United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Palatine, IL, Employer 

__________________________________________ 

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Docket No. 15-1842 

Issued: January 14, 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 September 8, 2015 appellant filed a timely appeal from a March 16, 2015 nonmerit 

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

elapsed from the last merit decision of January 23, 2014 to the filing of this appeal, and 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 this claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s January 28, 2015 

reconsideration request under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On July 20, 2013 appellant, then a 32-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he experienced an anxiety attack at work when he was given 

 1

 5 U.S.C. § 8101 et seq.
2

instructions contradictory to what he was previously taught. He explained that he was frustrated 

because a supervisor, Jill Lipovsek, would get on the intercom before everyone’s start time of 

8:00 a.m. and issue instructions to punch in, do a vehicle check, and attend a meeting. Appellant 

related that, often when he would return from vehicle check, Ms. Lipovsek had already begun the 

meeting. He reported that management then instructed them not to clock-in prior to the meeting, 

he alleged that he was unable to complete eight hours on a route. Appellant provided a detailed 

timeline of dates and the interactions he had with management from June 11 to 15, 2013. He 

first became aware of his condition and realized it resulted from his employment on 

June 15, 2013. Appellant stopped work on June 15, 2013 and returned on July 1, 2013. 

In a June 15, 2013 e-mail, Elizabeth Wolf, an operations manager, stated that she had 

observed appellant on June 14, 2013 writing down all the addresses on his route that had parcels. 

She advised him that practice was unacceptable. Ms. Wolf related that on June 15, 2013 a 

supervisor took the collection portion of appellant’s route away, but he stated that he could not 

get an eight-hour day completed. She observed him screaming, shaking, and crying that he had 

been harassed for the past five days. An ambulance was called and transported appellant to the 

hospital. 

In an undated statement, Kathleen Larsen, customer service supervisor, reported that on 

June 15, 2013 she approached appellant and informed him that he would not do the collection 

part of his route that day, but had a 45-minute auxiliary on route 1621. She told him that she 

expected him to work eight hours that day. Ms. Larsen related that appellant began shaking his 

head, took his arrow key, and threw it down in his hamper. She explained that he became very 

belligerent and loud and stated that he could not deal with this anymore. Ms. Larsen reported 

that appellant was escorted out the back door and was transported to the hospital for treatment. 

In a handwritten July 12, 2013 report, Dr. Mark Weisberg, a Board-certified internist, 

related that he examined appellant on June 15 and 17 and July 12, 2013. He reported that 

appellant suffered an anxiety attack at work caused by work-related stress. Dr. Weisberg 

explained that appellant developed uncontrollable shaking, uncontrolled body movements, and 

significant rise in blood pressure. He indicated that appellant was evaluated in the emergency 

room and diagnosed with an acute anxiety attack. On June 15 and 17, 2013 Dr. Weisberg 

evaluated appellant and observed that his blood pressure was still elevated. He instructed 

appellant to remain on his medications and to remain off work until the stressors at work 

resolved. Dr. Weisberg noted that appellant returned to work on July 1, 2013. He diagnosed 

uncontrolled hypertension requiring additional medications along with anxiety attack due to 

overwhelming work-related stress. Dr. Weisberg opined that appellant’s illness was directly 

caused from experiencing overwhelming anxiety and stress at his workplace on account of the 

tremendously stressful environment at the time. 

By letter dated October 10, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish his occupational disease claim. It requested additional evidence to 

demonstrate that he actually experienced the employment factors he alleged and additional 

medical evidence to establish that the described employment factors caused or contributed to his 

medical condition. A similar letter was sent to the employing establishment. 
3

On November 11, 2013 OWCP received appellant’s response to the development letter. 

Appellant noted that his condition developed when the management team arrived. He alleged 

that the team was an aggressive group of individuals who were very controlling and demanding 

on a daily basis. Appellant indicated that the team had a lack of care and concern for the 

employees and that on several occasions he was yelled at and told different misleading 

instructions from each member of the team. He described his symptoms as fear, pressure, 

helplessness, hopelessness, confusion, shaking, sadness, and elevated blood pressure. Appellant 

reported that before the “management team” arrived at the employing establishment the 

employing establishment was totally different and he was treated with respect. He noted that he 

was providing witness statements from coworkers. 

Appellant submitted a handwritten June 21, 2013 witness statement from Erik 

Christoffel, a coworker. Mr. Christoffel reported that on June 15, 2013 he was casing route 

1673, which was next to appellant’s route, when appellant told him about the harassment he was 

receiving at work. Appellant related examples of when management advised Mr. Christoffel of 

different times to begin his work shift and whether to write down addresses. Mr. Christoffel 

noted that during their conversation Ms. Larsen confronted appellant about his eight hours and 

questioned why he was still at work. He stated that appellant got upset and broke down. 

Appellant was removed from the docks and paramedics were called. 

In another handwritten statement, Rick Wolfgram, another coworker, explained that he 

was casing route 1675 when he heard a commotion on route 1665. He looked over and observed 

management talking to appellant who was visibly upset. Appellant stated that he wanted to leave 

because he was being harassed and he began to cry and shake. Mr. Wolfgram reported that when 

appellant began to scream and cry he took appellant outside and waited with him until the 

ambulance came to take him to the hospital. 

Annie McCoy, another coworker, further noted in a handwritten statement that on 

June 15, 2013 she was casing her route when she saw David Taylor instructing appellant to line 

his parcels up in the order in which they would go out. Shortly, after, she observed Ms. Larsen 

walk over to appellant and question him in a loud tone regarding why he was not done with his 

work yet. Ms. Larsen then informed him that he had to finish his collection in eight hours. 

Appellant stated that he could not finish in eight hours and became visibly upset. He stated that 

Ms. Larsen was harassing him and he could not take it anymore. Ms. McCoy indicated that 

appellant was shaking and crying. Mr. Wolfgram called 911 and an ambulance arrived shortly. 

In a handwritten October 29, 2013 report, Dr. Weisberg related that during the week of 

June 10 through 15, 2013 appellant experienced a significant amount of emotional stress while at 

work at the employing establishment due to management’s verbal harassment and conflicting 

demands. He explained that management was applying significant emotional pressure on 

appellant in regards to his workload and work requirements. Dr. Weisberg opined that the 

emotional pressure and stress escalated to the point that appellant suffered an acute severe panic 

attack, which led to uncontrollably shaking and becoming emotional labile. He related that 

paramedics came and transported appellant to the nearest hospital where he was treated for 

dangerously high blood pressure. Dr. Weisberg concluded that the emotional trauma from 

extreme pressure being applied by appellant’s superiors directly contributed to a temporary 
4

harmful and detrimental physiologic state, which caused an unacceptably high blood pressure 

along with a panic attack. 

By decision dated January 23, 2014, OWCP denied appellant’s occupational disease 

claim finding that the employment factors he alleged to have caused or contributed to his 

emotional condition were not compensable factors of employment under FECA. 

On January 28, 2015 OWCP received appellant’s January 17, 2015 reconsideration 

request. Appellant stated that his request was based on the fact that it was work-related 

traumatic stress that occurred on the job during work hours. He explained that management 

provoked a hostile work environment and ongoing harassment during his route evaluation 

period. Appellant noted that he was escorted by an ambulance from his employment and would 

be attaching medical reports from the ambulance and the hospital. OWCP did not receive any 

further evidence. 

By decision dated March 16, 2015, OWCP denied appellant’s January 17, 2015 request 

for reconsideration finding that his request did not meet any of the requirements for further merit 

review pursuant to 5 U.S.C. § 8128(a). It determined that his letter did not raise a substantive 

legal question nor include new and relevant evidence. 

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.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, 20 C.F.R. § 10.607(a) provides that 

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.3

 

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. The one-year period begins on 

the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following a reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board, but does not 

include prerecoupment hearing decisions.4 Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the Integrated Federal Employees 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607(a). 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011). 
5

Compensation System (iFECS)). If the request for reconsideration has a document received date 

greater than one year, the request must be considered untimely.5 

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of it in its most recent merit decision. The application must 

establish, on its face, that such decision was erroneous.6

 

The term clear evidence of error is intended to represent a difficult standard. If clear 

evidence of error has not been presented, OWCP should deny the application by letter decision, 

which includes a brief evaluation of the evidence submitted and a finding made that clear 

evidence of error has not been shown.7

 

ANALYSIS 

The most recent decision reviewing the merits of appellant’s case was OWCP’s 

January 23, 2014 decision. As the appeal rights attached to that decision explained, appellant 

had one calendar year from the date of that decision or until January 23, 2015, to ensure receipt 

by OWCP of any reconsideration request. 

OWCP received appellant’s January 17, 2015 reconsideration request on 

January 28, 2015. As the received date was more than one year beyond January 23, 2014, 

appellant’s request must be considered untimely. The proper standard of review for an untimely 

reconsideration request is the clear evidence of error standard. 

In denying appellant’s reconsideration request, OWCP did not determine whether 

appellant’s reconsideration request was untimely filed and did not review the request under the 

clear evidence of error standard. Rather, it applied the standard of review for timely requests for 

reconsideration. As OWCP applied the wrong standard of review to the untimely request for 

reconsideration, the Board will set aside OWCP’s September 29, 2014 decision and remand the 

case for proper review under the clear evidence of error standard as required by regulations.8

 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s January 28, 2015 

reconsideration request under 5 U.S.C. § 8128(a). 

 5 Id.

6

 20 C.F.R. § 10.607. 

7 Supra note 4 at Chapter 1.1602.5.a (October 2011). 

8 See 20 C.F.R. § 10.607(b). See L.D., Docket No. 15-0865 (issued October 6, 2015). 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 16, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further review under 

the clear evidence of error standard. 

Issued: January 14, 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