United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Monroeville, PA, Employer 

__________________________________________ 

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Docket No. 15-1586 

Issued: March 23, 2016 

Appearances: Case Submitted on the Record

Douglas Sughrue, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 17, 2015 appellant, through counsel, filed a timely appeal of a January 23, 2015 

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

180 days elapsed from the last merit decision, dated October 23, 2013, 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 the claim. 

ISSUE 

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

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

On appeal counsel argues that appellant had filed a timely request for reconsideration 

postmarked October 22, 2014 and the claim should therefore be provided a merit review. In 

support of this argument, he asserts that the request form was sent by priority express, two-day 

shipping through the U.S. Postal Service and was available for pick up at OWCP’s mail 

processing center on October 23, 2014, which establishes receipt within one year of the 

 1

 5 U.S.C. § 8101 et seq.
2

October 23, 2013 merit decision. Counsel further asserts that because the request for 

reconsideration was available for OWCP to scan into appellant’s file on Thursday, October 23, 

2014 and because appellant cannot be responsible for how quickly or slowly OWCP picked up 

mail from the appropriate mailbox or concluded its scanning of a document into a file, the 

request should be considered timely. He concludes that merely because the request form was not 

scanned into OWCP system until October 27, 2014 does not establish that the request was 

untimely filed. In support of his arguments, counsel submitted a product and tracking 

information receipt from the U.S. Postal Service. 

FACTUAL HISTORY 

On December 5, 2011 appellant, then a 48-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed stress on the job. In a letter dated 

January 13, 2012, OWCP requested additional factual and medical evidence in support of his 

claim. 

Appellant alleged that on October 24, 2011 he had requested sick leave to attend a 

doctor’s appointment on October 26, 2011 and he placed the request on the desk of his 

supervisor, S.T. He did not receive a response to his request on October 24, 2011 and was not 

scheduled to work on October 25, 2011. Appellant attended his scheduled medical appointment 

on October 26, 2011 and then reported to work. Upon his return to the workplace, S.T., 

questioned the validity of his appointment, allegedly with a demeaning and disrespectful tone. 

Appellant believed that S.T., intended to elevate the conversation into something physical and 

that appellant felt that his personal space was being violated. He developed rapid heartbeat and 

shallow breathing. 

Dr. Richard K. Gongloff, a Board-certified internist, examined appellant on October 31, 

2011 due to chest pain. He did not find that appellant had an acute coronary syndrome. 

Dr. Gongloff reported that appellant claimed to have been at a union meeting and developed an 

abnormal sensation in his chest, dizziness, and light-headedness. Appellant indicated that he had 

been anxious about going back to work, that he was a union steward, that he had daily 

confrontations with management, and that he was fearful that he would require further 

hospitalization. Dr. Gongloff diagnosed atypical chest pain and anxiety state. He found that 

appellant was totally disabled for three weeks. Appellant claimed that, on October 27, 2011 due 

to staffing shortages, he was being forced to violate his work restriction of no overtime. That 

evening he had dinner with a friend and recently retired coworker, Rick Lutz, and at dinner 

became light headed, nauseated, and felt pressure in his chest. Appellant stated that he was 

anxious, confused, and disoriented. Mr. Lutz drove appellant to the hospital. 

On October 28, 2011 appellant received a suspension for 14 days no time-off due to 

failure to follow instructions regarding his October 24, 2011 leave request. The employing 

establishment noted that he had also previously been issued a seven-day no time off suspension 

on October 4, 2011 for improper conduct and failure to follow instructions, but appellant had 

been unaware of the earlier suspension. 

Appellant stated that the employing establishment had experienced a reduction in staff 

causing additional work hours and workload contributing to his stress. He noted that the Plum 

office was recently consolidated with the Monroeville office which resulted in additional work 
3

hours and workload. Appellant reported additional travel to and from work, route adjustments, 

and an additional workload. He alleged that the added workload resulted in the majority of the 

routes working well over a normal eight-hour day. Appellant stated, “This has caused me 

additional stress because of the ongoing disagreements with management regarding whether or 

not the routes are properly evaluated at eight hours.” 

Appellant suffered an anxiety attack after hearing that, another of his supervisors, A.H., 

had died on November 9, 2011 due to a heart attack. He believed that he would be next to die. 

On November 15, 2011 a coworker, M.G., informed appellant of her anxiety due to work issues 

and was also transported by ambulance to a medical facility. This incident increase also 

attributed to his anxiety. 

On November 21, 2011 appellant notified his manager, R.S., of his additional period of 

disability and provided medical documentation from Dr. Gongloff. The manager indicated that 

the medical information provided was insufficient. Appellant discussed with R.S., the October 4, 

2011 7-day suspension, which had been mentioned in the later October 28, 2011 14-day 

suspension. In that discussion, he learned that A.H. had issued the seven-day suspension for 

appellant just prior to his death. Appellant stated that he believed that the employing 

establishment had killed A.H. 

Appellant claimed that, after making that statement, his manager, R.S., walked toward 

him, invading his personal space, and in an elevated voice informed appellant that he would 

write and sign a resignation letter for him so that he would not have to return to the employing 

establishment. He informed R.S. that he felt threatened and asked him not to use that tone to 

address him. Appellant alleged that R.S. then began waving his arms and displaying 

uncontrolled anger. R.S. asked appellant if he believed that he was being threatened. Appellant 

left and experienced a panic attack. 

Appellant generally alleged that the employing establishment had not timely processed 

his occupational disease claim (Form CA-2). He further alleged that R.S. was irritable, sarcastic, 

and hostile when discussing his claim via telephone on December 15, 2011. Appellant again 

experienced an anxiety attack while at a party discussing working conditions on 

December 17, 2011. He reported to work on January 19, 2012 and alleged that he had another 

confrontation with R.S. regarding a notebook and regarding his request for assistance to 

complete his route in eight hours. R.S. denied the assistance and claimed that he would 

discipline appellant for failing to complete the route. Appellant responded that he needed 

medical attention and R.S. threatened him with additional discipline if he abandoned his route. 

On January 23, 2012 appellant was seen by Dr. Gongloff who found that appellant was 

able to work a maximum of eight hours per shift to minimize his work-related stress from 

January 20 through 31, 2012. In a February 6, 2012 note, Dr. Gongloff diagnosed anxiety with 

panic attacks and high blood pressure. He attributed appellant’s anxiety to adverse working 

conditions and interactions with management. On March 26 and April 16, 2012 Dr. Gongloff 

again restricted appellant to working no more than eight hours a shift due to his diagnosed 

anxiety and panic disorder which were exacerbated by work-related stress. 

Appellant worked on January 24, 2012 and alleged that he was denied union time to 

process grievances. He began his route, reported to D.M., a supervisor, that he would not be able 
4

to complete it within his eight-hour work restrictions, and returned with mail after eight hours. 

D.M. disputed the allegation and claimed that appellant only had six hours of mail to deliver and 

there was no basis for failure to make the deliveries. 

The employing establishment proposed to terminate appellant on February 9, 2012 due to 

his failure to follow instructions and not completing his assigned tasks within eight hours on 

January 24, 2012. 

By decision dated August 6, 2012, OWCP accepted as factual that appellant was required 

to exceed his eight-hour a day work restriction, but that the medical evidence was insufficient to 

establish that the employment factor of exceeding work restrictions caused or contributed to his 

diagnosed conditions. 

Appellant timely requested reconsideration on July 19, 2013. Counsel argued that he was 

providing new medical evidence requiring review of the merits. He further alleged that appellant 

had substantiated additional compensable factors of employment, including verbal altercations 

and a tense relationship with his supervisor, harassment, and an additional verbal abuse episode 

on May 2, 2012 supported by witness statements. 

In a report dated December 18, 2012, Dr. Louis K. Hauber, a Board-certified psychiatrist, 

diagnosed major depression and panic disorder. He opined that appellant’s current work 

environment was aggravating his underlying psychiatric disorder. 

Dr. Joel I. Last, a Board-certified psychiatrist, completed a report on February 5, 2013 

and attributed appellant’s anxiety to an overburdened route, forced mandatory overtime, 

understaffing, and abusive management. He opined that appellant could not work more than 

eight hours a day due to his diagnoses of anxiety and depression which are “a direct result of the 

stress [appellant] is experiencing in his work environment.” Dr. Marnin E. Fischbach, a 

psychiatrist, submitted a report dated May 20, 2013 noting that he had examined appellant on 

December 31, 2012. He described appellant’s increased work hours due to the closure of the 

Plum, PA employing establishment, which included working more than 10 hours a day. 

Dr. Fischbach noted that the extra hours were a major stressor for appellant. He noted that 

appellant alleged that he continued to be harassed by his supervisor about his eight-hour a day 

work restriction and that his supervisor threatened him in May 2012 due to his poor work 

performance. Dr. Fischbach diagnosed panic disorder without agoraphobia and opined that this 

condition was precipitated by intensely stressful events. 

Dr. Gongloff completed a report on May 28, 2013 and again diagnosed anxiety with 

panic attacks in addition to high blood pressure. A coworker, T.R., submitted a witness 

statement alleging on October 26, 2011 S.T. asked appellant, in an elevated hostile tone, why he 

attended a doctor’s appointment. T.R. asserted that S.T.’s actions were belligerent, 

unprofessional, disrespectful, and hostile. He stated that S.T. interrupted appellant when he tried 

to offer explanations. 

Appellant submitted two letters from postal customers who wrote of their observations of 

a man in a red vehicle following and verbally confronting their mail carrier, appellant, while he 

was on his route. 
5

By decision dated October 23, 2013, OWCP denied modification of its prior decision 

dated August 6, 2012 and noted on May 6, 2013 that appellant had filed a separate traumatic 

injury claim (Form CA-1) alleging that he experienced chest pains on May 4, 2012 as a result of 

harassment by his supervisor. This traumatic injury claim was accepted for aggravation of panic 

disorder. However, OWCP found that the medical evidence was insufficient to establish that 

appellant’s panic disorder was caused or contributed to by his accepted employment factor of 

work outside his eight-hour restriction. It determined that there was no rationalized medical 

opinion evidence supporting a causal relationship between his diagnosed conditions and his 

accepted employment factor. 

Appellant requested reconsideration through an undated letter postmarked October 22, 

2014 and received by OWCP on October 27, 2014. He alleged that his stress began in the spring 

of 2011 with the consolidation of the Plum and Monroeville offices. Appellant repeated his 

allegations that he was forced to work overtime, and that the employing establishment had not 

properly staffed the office or maintained the length of the routes in proper adjustment. He 

alleged that his anxiety and panic attacks were caused by mandatory overtime as well as the 

abusive acts of his supervisors. Appellant submitted five statements from coworkers alleging 

that when the Plum station was moved to Monroeville, this added additional travel time of 30 

minutes for all the routes, that routes were over eight hours, and that carriers were forced to work 

overtime resulting in stressful working conditions. 

By decision dated January 23, 2015, OWCP declined to reopen appellant’s claim for 

consideration of the merits as his request for reconsideration was untimely filed and did not 

establish clear evidence of error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA2

 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.3 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.4 OWCP, through regulations has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP will 

not review a decision denying or terminating a benefit unless the application for review is timely. 

In order to be timely, a request for reconsideration must be received by OWCP within one year 

of the date of OWCP’s merit decision for which review is sought. Timeliness is determined by 

the document receipt date of the reconsideration request (the “received date”) in the Integrated 

Federal Employee’s Compensation System (iFECS).5

 The Board has found that the imposition 

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

granted OWCP under 5 U.S.C. § 8128(a).6

 2 Id. at § 8128(a). 

3 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

4 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

5

 20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(October 2011). G.F., Docket No. 15-1053 (issued September 11, 2015). 

6

 Supra note 3 at 769; Jesus D. Sanchez, supra note 4 at 967. 
6

In those cases where requests for reconsideration are untimely filed, the Board has held 

that OWCP must nevertheless undertake a limited review of the case to determine whether there 

is clear evidence of error pursuant to the untimely request.7 OWCP procedures state that OWCP 

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

forth in OWCP regulations, if the claimant’s request for reconsideration shows “clear evidence 

of error” on the part of OWCP.8

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which was decided by OWCP.9

 The evidence must be positive, precise, and explicit and must be 

manifest on its face that OWCP committed an error.10 Evidence which does not raise a 

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

clear evidence of error.11 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record 

and whether the new evidence establishes clear error on the part of OWCP.13 To establish clear 

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

a conflict in 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.14 The Board must make an independent 

determination of whether a claimant has submitted clear evidence of error on the part of OWCP 

such that OWCP abused its discretion in denying merit review in the face of such evidence.15

ANALYSIS 

The Board finds that appellant’s October 2014 request for reconsideration was untimely 

filed as it was not received into iFECS by OWCP within one year of the most recent merit 

decision dated October 23, 2013 as required. OWCP procedures provide that the one-year time 

limitation period for requesting reconsideration begins on the date of the original OWCP 

decision.16 A right to reconsideration within one year also accompanies any subsequent merit 

 7

 Supra note 3 at 770. 

8 See supra note 5 at Chapter 2.1602.5 (October 2011). 

9

 Supra note 3. 

10 Leona N. Travis, 43 ECAB 227, 241 (1991). 

11 Jesus D. Sanchez, supra note 4 at 968. 

12 Supra note 10. 

13 Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

14 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 

15 Nancy Marcano, 50 ECAB 110 (1998). 

16 20 C.F.R. § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Supra note 5 at Chapter 2.1602.4 (October 2011). 
7

decision on the issues.17 As OWCP received appellant’s October 2014 request for 

reconsideration into its iFECS system on October 27, 2014, more than one year after the last 

merit decision of record dated October 23, 2013, it was untimely. Consequently, appellant must 

establish clear evidence of error by OWCP in denying his claim for compensation.18

On appeal counsel argues that OWCP timely received his request for reconsideration on 

October 23, 2014 as evidenced by the tracking receipt he submitted, on appeal, in support of this 

contention. The Board, however, cannot review this evidence for the first time on appeal.19 

Furthermore, according to OWCP procedures, the received date is determined solely by the 

document received date in iFECS, October 27, 2014.20 This date of receipt makes the 

reconsideration request untimely.21 

The Board further finds that appellant’s untimely request for reconsideration did not 

establish clear evidence of error on the part of OWCP. 

OWCP denied appellant’s emotional condition claim finding that he had not submitted 

the necessary medical opinion evidenced to establish that his anxiety and depression were 

causally related to the requirement that he work more than eight hours per day, an accepted 

factor of employment. In support of his request for reconsideration, appellant submitted no 

additional medical evidence relating to the accepted employment factor. Instead, he repeated his 

allegations that he was forced to work overtime and that the employing establishment did not 

properly staff the office or maintain the routes in proper adjustment. Appellant alleged that his 

anxiety and panic attacks were caused by mandatory overtime as well as the abusive acts of his 

supervisors. He submitted additional witness statements that employees were required to work 

more than eight hours to complete their assigned routes and that this was stressful. The 

additional witness statements, however, do not raise a substantial question as to the correctness 

of OWCP’s decision. While appellant’s coworkers generally spoke to the change in work hours 

and increased stress, these statements do not establish error in OWCP’s decision.22 In order to 

establish clear evidence of error, the evidence must be of sufficient probative value to shift the 

weight of evidence in favor of the claimant and raise a substantial question as to the correctness 

of the merits of OWCP’s decision. The Board finds that the evidence submitted on 

reconsideration failed to meet this standard and, thus, OWCP properly denied merit review.23

 17 Robert F. Stone, 57 ECAB 292 (2005). 

18 20 C.F.R. § 10.607(b); G.F., Docket No. 15-1052 (issued September 11, 2015). 

19 Id. at § 501.2(c). 

20 Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.4(b) (October 2011). 

21 G.F., Docket No. 15-1052 (issued September 11, 2015) (finding that the timeliness of a request for 

reconsideration is not determined by a tracking receipt, but by the date the reconsideration request is entered into 

iFECS). 

22 Robert G. Burns, 57 ECAB 657 (2006). 

23 Id.
8

Appellant also submitted a copy of the obituary of A.H. and resubmitted his 

October 2011 14-day suspension. He did not explain how these documents, on their face, could 

establish clear evidence of error on the part of OWCP.24 The Board finds that this additional 

factual evidence does not establish clear error on the part of OWCP and is therefore insufficient 

to require OWCP to reopen appellant’s claim for consideration of the merits. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely and did not 

establish clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT January 23, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 24 Z.T., Docket No. 15-0250 (issued July 16, 2015) (finding it is necessary to submit an explanation of how the 

evidence creates clear evidence of error on its face).