United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.N., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 16-0419 

Issued: May 19, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 4, 2016 appellant filed a timely appeal of a July 27, 2015 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 days has 

elapsed between the last merit decision dated February 7, 2014 and the filing of this appeal, the 

Board lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’ 

Compensation Act1

 and 20 C.F.R. §§ 501.2(c) and 501.3.2

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted new evidence on appeal. The Board’s jurisdiction is limited to reviewing the evidence that 

was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the 

Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 

36 n.2 (1952). 
2

On appeal appellant contends that her request for reconsideration was timely filed. 

FACTUAL HISTORY 

Appellant, a 55-year-old electronics technician instructor, filed an occupational disease 

claim (Form CA-2) on September 26, 2013 alleging that she developed a respiratory condition 

causally related to employment factors. She asserted that her worksite had ongoing mold issues, 

but that while some improvements were made to room 103 in LSTC Building #211 within the 

past couple of years, a permanent fix was not accomplished. Appellant explained that instructors 

who had been in the building for the majority of a workweek had allergies sneezing, and 

coughing. She stated that her whole body itched, her eyes also burned, and she had bad, constant 

headaches. 

On October 9, 2013 OWCP advised appellant that it required factual and medical 

evidence to determine whether she was eligible for compensation benefits. It requested that she 

submit a comprehensive report from her treating physician describing her symptoms, the medical 

reasons for her condition, and an opinion as to whether her claimed condition was causally 

related to her federal employment. OWCP afforded appellant 30 days to submit this evidence. 

In a report dated September 24, 2013, Dr. Gregg S. Govett, Board-certified in internal 

medicine, noted that appellant was examined on August 26, 2013 for a three-year history of 

malaise, fatigue, insomnia, throat irritation, gastroesophageal reflux disease, coughing, dyspnea, 

irritable bowel syndrome, left forearm pain, back pain, cervical spine pain, blurred vision, carpal 

tunnel symptoms, hives, and chemical sensitivities that developed after being exposed to mold in 

her workplace. He noted that her laboratory testing was positive for tricothecenes, a mycotoxin 

secreted by several species of mold, most notably stachybotris, the “black mold.” Allergy testing 

did not indicate any evidence of mold allergy. Laboratory testing was normal except for a 

positive titer for autoimmune thyroiditis. Dr. Govett concluded that appellant was currently 

infected with the mycotoxin tricothecenes, which could cause other illness. He advised that she 

must stop the pollution from entering her body by completely avoiding all moldy buildings. 

On October 27, 2013 OWCP received a supplemental statement from appellant wherein 

she described in detail her alleged employment-related exposure. 

By decision dated February 7, 2014, OWCP denied appellant’s claim. It accepted that 

she had become infected with mycotoxin tricothecenes, and that the alleged work factors 

occurred, but found that she failed to submit sufficient medical evidence to establish that her 

claimed condition was causally related to the accepted work factors. 

By letter dated February 4, 2015, received on February 10, 2015 appellant requested 

reconsideration. 

With her request for reconsideration appellant submitted a supplemental statement. She 

asserted that her employing establishment had the responsibility to make her work environment a 

pleasant and safe place to work. Appellant explained that her employing establishment was 

aware that the Heating Ventilation and Air Conditioning (HVAC) units were oversized for the 

rooms in LSTC Building #211 causing relative humidity levels to regularly exceed 70 percent in 
3

the building. She also noted that annual inspections of the building, if properly conducted, 

would have revealed evidence of roof leaks, and water entry from all sides of the building due to 

improper ground levels and improper caulking. Appellant alleged that the employing 

establishment knew of excess humidity and mold occurring in the LSTC Building #211 since 

2008, but only took minimal steps to correct the situation at that time. She further outlined that, 

from September 2008 until August 2013, she worked in the LSTC Building #211, averaging 50 

hours/week. Appellant concluded that, due to high humidity levels, having oversized HVAC 

units that could not draw out excess moisture, and having high temperatures in the building due 

to energy conservation mandates, the building became moldy, and as a result, her work 

environment became unpleasant and unsafe. She stated that she exhibited symptoms of mold 

exposure. Appellant noted that she had sinus problems with a constant headache and new 

neurological symptoms including odd senses of smell, tingling back sensations, and constant skin 

itch of the head, back, and especially nose. She related that she tested positive for tricothecene 

mycotoxins on September 3, 2013. Appellant stated that she moved out of the LSTC Building 

#211 in August 2013 and began a daily medical regimen by Dr. Govett to rid her body of 

tricothecene mycotoxins. After the employing establishment advised that, mold abatement had 

been completed (approximately mid-May 2014), she was advised that employees could reenter 

the L5TC Building #211. However, proper mold abatement included cleaning building to ensure 

no dust remains after work has been finished. The LSTC Building #211 was not clean. Heavy 

dust covered everything that had remained in the building during the abatement process only 

after cleaning 95 percent of the lab, was appellant informed that management had provided 

cleanser to use when wiping the mold. Appellant concluded that as of February 2015 her 

condition had improved. 

Appellant submitted a September 3, 2013 mycotoxin panel report, which noted that she 

tested positive for tricothecene. She also submitted a December 2, 2014 report from Dr. Govett, 

wherein he reported that she was initially seen on August 26, 2013 with a number of symptoms, 

after mold exposure. Dr. Govett noted that upon testing appellant was found to have diagnoses 

of autoimmune thyroiditis, adrenal hypofunction, food sensitivities, and tricothecenes. He 

concluded that, after treatment, she had resolved most of her initial complaints and her repeat 

urinalysis showed a significant reduction in triocthecenes. 

OWCP also received from appellant a September 25, 2006 booklet entitled “Guidance for 

Management of Mold in FAA Facilities.” 

By decision dated July 27, 2015, OWCP denied appellant’s request for reconsideration 

without a merit review, finding the request was untimely filed and failed to demonstrate clear 

evidence of error. 

LEGAL PRECEDENT 

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

claimant’s application for review must be received within one year of the date of that decision.3 

 3

 20 C.F.R. § 10.607(a). 
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.4 

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 decided by OWCP. The evidence must be positive, precise 

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

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.6 

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

decision is insufficient to establish clear evidence of error.7 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.8 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.9 The Board makes an independent determination 

as to whether a claimant has submitted clear evidence of error on the part of OWCP.10 

ANALYSIS 

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

application for review. It issued its most recent merit decision in this case on February 7, 2014. 

Appellant’s request for reconsideration was received by OWCP on February 10, 2015. 

Therefore, the Board finds that the request was untimely as it was received outside of the oneyear time limit. 

The Board further finds that appellant’s February 10, 2015 untimely request for 

reconsideration failed to demonstrate clear evidence of error. OWCP has accepted that she was 

diagnosed with mycotoxin tricothecenes, and that the alleged work factors occurred, but found 

that she failed to submit sufficient medical evidence to establish that her claimed condition was 

causally related to the accepted work factors. With her request for reconsideration, appellant 

submitted the myocotoxin panel report and Dr. Govett’s December 2, 2014 report, both of which 

 4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

5

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

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

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

8 Id.

9 Id.

10 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 
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confirmed the diagnosis. She did not however submit medical evidence which explained how 

her diagnosed condition was caused by the accepted employment factors. Appellant did not 

submit medical evidence sufficient to prima facie shift the weight of the evidence in her favor or 

raise a substantial question as to the correctness of OWCP’s decision. Consequently, she has 

failed to demonstrate clear evidence of error on the part of OWCP such that it abused its 

discretion in denying merit review. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s reconsideration request 

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

ORDER 

IT IS HEREBY ORDERED THAT the July 27, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 19, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board