United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, AIR 

UNIVERSITY, MAXWELL AIR FORCE BASE, 

AL, Employer 

__________________________________________ 

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Docket No. 15-681 

Issued: June 17, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 10, 2015 appellant filed an application for review of a January 23, 2015 

nonmerit decision by the Office of Workers’ Compensation Programs (OWCP). Because more 

than 180 days elapsed from August 15, 1990, the date of the most recent merit decision, to the 

filing of this appeal, and 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. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for further 

review of the merits as it was untimely filed and failed to show clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 14, 1990 appellant, then a 32-year-old clerk typist, filed an occupational disease 

claim (Form CA-2) alleging that on February 28, 1990, she realized that she sustained an anxiety 

disorder as a result of factors of her federal employment. 

By decision dated August 15, 1990, OWCP denied appellant’s claim for compensation. 

It noted that appellant had claimed that her condition had been caused by harassment from her 

supervisor as a result of a proposed removal action. The proposed removal action was initiated 

by the employing establishment, was based on excessive use of leave, which was changed to a 

60-day suspension on appeal. OWCP found that personnel matters are not compensable factors 

of employment in regard to the acceptance of a claim for benefits. 

By letter dated October 20, 2014, appellant requested reconsideration of her claim. She 

stated that the hostile work environment of the employing establishment contributed to her 

illness and that the damage done was irreparable. Appellant noted that she should have returned 

to work after a 60-day suspension, and that after 2 months, they “lured [her] back with deception 

by stating that [she] would be returning to [her] same position,” but that the position was not 

actually the same one. With her reconsideration request, she submitted several forms and 

documents relating to the proposed removal action initiated by the employing establishment. 

By decision dated January 23, 2015, OWCP declined appellant’s request for 

reconsideration. It found that her request was not timely filed and failed to present 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 its 

decision for which review is sought.2 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.3

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 establishes clear evidence of error.4

 2

 20 C.F.R. § 10.607(a). 

3

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

4 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 
3

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 shows clear evidence of error on the part of OWCP.5

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

which was decided by OWCP.6 The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error.7 Evidence which does not raise a 

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

clear evidence of error.8

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

as to produce a contrary conclusion.9

 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.10

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

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.11 In order to establish 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 shift the weight of 

the evidence in favor of the claimant and raise a substantial question as to the correctness of 

OWCP’s decision.12 

ANALYSIS 

In its January 23, 2015 decision, OWCP determined that appellant failed to file a timely 

application for review. The one-year time period for requesting reconsideration of an OWCP 

decision begins on the date of that original decision.13 Appellant’s request for reconsideration 

was filed on October 20, 2014, over 24 years after OWCP’s August 15, 1990 decision. 

Therefore, she must show clear evidence of error on the part of OWCP in issuing this decision. 

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

(October 2011). OWCP’s procedure manual 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 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

7

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

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

9 See Leona N. Travis, supra note 7. 

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

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

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

13 20 C.F.R. § 10.607(a). 
4

Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing 

its August 15, 1990 decision. She did not submit the required positive, precise, and explicit 

evidence which shows on its face that OWCP committed an error. 

Appellant’s request for reconsideration, submitted along with documents related to her 

proposed removal action from the employing establishment that was later modified into a 60-day 

suspension, merely restated the arguments of her original claim and gave a history of her 

condition. The basis for the rejection of her original claim was that the claimed factors of 

employment did not occur in the performance of her duty. 

The evidence submitted on reconsideration deals with an administrative action dealing 

with a personnel matter related to excessive use of leave. This evidence does not establish clear 

error. Appellant also alleged harassment, but provided only records of the administrative action 

related to her dispute with the employing establishment. These documents, in themselves, are 

not the type of probative and reliable evidence sufficient to shift the weight of the evidence in 

favor of the claimant and raise a substantial question as to the correctness of OWCP’s August 15, 

1990 decision. 

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

question concerning the correctness of OWCP’s August 15, 1990 decision, and OWCP properly 

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

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim as her request was untimely filed and failed to demonstrate 

clear evidence of error. 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board