United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.W., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Houston, TX, Employer 

__________________________________________ 

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Docket No. 16-1344 

Issued: November 2, 2016 

Appearances: Case Submitted on the Record

Cruz Cordova, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 14, 2016 appellant, through her representative, filed a timely appeal from a 

March 23, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from July 8, 2014 the date of the most recent OWCP merit 

decision to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of 

appellant’s claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
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. 

FACTUAL HISTORY 

 On July 11, 2013 appellant, then a 48-year-old material handler, filed a traumatic injury 

claim (Form CA-1). She alleged that on June 24, 2013 while supervising the transport of 

merchandise from the warehouse, a worker sprayed pesticide which caused her to have an 

asthma attack from a restricted airway, difficulty breathing, and elevated blood pressure due to 

toxic fumes. Appellant’s supervisor noted that an investigation revealed that there was no 

spraying or fogging being conducted in the area as alleged. Appellant stopped work on the date 

of injury and returned to work on June 28, 2013. 

In a June 24, 2013 diagnostic report, Dr. Susan Pinero, a Board-certified diagnostic 

radiologist, advised that an x-ray of the chest revealed unremarkable soft tissue and 

cardiomediastinal silhouette and clear lungs bilaterally. A June 24, 2013 emergency department 

report was also submitted. 

By letter dated April 8, 2014, OWCP advised appellant of the type of evidence needed to 

establish her claim and afforded her 30 days to reply. On April 8, 2014 it also requested that the 

employing establishment provide additional information regarding appellant’s claim, including 

any comments from a knowledgeable supervisor on the accuracy of the statements provided by 

appellant regarding the claimed injury. 

In a May 5, 2014 letter, the employing establishment advised that it did not concur with 

appellant’s allegations. It contended that there were no pesticides used in the claimed area on the 

date in question. The employing establishment indicated that the department responsible for 

using pesticides did not have any record of her work area being treated on that date. It noted that 

the product appellant claimed was sprayed was “Best Yet” which is an organic based product 

made from cedar oil. The employing establishment provided a position description for a material 

handler as well as a material data sheet for a product named “Best Yet.” 

By decision dated July 8, 2014, OWCP denied appellant’s claim. It found that appellant 

failed to establish the factual component of fact of injury, as the evidence of record was 

insufficient to establish that the events occurred as described. 

On October 20, 2015 appellant returned OWCP’s questionnaire. She noted that she was 

not exposed to any irritants or chemicals in her home or outside of her federal employment. 

Appellant advised that she was diagnosed with asthma in middle school and noted that she was 

not a smoker. 

Appellant submitted additional evidence that was also received on October 20, 2015. In a 

June 24, 2013 statement, Donald Henry, a cook supervisor at the employing establishment, 

advised that on June 24, 2013, during the morning hours, he entered the warehouse area to 
3

retrieve needed items from the freezer when he smelled an odor with a cedar-type chemical in 

the air. 

In a June 25, 2013 statement, Douglas G. Martin, a material handler supervisor at the 

employing establishment, advised that on June 25, 2013, while working his assigned post in the 

warehouse, he noticed a spray bottle near the recycling area which contained a liquid substance. 

He indicated that he picked up the bottle and noticed that it had a cedar odor. 

In an October 15, 2015 report, Dr. Lyndall Harrison, Board-certified in allergy and 

immunology, advised that appellant had been under his care for several years for asthma. He 

noted that on June 24, 2013 appellant related that she was exposed at her job to a pesticide 

containing cedar oil that was supposed to only be used outdoors. Dr. Harrison noted that within 

a few minutes she developed acute tightness in her chest and dyspnea when she smelled the 

product. He noted that the symptoms became so severe that she required care at the emergency 

room. Dr. Harrison indicated that appellant had a long history of asthma triggered by 

environmental factors and opined that it was very probable that such exposure to a pesticide 

caused her to develop acute asthma symptoms as she described. 

By letter dated October 20, 2015, received by OWCP on October 26, 2015, appellant 

requested reconsideration. In a December 7, 2015 letter, received on December 17, 2015, she 

again requested reconsideration. 

By decision dated March 23, 2016, OWCP denied appellant’s request for reconsideration 

as untimely filed and failing to demonstrate clear evidence of error. 

On appeal appellant’s representative contends that the employing establishment falsely 

claimed on the (Form CA-1) that “an investigation revealed that there was no fogging operation 

being conducted in the area.” He argues that this false information casts doubt on OWCP’s 

finding that there was no clear “fact of injury.” Appellant’s representative notes that the 

employing establishment was unable to produce any investigative report and informed him that 

“there is no documentation regarding an injury investigation.” He requests that OWCP either 

produce the investigative report that they utilized to deny the claim or accept the claim. 

LEGAL PRECEDENT 

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

claimant must file his or her application for review within one year of the date of that decision.3

 

The Board has found that the imposition of the one-year time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4

 

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. When an application for review is untimely filed, it must nevertheless 

undertake a limited review to determine whether the application demonstrates clear evidence of 

 3

 20 C.F.R. § 10.607(a). 

4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
4

error.5 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if 

the claimant’s application for review demonstrates clear evidence of error on the part of OWCP.6

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

issue which was decided by OWCP.7 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.8 Evidence which does not raise a 

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

demonstrate clear evidence of error.9

 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.10 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 demonstrates clear error on the part of OWCP.11 

ANALYSIS 

In its March 23, 2016 decision, OWCP properly determined that appellant filed an 

untimely request for reconsideration. Appellant’s reconsideration request dated October 20, 

2015, was not received by OWCP until October 26, 2015. Because appellant’s reconsideration 

request was not received within one year of the July 8, 2014 merit decision, appellant must 

demonstrate clear evidence of error by OWCP.12 

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

OWCP in the denial of her traumatic injury claim. The evidence submitted by appellant did not 

raise a substantial question concerning the correctness of OWCP’s decision. 

In support of her reconsideration request, appellant submitted additional evidence. In a 

June 24, 2013 statement, appellant’s coworker advised that on June 24, 2013 during the morning 

hours he entered the warehouse area to retrieve needed items from the freezer when he smelled 

an odor with a cedar-type chemical in the air. In another June 25, 2013 statement, appellant’s 

 5 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

6 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) 

(October 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP made an error. 

Evidence such as a detailed, well-rationalized medical report which, if submitted before the denial was issued, 

would have created a conflict in medical opinion requiring further development, is not clear evidence of error. 

7 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

8 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

9 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

10 See supra note 7. 

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

12 See 20 C.F.R. § 607(a) (an application for reconsideration must be received by OWCP within one year of the 

date of OWCP’s decision for which review is sought). 
5

coworker advised that on June 25, 2013 while working his assigned post in the warehouse, he 

noticed a spray bottle near the recycling area, which contained a liquid substance. He indicated 

that he picked up the bottle and noticed a cedar-type odor. In an October 20, 2015 response to an 

OWCP questionnaire, appellant noted that she was not exposed to any irritants or chemicals in 

her home or outside of her federal employment. She advised that she was diagnosed with asthma 

in middle school and noted that she was not a smoker. Although these factual statements are 

supportive of the claim, they do not raise a substantial question as to the correctness of OWCP’s 

July 8, 2014 decision. The term “clear evidence of error” is intended to represent a difficult 

standard. The claimant must present evidence which on its face shows that OWCP made an 

error (for example, proof of a miscalculation in a schedule award). Evidence such as a detailed, 

well-rationalized report, which if submitted prior to OWCP’s denial, would have created a 

conflict in medical opinion requiring further development, is not clear evidence of error and 

would not require a review of a case.13 As explained, it is not enough merely to show that the 

evidence could be construed so as to produce a contrary conclusion.14

In his October 15, 2015 report, Dr. Harrison advised that appellant had been under his 

care for several years for asthma. He noted that on June 24, 2013 appellant related that she was 

exposed at her job to a pesticide containing cedar oil that was only supposed to be used outdoors. 

Dr. Harrison opined that it was probable that such pesticide exposure caused her to develop acute 

asthma symptoms. Although his report provides some support for causal relationship, it does not 

raise a substantial question as to the correctness of OWCP’s determination that appellant did not 

establish the factual component of fact of injury. The Board has held that clear evidence of error 

is not established if appellant’s new evidence does not address the issue upon which OWCP 

originally denied the claim.15

On appeal appellant’s representative contends that the employing establishment falsely 

claimed on the (Form CA-1) that “an investigation revealed that there was no fogging operation 

being conducted in the area.” He argues that this false information casts doubt on OWCP’s 

finding that there was no clear “fact of injury.” Appellant’s representative notes that the 

employing establishment was unable to produce any investigative report and informed him that 

“there is no documentation regarding an injury investigation.” He requests that OWCP either 

produce the investigative report that it utilized to deny the claim or accept the claim. However, 

as noted, the Board does not have jurisdiction over the merits of the claim. Furthermore, the 

allegation that the employing establishment falsely claimed to have conducted an investigation 

does not raise a substantial question as to the correctness of OWCP’s decision. 

Consequently, appellant has not established clear evidence of error on the part of OWCP. 

The Board, therefore, finds that, in accordance with OWCP’s internal guidelines and Board 

precedent, OWCP properly denied appellant’s request for reconsideration as it was untimely 

filed and failed to demonstrate clear evidence of error. 

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

14 See supra note 7. 

15 See supra note 6. 
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CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration as it 

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

ORDER 

IT IS HEREBY ORDERED THAT the March 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board