and was moved 

to another building and his skin healed. He indicated that in August 2009 he was transferred 

back to Building 3245 and his skin condition returned. 

Appellant submitted employing establishment medical records dated July 25, 2008 and 

August 3, 2009, reports from Dr. Claren dated January 12 and March 15, 2010, an executive 

summary for the industrial hygiene survey for Building 3245 Leber Kaserne military compound, 

Kaiserslautern, Germany dated March 11 and April 8, 2010, a report from Dr. Nguyen dated 

November 15, 2010, a request for reconsideration dated October 30, 2013, a report from 

Dr. Thum dated October 30, 2013, a November 13, 2013 copy of his appeal of the prior OWCP 

decision, a copy of OWCP’s decision dated November 22, 2013, all previously of record. 

By decision dated February 24, 2015, OWCP denied appellant’s request for 

reconsideration as it was untimely filed and did not establish clear evidence of error. 
4

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”2

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.3

 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. To establish clear evidence of error, a claimant must submit evidence 

relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and 

explicit and must be manifest on its face that OWCP committed an error.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 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.5

 

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.8

 The Board makes an independent determination 

as to whether a claimant has submitted clear evidence of error on the part of OWCP.9

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607(a). 

4 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

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

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

7 Id.

8 Id.

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 
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ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. As noted, an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.10 As appellant’s request 

for reconsideration was not received by OWCP until December 3, 2014, more than one year after 

issuance of the November 22, 2013 merit decision, it was untimely. Consequently, he must 

demonstrate clear evidence of error by OWCP in its November 22, 2013 decision. 

The Board finds that appellant has not established clear evidence of error on the part of 

OWCP. In his November 3, 2014 reconsideration request, appellant disagreed with OWCP’s 

decision denying his claim for an occupational disease. He indicated that he began to have 

problems with his skin and eyes while working in Building 3245. Appellant asserted that 

Drs. Nguyen and Claren provided rationalized opinions describing the causal relationship of his 

skin condition and his workplace exposure to mold and they provided laboratory results which 

supported that he was infected with mold poisoning. While he addressed his disagreement with 

OWCP’s decision denying his claim for an occupational disease, this does raise a substantial 

question as to the correctness of OWCP’s decision. As noted, 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. 

In support of his reconsideration request, appellant also submitted evidence. He 

submitted employing establishment medical records dated July 25, 2008 and August 3, 2009, 

reports from Dr. Claren dated January 12 and March 15, 2010, an executive summary for the 

industrial hygiene survey for Building 3245 Leber Kaserne military compound, Kaiserslautern, 

Germany dated March 11 and April 8, 2010, a request for reconsideration dated October 30, 

2013, a report from Dr. Thum dated October 30, 2013, a report from Dr. Nguyen dated 

November 15, 2010, a November 13, 2013 copy of his appeal of the prior OWCP decision, and a 

copy of OWCP’s decision dated November 22, 2013. However, this evidence was previously of 

record. OWCP had previously considered this evidence and appellant, in submitting these 

documents, did not explain how this evidence was positive, precise, and explicit in manifesting 

on its face that OWCP committed an error in denying his claim for compensation. It is not 

apparent how resubmission of this evidence is sufficient to raise a substantial question as to the 

correctness of OWCP’s decision. Thus, this resubmitted evidence is insufficient to show clear 

evidence of error. 

Consequently, appellant has not established clear evidence of error by OWCP in its 

November 22, 2013 decision. 

On appeal, appellant reiterated assertions that he previously made before OWCP 

indicating that he disagreed with OWCP’s decision denying his claim for an occupational 

disease. He asserted that he submitted sufficient evidence to support that his diagnosed 

condition was causally related to the accepted work-related events. However, as noted, the 

 10 20 C.F.R. § 10.607(a). 
6

Board does not have jurisdiction over the merits of the claim. Appellant has not established clear 

evidence of error by OWCP. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the February 24, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board