United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.P., Appellant

(claiming as widow of F.M.)

and

DEPARTMENT OF THE ARMY, CORPS OF 

ENGINEERS, Walla Walla, WA, Employer

__________________________________________

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Docket No. 17-1708

Issued: February 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 1, 2017 appellant filed a timely appeal from a March 21, 2017 nonmerit 

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

elapsed from March 25, 2015, the date of the most recent merit decision, 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 appellant’s claim.2

ISSUE

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

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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted new evidence on appeal. The Board’s jurisdiction, however, is limited 

to reviewing the evidence that was before OWCP at the time it issued its final decision. Thus, the Board may not 

consider the new evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On August 9, 2012 appellant filed a claim for widow’s benefits (Form CA-5) due to the 

death of her husband (the employee) on April 21, 2011. She provided copies of a marriage 

license and a death certificate. With her claim, appellant submitted a narrative statement in 

which she alleged that the employee’s death from adenocarcinoma of the lung was related to 

asbestos exposure in the course of his employment as a supervisory geologist at the employing 

establishment from September 15, 1968 through March 3, 1995. 

In an asbestos assessment review dated January 13, 1991, an inspector at the employing 

establishment noted the presence of asbestos contamination in crawl spaces and attics. 

By report dated July 29, 2010, Dr. Brian E. Staley, an anatomic and clinical pathologist, 

reviewed the employee’s left lower lung biopsy which revealed well-differentiated 

adenocarcinoma.

In a report dated July 26, 2011, Dr. Alvin Schonfeld, an osteopath and Board-certified 

internist specializing in pulmonary medicine and occupational lung disease, reviewed the 

employee’s medical records and occupational history. He opined that, given the employee’s

exposure to asbestos in the workplace, within a reasonable degree of medical certainty, the 

employee had bilateral asbestosis causally related to asbestos exposure. Dr. Schonfeld further 

opined that the employee’s lung cancer and subsequent death were both causally related to 

asbestos exposure at work, in addition to history of smoking. He noted that the employee

smoked a pack a day for 30 years.

By letter dated February 13, 2013, OWCP requested information from the employing 

establishment related to the employee’s employment position, dates of exposure to asbestos, and 

any records of treatment at employing establishment medical facilities. On the same date it

advised appellant that further factual and medical evidence was necessary to establish her claim.

She was afforded 30 days to submit the additional evidence.

In a report dated March 28, 2011, Dr. Dan Grinstead, a Board-certified internist, 

diagnosed the employee with metastatic adenocarcinoma of the lung with metastases. He noted 

that the employee had been exposed to asbestos during his career and smoked 1 to 2 cigars per 

day until the year 2000.

On April 15, 2013 appellant responded to OWCP’s inquiries. She noted that the 

employee was first diagnosed with lung cancer on July 13, 2010. Regarding his smoking, 

appellant noted that he had begun smoking when he was about 32 years old and that he actually 

stopped smoking cigars in August 1997.

On October 1, 2013 OWCP forwarded the medical documentation of record to a district 

medical adviser (DMA) to determine whether it was more likely than not that the employee’s

adenocarcinoma was caused by exposure to asbestos in the course of his federal employment and 

whether it was more likely than not that the adenocarcinoma hastened or contributed to his death. 

In a report dated October 17, 2013, OWCP’s DMA, Dr. L. Weaver, a Board-certified 

pulmonologist and internist, reviewed medical records and indicated that, although the employee 
3

was exposed at very low levels and intermittently to asbestos for many years, there was no 

evidence for an asbestos-related disease or that such low-level potential exposure would cause, 

contribute to, or aggravate the adenocarcinoma of his lung. She confirmed that adenocarcinoma

of the lung directly caused the employee’s death.

On November 7, 2013 OWCP requested that Dr. Weaver review the January 13, 1991 

asbestos assessment review, in addition to reports on the decommissioning and demolition of the 

employee’s former workplace. It asked her to comment, after reviewing these reports, as to 

whether the asbestos assessment review was sufficient to alter her medical opinion.

By report dated November 26, 2013, Dr. Weaver responded that, while all the 

environmental reports indicated that there was a potential for minimal asbestos exposure in the 

workplace, the reports also indicated that the asbestos-containing material was intact, not friable, 

and in areas unlikely to be accessed such as the attic, crawlspaces, or under the rug, and it was 

therefore highly unlikely that the very minimal potential exposure caused, contributed to, or 

aggravated the employee’s adenocarcinoma of the lung. 

By decision dated February 12, 2014, OWCP denied appellant’s claim for compensation. 

Relying on Dr. Weaver’s report as the weight of medical evidence, it found that the evidence of 

record failed to establish that the employee’s death was causally related to factors of his federal 

employment.

On February 9, 2015 appellant requested reconsideration of OWCP’s February 12, 2014 

decision. With her request, she submitted articles regarding asbestos; an obituary for a geologist 

who worked on dams, levees, and waterways; and a diagnostic report from Dr. Richard 

Bernstein, a pulmonologist, dated July 27, 2010. Dr. Bernstein noted that parenchymal 

abnormalities consistent with pneumoconiosis in addition to large parenchymal opacities. 

In a narrative statement, appellant noted that asbestosis was a fibrotic lung disease and 

that this disease was also known as pneumoconiosis. She further argued that length and degree 

of exposure to asbestos was not necessarily relevant to the development of lung disease, and that 

the employee complained that his work area was “always dusty.” Appellant noted that exposure 

to asbestos significantly increased the risk of developing lung cancer.

On February 20, 2015 OWCP forwarded the evidence of record, including all evidence 

received on reconsideration, to Dr. Weaver to determine whether the employee’s exposure to 

asbestos more likely than not caused or contributed to his diagnosed adenocarcinoma, and 

whether the adenocarcinoma hastened or contributed to his death. It also forwarded a statement 

of accepted facts (SOAF) dated February 20, 2015 to her which noted that the employee worked 

as a supervisory geologist from 1968 through 1975. 

In a report dated March 5, 2015, Dr. Weaver reviewed the evidence submitted on 

reconsideration. She indicated that the March 10, 2015 SOAF misstated the employee’s tenure 

at the employing establishment. Based on a review of the medical evidence, however,

Dr. Weaver noted that Dr. Bernstein’s report was insufficient to find that the employee’s 

adenocarcinoma was causally related to asbestos exposure. 
4

On March 10, 2015 OWCP issued a corrected SOAF, noting that the employee worked as 

a supervisory geologist at the employing establishment from 1968 through 1995. On March 10, 

2015 it again forwarded the updated SOAF to Dr. Weaver and requested that she answer whether 

the correction altered her opinion. 

On March 24, 2015 Dr. Weaver responded, noting that the obituary of record was of a 

person unrelated to the employee, and as such it did not support the claim for benefits. She 

further responded that the corrected period of employment did not alter her opinion as set forth 

on March 5, 2015. Dr. Weaver noted that there was no job description for the employee in the 

case file.

By decision dated March 25, 2015, OWCP reviewed the merits of appellant’s claim and 

denied modification of its February 12, 2014 decision. It found that the report of Dr. Bernstein, 

while relevant to the claim, was insufficient to conclude that the employee’s death from 

adenocarcinoma was caused by exposure to asbestos in the course of his federal employment. 

OWCP noted that the weight of medical evidence remained with Dr. Weaver.

On March 22, 2016 OWCP received appellant’s March 17, 2016 request for

reconsideration of its March 25, 2015 decision. Appellant noted that she had attempted to secure 

the employee’s job description, but that she had been unable to secure one. She submitted a 

letter from the Office of Personnel Management (OPM) dated December 4, 2015 stating that it 

did not maintain a repository of position descriptions, as well as an e-mail from an OPM 

representative stating that record copies of position descriptions, including certain information,

were destroyed two years after the position was either abolished or the description was 

superseded. Appellant submitted a response to a Freedom of Information Act request, noting 

that no records could be located related to the employee’s position description. In addition, she

submitted a civilian performance plan dated January 29, 1992, in which it was noted that the 

employee would make visits to construction sites and project offices. OWCP also received an 

undated and unsigned document entitled “Justification for Special Act or Service Award,”

wherein it was noted that the employee had “accepted responsibility for other assignments, 

primarily the new mission for the asbestos inspection and abatement surveys for the entire 

Umatilla Depot Activity. In this assignment the employee would also provide for the inspection 

and removal of asbestos for the District projects. Appellant also submitted numerous general

articles related to asbestos, including articles from medical journals and articles related to use of 

asbestos in construction. She argued that these articles established that the employee was 

exposed to asbestos in the course of his employment, as he visited construction sites.

By decision dated April 11, 2016, OWCP declined to review the merits of appellant’s 

claim.3 It found that she had submitted no relevant arguments or evidence not previously 

considered in support of her claim. Specifically, OWCP found that appellant’s arguments 

regarding causation were both speculative and not from a physician; that the medical literature 

submitted to the record did not pertain to the employee’s specific circumstances; and that the 

other documents submitted did not contain specific workplace exposure data or how such 

exposure caused or contributed to the employee’s lung cancer.

 

3 This decision erroneously referenced a decision dated March 25, 2016. No decision with that date exists in this 

case file. The last merit decision of record was the decision dated March 25, 2015.
5

By letter dated March 2, 2017, received on March 17, 2017, appellant again requested 

reconsideration of OWCP’s March 25, 2015 decision. She noted the existence of a document 

from the National Cancer Institute which indicated that there was no safe level of asbestos 

exposure, and she related that the employee was regularly exposed to asbestos. Appellant further 

noted that she had hired a legal researcher who performed legal and medical research on her 

behalf. The legal researcher obtained records regarding asbestos abatement at a facility 

belonging to the employing establishment, Umatilla Depot; scope of work identification of 

asbestos abatement; records listing all sites that were part of the Defense Environmental 

Restoration Program (DERP); and a contract designating the employee as a Contract Officer’s 

Representative for Asbestos Abatement for Walla Walla dated July 28, 1989. Appellant noted 

that the employee had accepted responsibility at Umatilla Depot for inspection and removal of 

asbestos, and that due to the lack of an official job description, she had been forced to reconstruct 

duties of his employment from the available resources. She noted that she had obtained a 

document listing all project locations where her late husband had worked on asbestos abatement 

in Oregon, Washington, and Idaho. Appellant requested that OWCP allow her newly-submitted 

evidence to be reviewed by Dr. Weaver.

By decision dated March 21, 2017, OWCP denied appellant’s request for reconsideration. 

It found that her request was untimely filed and failed to demonstrate clear evidence of error.

LEGAL PRECEDENT

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

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.4 The Board has found that the imposition of the 

one-year limitation does not constitute an abuse of the discretionary authority granted OWCP 

under section 8128(a) of FECA.5

OWCP 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 error.6 

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.7

 

4 20 C.F.R. § 10.607(a).

5 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

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

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) 

(February 2016). OWCP’s procedure further provides, “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 a mistake. For 

example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing 

that the claimant had a dependent but the award was not paid at the augmented rate.”
6

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

issue which was decided by OWCP.8 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.9 Evidence which does not raise a 

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

demonstrate clear evidence of error.10 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.11 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.12

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.13 In order to demonstrate 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 prima 

facie 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

ANALYSIS

The Board finds that in its March 21, 2017 decision OWCP properly determined that 

appellant filed an untimely application for review. OWCP’s regulations provide that the oneyear time limitation period for requesting reconsideration begins on the date of the last merit 

decision. The last merit decision in this case was on March 25, 2015.15 Appellant’s request for 

reconsideration was received on March 17, 2017, which was over one year after the March 25, 

2015 decision. Therefore, she must demonstrate clear evidence of error with regard to the 

decision of March 25, 2015.

The Board further finds that appellant has failed to demonstrate clear evidence of error 

with regard to the decision of March 25, 2015. Appellant did not submit the type of positive, 

precise, and explicit evidence manifesting on its face that OWCP committed error in the denial 

of this claim.

 

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

9 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

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

11 See Leona N. Travis, supra note 9.

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

13 See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

14 See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

15 The Board finds that the erroneous reference to a decision dated March 25, 2016 in OWCP’s decision dated 

April 11, 2016 constituted harmless error. There is no decision dated March 25, 2016 of record. 
7

Appellant submitted a document from the National Cancer Institute which indicated that 

there was no safe level of asbestos exposure and she alleged that the employee was regularly 

exposed to asbestos. She also submitted various other general articles related to asbestos and 

exposure to asbestos. This evidence did not deal with the employee’s actual and particular 

exposure to asbestos.16 Therefore, this evidence does not constitute the type of positive, precise, 

and explicit evidence which manifests on its face that OWCP committed an error in its June 27, 

2013 decision.17

Appellant also submitted records regarding asbestos abatement at a facility belonging to 

the employing establishment, Umatilla Depot; scope of work identification of asbestos 

abatement; records containing all sites that were part of the DERP; a contract designating the 

employee as a Contract Officer’s Representative for Asbestos Abatement for Walla Walla dated 

July 28, 1989; and her own statement asserting that a document existed which listed all project 

locations where the employee had worked on asbestos abatement in Oregon, Washington, and 

Idaho. This evidence again did not manifest on its face that an error was committed in OWCP’s 

decision dated March 25, 2015. It is additional evidence establishing some existence of asbestos

at the employing establishment, but does not demonstrate clear evidence of error in the prior 

decision. The documents submitted on reconsideration were of insufficient probative value to 

shift the weight of the evidence in favor of appellant and raise a substantial question as to the 

correctness of the denial of her claim.18 The documents do not establish that reliance on

Dr. Weaver’s medical reports was in error at the time of the March 25, 2015 decision. As such, 

appellant has not submitted the type of positive, precise, and explicit evidence which would 

manifest on its face that OWCP committed error in its March 25, 2015 decision.19 The term 

clear evidence of error is intended to represent a difficult standard.20 Even a detailed, wellrationalized medical report, which would have created a conflict in medical opinion requiring 

further development if submitted prior to issuance of the denial decision, is insufficient to 

demonstrate clear evidence of error.21 It is not enough to show that evidence could be construed 

so as to produce a contrary conclusion.22 Instead, the evidence must shift the weight in 

appellant’s favor.23

 

16 See R.R., Docket No. 17-1132 (issued November 22, 2017); see also Roger G. Payne, 55 ECAB 535 (2004) 

(excerpts from publications have little probative value in resolving medical questions unless a physician shows the 

applicability of the general medical principles discussed in the articles to the specific factual situation in a case).

17 See E.C., Docket No. 17-1229 (issued December 13, 2017). 

18 See B.G., Docket No. 16-1239 (issued November 28, 2016). 

19 See K.W., Docket No. 15-1187 (issued August 19, 2015).

20 D.B., Docket No. 16-1405 (issued January 9, 2017).

21 Id.

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

23 Id.
8

For these reasons, the evidence and argument submitted by appellant does not raise a 

substantial question concerning the correctness of OWCP’s March 25, 2015 decision and OWCP 

properly determined that she did not demonstrate clear evidence of error in that decision.

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 21, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 23, 2018

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