United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.Y., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Honolulu, HI, Employer 

__________________________________________ 

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Docket No. 16-1301 

Issued: December 15, 2016 

Appearances: Case Submitted on the Record

Elbridge Smith, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 25, 20162

 appellant, through counsel, filed a timely appeal of a November 27, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed since the last merit decision on August 28, 2014, to the filing of this 

 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

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from November 27, 2015, the date of OWCP’s last decision, is May 

25, 2016. Since using June 6, 2016, the date the appeal was received by the Clerk of the Appellate Boards would 

result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is May 25, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

appeal, pursuant to the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.4

ISSUE 

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

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

FACTUAL HISTORY 

This case has previously been before the Board.5 The facts and circumstances of the case 

as presented in the prior appeal are incorporated herein by reference. The relevant facts are as 

follows. 

On April 21, 2011 appellant, then a 63-year-old health systems specialist, filed an 

occupational disease claim (Form CA-2) alleging stress and aggravation from a preexisting 

diabetes condition as a result of adverse working conditions. In a narrative statement, he alleged 

that commencing in August 2008 he had been stripped of all meaningful work assignments by 

his supervisors and given only limited and menial tasks to perform that were not commensurate 

with his position. Appellant also alleged that he had been prevented from having any meaningful 

interaction with coworkers, making him feel as if he were in solitary confinement. He also 

alleged that he had been placed in a noisy work area and the employing establishment had 

refused his requests for accommodation. Appellant stopped work as of November 23, 2010. 

In a November 16, 2011 letter, the employing establishment responded to an OWCP 

request for information. It controverted appellant’s allegations and submitted witness statements 

regarding various incidents involving appellant, who had a history of conflict with his coworkers 

and supervisors. The employing establishment asserted that it made a good faith effort to engage 

appellant in meaningful duties, but was unsuccessful due to appellant’s behavior and personality 

traits. 

By decision dated December 20, 2011, OWCP denied appellant’s claim for 

compensation. It found that he had not established any compensable work factors. 

Counsel requested reconsideration by letter dated December 12, 2012. He argued that 

appellant was reacting to requirements of his work: (1) that he remain on the premises without 

being assigned any work for most of the time; and (2) that he not interact or socialize with 

coworkers. 

In a decision dated April 8, 2013, OWCP denied appellant’s reconsideration request. It 

found that he did not meet the requirements for merit review of the claim. 

 3

 5 U.S.C. § 8101 et seq. 

4

 Appellant timely requested an oral argument before the Board. By order dated November 4, 2016, the Board 

exercised its discretion and denied the request, finding the issue presented could be addressed based on review of the 

case record. Order Denying Oral Argument, Docket No. 16-1301 (issued November 4, 2016). 

5

 Docket No. 14-0018 (issued June 24, 2014). 
3

Appellant appealed to the Board. On appeal the Board remanded the case for a merit 

review.6 The Board found that appellant had raised a new and relevant legal argument, and 

therefore was entitled to a merit review. 

By decision dated August 28, 2014, OWCP reviewed the merits and denied modification. 

It found the assignment and monitoring of work duties was an administrative function, and no 

evidence of error or abuse was established. As to requiring appellant not to interact with any 

other employee, OWCP found this was vague and not supported by the record. It indicated that 

the employing establishment had explained that limitations had been placed on appellant to 

minimize disruptions and this was a reasonable managerial action. 

On September 3, 2015 OWCP received an August 28, 2015 letter from appellant’s 

counsel requesting reconsideration. Counsel again argued that appellant was reacting to an 

actual assigned duty -- of doing little or no work. In addition, he argued that OWCP had 

improperly ignored medical evidence. Counsel indicated that he was submitting testimony from 

treating physicians and a social worker, as well as from a supervisor, Dr. Carethers. 

The evidence submitted on reconsideration consists of partial transcripts from a U.S. 

District Court case, with appellant as plaintiff and the employing establishment as defendant. 

The transcript records are dated May 5 to 7, and 11, 2015, and include testimony from 

physicians, psychologists, and a social worker regarding appellant’s treatment. The testimony 

from a Dr. Carethers indicated that appellant reported having no work was causing him stress, 

and after January 2013 appellant was assigned more complex work. 

By decision dated November 27, 2015, OWCP found the reconsideration request was 

untimely filed. It denied the reconsideration request without merit review, finding it did not 

demonstrate clear evidence of error by OWCP. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.7

 The 

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”8

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.9

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.10 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

 6 Id. 

7

 5 U.S.C. § 8128(a). 

8

 20 C.F.R. § 10.605 (2012). 

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

10 Under section 8128 of FECA, “[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.” 
4

§ 8128(a) of FECA.11 As one such limitation, 20 C.F.R. § 10.607 provides that an application 

for reconsideration must be received within one year of the date of OWCP’s decision for which 

review is sought.12 OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The 

evidence must be positive, precise, and explicit and must manifest on its face that OWCP 

committed an error.13 

To demonstrate 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.14 Evidence 

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

insufficient to demonstrate clear evidence of error.15 It is not enough merely to show that the 

evidence could be construed so as to produce a contrary conclusion.16 A determination of 

whether the claimant has demonstrated clear evidence of error entails a limited review of how 

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

record.17

ANALYSIS 

In the present case, the last decision on the merits was dated August 28, 2014. As noted 

above, a timely reconsideration request must be received by OWCP within one year of the merit 

decision. Timeliness is determined by the document receipt date of the reconsideration request 

(the received date in the Integrated Federal Employees Compensation System (iFECS).18 If the 

request for reconsideration has a document received date greater than one year, the request must 

be considered untimely.19 Although the reconsideration request was dated August 28, 2015, it 

was not received until September 3, 2015. It was therefore untimely with respect to the 

August 28, 2014 OWCP decision. 

As an untimely reconsideration request, appellant must demonstrate clear evidence of 

error by OWCP. The Board finds that the reconsideration request and the evidence do not 

demonstrate clear evidence of error in this case. 

 11 Supra note 3. 

12 20 C.F.R. § 10.607 (2012). 

13 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

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

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

16 Id. 

17 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

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

19 T.E., Docket No. 16-0574 (issued August 18, 2016). 
5

In the merit decision, OWCP found that appellant had not established compensable work 

factors. Appellant had alleged that he had an emotional condition from what he felt was a job 

requirement: that he perform little or no work. OWCP found that work assignments, and the 

monitoring and direction of such assignments, were administrative functions and no error or 

abuse was established. 

The reconsideration request does not demonstrate clear evidence of error by OWCP. On 

reconsideration appellant again argued that he felt there was a compensable work factor, but he 

did not clearly demonstrate evidence of error. OWCP found that he had reacted to administrative 

actions of the employing establishment, and correctly noted that such actions are compensable 

only if error or abuse is shown.20 

The nonmedical evidence submitted on reconsideration does not demonstrate clear 

evidence of error. 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 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.21 The brief portion of May 2015 

transcripts from a supervisor, Dr. Carethers, indicated only that appellant had reported he was 

feeling stressed from a lack of work. The transcripts from medical providers also do not 

demonstrate clear evidence of error. A medical issue is only presented once a compensable work 

factor is established.22

On appeal counsel again argues that appellant established a compensable work factor 

based on lack of work. As indicated above, it is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion.23 

Appellant’s reconsideration request was untimely filed and failed to demonstrate clear 

evidence of error by OWCP. OWCP properly declined to review the merits of the claim. 

CONCLUSION 

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

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

 20 The Board has found that an administrative or personnel matter may be a factor of employment where the 

evidence discloses error or abuse by the employing establishment. See Michael Thomas Plante, 44 ECAB 510 

(1993); Kathleen D. Walker, 42 ECAB 603 (1991). 

21 J.S., supra note 17; James R. Mirra, 56 ECAB 738 (2005); supra note 14. 

22 See Margaret S. Krzycki, 43 ECAB 496 (1992). 

23 Supra note 15. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 27, 2015 is affirmed. 

Issued: December 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board