United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

DEPARTMENT OF THE INTERIOR, OFFICE 

OF SURFACE MINING RECLAMATION & 

ENFORCEMENT, London, KY, Employer

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Docket No. 17-1942

Issued: August 23, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 14, 2017 appellant filed a timely appeal from a July 26, 2017 nonmerit 

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

elapsed from the last merit decision dated March 24, 2015, 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 request for reconsideration, 

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

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 24, 2014 appellant, a 62-year-old surface mining reclamation specialist, filed 

an occupational disease claim (Form CA-2) alleging that her bipolar disorder was aggravated when 

she was denied an assignment beyond the scope of her daily duties when a similarly situated 

employee was allowed an extra assignment outside the scope of his normal duties. She indicated 

that she first became aware of her claimed condition on “January 1, 1970” and first realized its 

relation to her federal employment on August 30, 2013. Appellant did not stop work. 

In a September 20, 2013 narrative statement, appellant further alleged harassment and 

discrimination in her workplace. She stated that, from the Fall of 2011 until the selection of a 

supervisor position in August 2012, there was so much ill-will toward her from her superiors and 

some of her colleagues that she started to become depressed, despite taking her regularly 

prescribed psychiatric medications. After a lengthy investigation, the selection for the supervisor’s 

position was finally made and the most qualified person was appointed, appellant had no issue 

with the selection thereof. At that time, appellant stated that she was forced to change job duties 

from those she had performed for the past 26 years and had no one to help train her. She alleged 

that this change in job duties resulted in an aggravation of her bipolar disorder and many days of 

missed work and assignments. 

On December 6, 2013 Dr. Getulio V. Tovar, a Board-certified psychiatrist, diagnosed 

bipolar disorder. He noted that in 2011 appellant’s supervisor retired and appellant was told by 

the office that neither she nor her husband would be supervisors because they could not supervise 

each other. Appellant filed a complaint and eventually her husband was appointed supervisor, and 

as a result, her supervisor became someone else in the office. Since that time, she reported that 

she had been passed up for special assignments and felt very stressed at work. Appellant felt that 

her work had exacerbated her bipolar disorder. 

Appellant submitted a March 26, 2014 letter of partial acceptance of her Equal 

Employment Opportunity (EEO) complaint of discrimination against the employing 

establishment. It stated that her allegation of sexual harassment in 2012 had not been accepted for 

investigation. 

By decision dated July 10, 2014, OWCP denied appellant’s claim, finding that the evidence 

of record failed to establish that she actually experienced the employment factor(s) alleged to have 

caused her injury. 

On July 27, 2014 appellant requested an oral hearing by a representative of the Branch of 

Hearings and Review. 

A telephonic hearing was held before an OWCP hearing representative on 

February 9, 2015. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. 

By decision dated March 24, 2015, OWCP’s hearing representative affirmed the July 10, 

2014 decision, finding that appellant had failed to establish any compensable employment factors. 
3

On July 17, 2017 appellant requested reconsideration and submitted a July 3, 2017 

narrative statement reiterating her allegations that her emotional condition was aggravated by

harassment and discrimination at work. 

Appellant subsequently submitted a copy of an EEO bench decision dated June 13, 2017 

which found that the employing establishment failed to provide her with an effective reasonable 

accommodation to continue performing the essential functions of her job and allow her to enjoy 

the equal benefits and privileges of employment. 

By decision dated July 26, 2017, OWCP denied appellant’s request for reconsideration, 

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

LEGAL PRECEDENT

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

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.3 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.4 

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).5 OWCP will consider an untimely request for reconsideration only if the request 

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

6

 The 

request must establish on its face that such decision was erroneous.7 Where a request is untimely 

and fails to demonstrate clear evidence of error, OWCP will deny the request for reconsideration 

without reopening the case for a review on the merits.8

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.9 It is not enough merely to show that the evidence 

 

2 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).

3 20 C.F.R. § 10.607.

4

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). 

5

Id. at Chapter 2.1602.4b.

6 20 C.F.R. § 10.607(b).

7

Id.

8

Id. at § 10.608(b).

9 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).
4

could be construed so as to produce a contrary conclusion.10 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.11 

The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP such that it abused its discretion in denying merit 

review in the face of such evidence.12

ANALYSIS

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

untimely filed and failed to demonstrate clear evidence of error. 

OWCP’s regulations13 establish a one-year time limit for requesting reconsideration, which 

begins on the date of the original OWCP merit decision. Timeliness is determined by the received 

date as recorded in iFECS.14 The most recent merit decision was OWCP’s March 24, 2015 

decision. Appellant had one year from the date of that decision to make a timely request for 

reconsideration. As appellant’s July 17, 2017 request for reconsideration was received more than 

one year after the March 24, 2015 merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in the denial of her claim.15

The Board finds that the evidence submitted by appellant in support of her request for 

reconsideration does not raise a substantial question as to the correctness of OWCP’s March 24, 

2015 merit decision or shift the weight of the evidence of record in her favor.

The term clear evidence of error is intended to represent a difficult standard.16 Even a 

detailed, well-rationalized medical report which would have created a conflict in medical opinion 

requiring further development if submitted prior to issuance of the denial decision, does not 

constitute clear evidence of error.17 It is not enough to show that evidence could be construed so 

 

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

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

12 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

13 Id. at § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

14 Supra note 4 at Chapter 2.1602.4 (January 2004); see C.B., Docket No. 13-1732 (issued January 28, 2014).

15 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16 Supra note 4 at Chapter 2.1602.5 (October 2011); see Dean D. Beets, supra note 6.

17 See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).
5

as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s 

favor.18

In support of her reconsideration request, appellant submitted a July 3, 2017 narrative 

statement reiterating her allegations that her emotional condition was aggravated by harassment 

and discrimination at work accompanied by a copy of an EEO bench decision dated June 13, 2017 

which found that the employing establishment failed to provide her with an effective reasonable 

accommodation. The new evidence does not show error with respect to OWCP’s March 24, 2015 

merit decision, which found that the employment exposure(s) did not occur as alleged. Appellant 

has not explained how the submission of this evidence raises a substantial question concerning the 

correctness of OWCP’s decision. Her claim was denied because she failed to establish any 

compensable employment factors.19 The narrative statement is repetitive of evidence previously 

of record and does not show error with respect to the March 24, 2015 decision.

20

 The Board has 

held that repetitive or cumulative evidence is insufficient to shift the weight of the evidence in 

favor of the claimant.21 Additionally, the Board has long held that grievances and EEO complaints 

by themselves do not establish that workplace harassment or unfair treatment occurred.22 The 

evidence submitted does not support appellant’s allegations of harassment or discrimination on the 

part of her supervisors or coworkers. Therefore, this evidence does not, on its face, show that 

OWCP erred when it denied her emotional condition claim.23

The Board finds that the evidence appellant submitted on reconsideration is insufficient to 

prima facie shift the weight of the evidence in favor of her claim or raise a substantial question 

that OWCP erred in its March 24, 2015 decision. Thus, OWCP properly denied her request for 

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

CONCLUSION

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

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

 

18 See M.N., Docket No. 15-0758 (issued July 6, 2015).

19 See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992) (finding that when a claimant has not established any 

compensable employment factors, it is not necessary for OWCP to consider the medical evidence of record).

20 See L.M., Docket No. 14-1738 (issued March 3, 2015) (where the claimant resubmitted medical reports 

previously of record, the Board found that the evidence was duplicative and failed to establish clear evidence of error).

21 See D.E., 59 ECAB 438 (2008); A.F., Docket No. 11-1297 (issued December 20, 2011).

22 See Parley A. Clement, 48 ECAB 302 (1997).

23 See J.E., Docket No. 15-0131 (issued September 9, 2015).
6

ORDER

IT IS HEREBY ORDERED THAT the July 26, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 23, 2018

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