United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.B., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Morgantown, WV, 

Employer 

__________________________________________ 

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Docket No. 16-0746 

Issued: June 1, 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 March 7, 2016 appellant filed a timely appeal from a February 24, 2016 nonmerit 

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

has elapsed from OWCP’s last merit decision dated December 14, 2009 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 over the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s December 21, 2015 request for 

reconsideration without merit review of the claim, pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

This case has previously been before the Board.2

 Appellant, a 72-year-old cook foreman, 

last worked for the employing establishment in 1978. On November 20, 2008 he filed an 

 1

 5 U.S.C. § 8101 et seq.

2 See infra notes 5 and 6. 
2

occupational disease claim (Form CA-2) for post-traumatic stress disorder (PTSD), which he 

attributed to his constructive termination in August 1978.3 Appellant served on active duty with 

the U.S. Army for approximately eight and one-half years, ending in February 1976. Based on 

Department of Veterans Affairs (DVA) medical records, he was diagnosed with delayed onset 

PTSD in July 1997. Appellant received benefits from DVA for his service-connected PTSD.4

 

With respect to his November 20, 2008 claim for FECA benefits, he indicated that he first 

became aware of the employment-related nature of his PTSD on February 15, 2004. Appellant 

claimed to have promptly notified the employing establishment of his condition. 

In a July 10, 2009 decision, OWCP denied appellant’s claim as untimely filed. The 

record established that, on or about July 7, 2004, appellant was either aware or should have been 

aware that his claimed condition was employment related. However, he waited more than four 

years (November 20, 2008) before filing his occupational disease claim. As such, appellant 

failed to meet the three-year filing requirement under 5 U.S.C. § 8122. 

Appellant requested a hearing before an OWCP hearing representative. By decision 

dated December 14, 2009, the hearing representative affirmed OWCP’s July 10, 2009 decision. 

Appellant appealed to the Board. On November 22, 2010 the Board affirmed the hearing 

representative’s decision.5

 

Appellant subsequently filed multiple requests for reconsideration. OWCP denied 

reconsideration on January 5, 2011, July 12, 2013, and most recently on February 24, 2016.6

 Its 

latest nonmerit decision followed appellant’s December 21, 2015 request for reconsideration, 

which OWCP received on January 5, 2016. 

 3

 Between July 1976 and August 1978, appellant worked approximately 18 months at the Robert F. Kennedy 

Youth Center, Federal Correctional Institution (FCI), Morgantown, WV. He resigned effective August 18, 1978. 

However, appellant claimed the employing establishment forced him to quit. 

4

 As of August 12, 1997, DVA rated appellant 50 percent disabled due to his service-connected PTSD. Appellant 

also received disability benefits from the Social Security Administration for anxiety disorders. 

5

 Docket No. 10-0673 (issued November 22, 2010). The Board also issued a June 10, 2011 order denying 

appellant’s petition for reconsideration. Docket No. 10-0673, Order Denying Petition for Reconsideration (issued 

June 10, 2011). The November 22, 2010 decision and June 10, 2011 order are incorporated herein by reference. 

6

 With respect to OWCP’s January 5, 2011 nonmerit decision, appellant filed an untimely appeal, which the 

Board dismissed by order dated January 25, 2012. Docket No. 12-0004, Order Dismissing Appeal (issued 

January 25, 2012). Appellant also appealed OWCP’s July 12, 2013 nonmerit decision, which the Board affirmed by 

decision dated May 14, 2014. Docket No. 14-0141 (issued May 14, 2014). His subsequent petition for 

reconsideration was untimely, and accordingly, the Board issued an order dismissing the petition. Docket No. 14-

0141, Order Dismissing Petition for Reconsideration (issued March 12, 2015). Appellant also wrote to the Board 

on January 26, 2015. The Board considered his January 26, 2015 correspondence as a new appeal, which it assigned 

Docket No. 15-0766. By order dated May 11, 2015, the Board dismissed the appeal for lack of jurisdiction. Docket 

No. 15-0766, Order Dismissing Appeal (issued May 11, 2015). The then-current record revealed that OWCP had 

not issued a final adverse decision following the Board’s May 14, 2014 decision. Appellant filed a petition for 

reconsideration of the Board’s May 11, 2015 order, which the Board dismissed by order dated October 5, 2015. 

Docket No. 15-0766, Order Dismissing Petition for Reconsideration (issued October 5, 2015). The Board reiterated 

that OWCP had not issued a final decision following the Board’s May 14, 2014 decision, and therefore, the Board 

lacked jurisdiction over the case. The above-mentioned Board decision and orders are incorporated herein by 

reference. 
3

In his request for reconsideration, appellant argued that he informed the employing 

establishment about his injury in February 2004 and again in July 2004, but that it failed to report 

the information to OWCP. He also alleged that the employing establishment told him to file an 

Equal Employment Opportunity (EEO) complaint, but neglected to inform him that he needed to 

file a separate FECA claim for his PTSD. Appellant reportedly attached some EEO-related 

documents to his December 21, 2015 request for reconsideration, but the record does not reflect 

OWCP having received any additional information at that time. 

OWCP subsequently received a January 10, 2016 letter from appellant directed to the 

U.S. Secretary of Labor. Appellant’s January 10, 2016 correspondence reiterated that he 

reported the injury to the employing establishment in July 2004, but the employing establishment 

neglected to inform OWCP. He also wrote to OWCP on January 17, 2016 raising the same 

argument. Additionally, appellant provided OWCP an annotated copy of two FECA statutory 

provisions (5 U.S.C. §§ 8120 and 8122), which described the employing establishment’s 

responsibility for reporting an injury to DOL and the timeframe for making a claim under FECA. 

By decision dated February 24, 2016, OWCP denied appellant’s request for 

reconsideration and declined to review the merits of his case. It found that the evidence of 

record did not support that it had erroneously applied or interpreted a point of law. OWCP also 

found that the evidence did not contain a new legal argument not previously considered. Lastly, 

it indicated that the evidence was cumulative, and thus, substantially similar to evidence or 

documentation already contained in the case record and previously considered. Consequently, 

OWCP denied reconsideration because the evidence presented was “[insufficient] to warrant 

review of the decision dated [May 11, 2015].” 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.7 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.8 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.9

 OWCP will consider an untimely request for reconsideration only if the request 

 7

 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a). 

8

 20 C.F.R. § 10.607 (2014). 

9 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt 

date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ 

Compensation System (iFECS). Id. at Chapter 2.1602.4b. For decisions issued on or after June 1, 1987 through 

August 28, 2011, the request for reconsideration must be “mailed” to OWCP within one year of OWCP’s decision 

for which review is sought. Id. at Chapter 2.1602.4e. 
4

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit 

decision.”10 The request must establish, on its face, that such decision was erroneous.11 Where a 

request is untimely and fails to present any clear evidence of error, OWCP will deny the request 

for reconsideration without reopening the case for a review on the merits.12

When a request is timely filed, a different standard of review applies. A timely 

application for reconsideration, including all supporting documents, must set forth arguments 

and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a 

specific point of law; (ii) advances a relevant legal argument not previously considered by 

OWCP; or (iii) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.13 When a timely application for reconsideration does not meet at least one of the abovenoted requirements, OWCP will deny the request for reconsideration without reopening the case 

for a review on the merits.14

ANALYSIS 

The Board finds that the case is not in posture for decision. The issue on reconsideration 

is whether appellant timely filed his November 20, 2008 occupational disease claim. OWCP 

erroneously noted that the decision under review was the Board’s May 11, 2015 order, which 

dismissed appellant’s January 26, 2015 appeal for lack of jurisdiction. First, OWCP is not 

authorized to review Board decisions.15 Second, the Board’s May 11, 2015 order did not address 

the issue of whether appellant’s November 20, 2008 claim was timely under 5 U.S.C. § 8122. 

The last OWCP merit decision to address that particular issue was the OWCP hearing 

representative’s December 14, 2009 decision. 

Appellant’s December 21, 2015 request for reconsideration is untimely because more 

than one year has elapsed since the last OWCP merit decision issued on December 14, 2009.16 

Because OWCP mistakenly believed the request was timely, it applied the wrong standard in 

determining whether further merit review was warranted under 20 C.F.R. § 10.608. Although 

the February 24, 2016 decision did not specifically reference 20 C.F.R. § 10.606(b)(3), it is 

 10 20 C.F.R. § 10.607(b). 

11 Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided 

by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise and explicit and it 

must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not 

enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does 

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

evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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. Thankamma Mathews, 44 ECAB 765, 770 (1993). 

12 20 C.F.R. § 10.608(b). 

13 Id. at § 10.606(b)(3). 

14 Id. at § 10.608(a), (b). 

15 Id. at § 501.6(d). 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016). 
5

evident from OWCP’s analysis that it did not apply the appropriate “clear evidence of error” 

standard under 20 C.F.R. § 10.607(b).17 Accordingly, the case must be remanded to OWCP for 

proper adjudication of appellant’s untimely request for reconsideration. 

CONCLUSION 

The case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the February 24, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: June 1, 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 

 17 As previously noted, OWCP found that the evidence did not support that it had erroneously applied or 

interpreted a point of law. It also found that the evidence did not contain a new legal argument not previously 

considered. Finally, OWCP indicated that the evidence was substantially similar to evidence or documentation 

already contained in the case record and previously considered. The Board notes that this analysis mirrors the 

provisions of 20 C.F.R. § 10.606(b)(3)(i), (ii), and (iii).