United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.L., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

FACILITIES ENGINEERING COMMAND, 

Norfolk, VA, Employer

__________________________________________

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Docket No. 17-1108

Issued: October 16, 2017

Appearances: Case Submitted on the Record

Gregory Klein, Esq., 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 April 27, 2017 appellant, through counsel, filed a timely appeal from a November 10, 

2016 nonmerit decision of the Office of Workers’ Compensation Program (OWCP). As more 

than 180 days elapsed from OWCP’s last merit decision, dated October 15, 2015, 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 over the merits of the claim.3

 

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.

3 The record provided the Board includes evidence received after OWCP issued its November 10, 2016 decision. 

However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued 

its final decision. 20 C.F.R. § 501.2(c)(1).
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.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts as presented in the Board’s 

prior decision are incorporated herein by reference. The relevant facts pertaining to this appeal 

are as follows.

In January 1999, OWCP accepted that appellant, then a 45-year-old administrator, 

sustained the condition of multiple chemical sensitivities due to exposure to substances in the 

workplace, including Basidiospore, Penicillium, and Aspergillus strains of fungi/mold. 

In a March 3, 2011 decision,5the Board affirmed OWCP’s August 12, 2009 decision as 

modified to reflect that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective July 11, 2004, but that there was a conflict in the 

medical opinion evidence regarding continuing work-related residuals after July 11, 2004 which 

required remanding the case to OWCP for further development. The Board found that the 

April 23, 2004 report of Dr. Elizabeth Ann Raitz-Cowboy, a Board-certified pulmonary 

specialist serving as an OWCP referral physician, justified the termination of appellant’s 

wage-loss compensation and medical benefits effective July 11, 2004 because it contained a 

well-rationalized medical opinion finding that appellant’s work-related residuals had ceased.

6

 

However, the Board found that there was a conflict in the medical opinion evidence between the 

medical opinion of Dr. Raitz-Cowboy and that of Dr. Allan Lieberman, an attending Boardcertified occupational medicine physician.7

 The Board remanded the case to OWCP for referral 

of appellant to an impartial medical specialist for an examination and opinion regarding whether 

she continued to have residuals of the accepted multiple chemical sensitivities condition after 

July 11, 2004. The Board directed OWCP to issue an appropriate decision on her claim after 

carrying out this development. 

 

4 Docket No. 10-0328 (issued March 3, 2011).

5

Id.

6 The Board noted that Dr. Raitz-Cowboy indicated in her April 23, 2004 report that pulmonary function testing 

performed on appellant was within normal limits and that a chest x-ray was also within normal limits. Dr. RaitzCowboy did not see any signs of multiple chemical sensitivities or anything to support the diagnosis of toxic 

encephalopathy, noting that all heavy metal levels were negative. She indicated that there was one discussion of 

perhaps a mild restrictive disease on a set of breathing tests from October 2000, but noted that even these limited 

results were not reproduced in the more current test results. 

7

In reports dated November 9, 2004 and October 11, 2005, Dr. Lieberman indicated that specific testing with the 

individual molds identified in the environmental analyses of appellant’s workplace provoked many of the signs and 

symptoms complained about by appellant. He posited that the allergens that she was exposed to in the workplace 

were adequate to cause her to suffer from the accepted multiple chemical sensitivities condition after July 11, 2004. 
3

On remand, OWCP referred appellant to Dr. Kyle Enfield, a Board-certified internist, for 

an impartial medical examination and opinion regarding whether she had residuals of her 

accepted employment injury on or after July 11, 2004.8

In an October 11, 2013 report, Dr. Enfield provided an opinion that appellant had 

idiopathic environmental intolerance or multiple chemical sensitivities based on her symptom 

history and noted that there was a temporal relationship between her symptom history and work 

exposure. He noted, “However, I cannot establish causation,” and recommended that appellant 

be seen by a physician who was Board-certified in toxicology or occupational/environmental 

medicine. 

OWCP determined that, given the opinion expressed by Dr. Enfield in his October 11, 

2013 report, it was necessary to refer appellant to another impartial medical specialist.9 In 

August 2015, it referred her to Dr. Donald J. McGraw, a Board-certified occupational medicine 

physician, for an impartial medical examination and opinion regarding whether she had residuals 

of her accepted employment injury on or after July 11, 2004. 

In a September 15, 2015 report, Dr. McGraw discussed appellant’s factual and medical 

history and reported the findings of the examination he conducted on that date. He noted that she

was dermatologically intact with no erythema, edema, or any type of lesions, and that her chest 

was clear to auscultation. Dr. McGraw indicated that his medical interview and physical 

examination of appellant detected no objective clinical abnormalities of any type and advised

that her strong emotional convictions regarding her described clinical problems were not 

supported objectively by findings on clinical examination. He noted that, while appellant 

claimed allergies to a number of agents including sulfa, formaldehyde, molds, mildews, tobacco, 

smoke, fragrances, and perfume, there was no objective clinical evidence to support those 

allergies. Dr. McGraw noted that she did not use prophylactic anti-allergenic medication to 

block any type of allergic reaction. He discussed medical literature concerning multiple 

chemical sensitivities and recounted his own experiences evaluating patients who had been 

diagnosed with this condition by other physicians. Dr. McGraw discussed his inability to find 

objective evidence of multiple chemical sensitivities in these patients, noting that many of the 

offending agents identified with this condition, including Penicillium and Cladosporium 

fungi/mold, were ubiquitous in the environment. He indicated that he was unable to identify any 

disabling medical condition after July 11, 2004, which was in any way related to appellant’s 

accepted condition of multiple chemical sensitivities. Dr. McGraw indicated that he could not 

identify any objective clinical evidence to support physical limitations from work after 

July 11, 2004.

In an October 30, 2015 decision, OWCP determined that appellant was not entitled to 

further wage-loss compensation and medical benefits after the termination of such benefits 

 

8 Appellant’s appearance at the impartial medical examination with Dr. Enfield was delayed by appellant’s own 

request to not attend the examination until she had recovered from a nonwork-related broken right leg. 

9 Another delay occurred due to OWCP’s difficulty in finding an appropriate medical specialist whose office was 

close to appellant’s home. 
4

effective July 10, 2014.10 It found that the weight of the medical evidence regarding residuals of 

the accepted employment injury rested with the well-rationalized September 15, 2015 report of

Dr. McGraw. 

In a September 12, 2016 letter received on September 19, 2016, appellant noted that the 

appeal rights associated with an October 30, 2015 letter with an enclosed “Notice of Decision”

provided that a reconsideration request must be signed, dated, and received within one calendar 

year of the date of the decision. She asserted that the “Notice of Decision” had no date and 

requested that OWCP provide the date of the “Notice of Decision.”

11

In an October 25, 2016 letter received on November 1, 2016, counsel requested 

reconsideration of OWCP’s October 30, 2015 decision.12 He argued that Dr. McGraw’s previous 

court appearances and publications clearly establish that he was not an impartial medical 

examiner and instead was a professional witness who testified only on behalf of employing 

establishments or insurance companies against the interests of injured workers. Counsel noted 

that a search through the Lexis legal research service revealed that Dr. McGraw participated in 

litigation in 14 different cases, and that in each case he was hired by the employing 

establishment/insurance company and submitted an opinion which was favorable to the party that 

was paying his bill rather than the injured worker. He felt that these cases showed that

Dr. McGraw had a documented history of bias against injured workers. Counsel summarized

Dr. McGraw’s role in the 14 cases, which were heard in the U.S. District Court for the Western 

District of Pennsylvania or the Commonwealth Court of Pennsylvania, providing brief notations 

such as, “Dr. McGraw testified that the employee was not disabled,” “[employing establishment] 

requested that Dr. McGraw perform a fitness[-]for[-]duty evaluation,” and “[employing 

establishment] retains Dr. McGraw to testify that employee’s workplace injury did not cause him 

to die.”

13

In his October 25, 2016 letter, counsel also argued that further evidence of Dr. McGraw’s 

bias was provided by his article entitled “Multiple Chemical Sensitivities -- Modern Medical 

Conundrum or Old Story with a New Title?” which was published by the American College of 

 

10 OWCP actually indicated that it had terminated appellant’s wage-loss compensation and medical benefits 

effective January 12, 2004, but this was not an accurate description of the issue at hand because she had not received 

wage-loss compensation and medical benefits since January 10, 2004 and the Board, in its March 3, 2011 decision 

had affirmed OWCP’s termination of such benefits effective January 10, 2004. As noted below, after termination or 

modification of compensation benefits, clearly warranted on the basis of the evidence, the burden for reinstating 

compensation benefits shifts to appellant. See infra notes 23 through 25. Therefore, OWCP effectively found in its 

October 30, 2015 decision that appellant did not meet her burden of proof to establish entitlement to wage-loss 

compensation and medical benefits after January 10, 2014.

11 The record does not contain any response by OWCP to this letter. As discussed infra, appellant subsequently 

submitted the appeal request form that accompanied OWCP’s October 30, 2015 decision. The top portion of the 

appeal request form identified appellant, her OWCP file number, and noted the date of the decision as 

“October 30, 2015.”

12 The record also contains a form, signed on October 28, 2016 and received on November 1, 2016, in which 

appellant requested reconsideration of OWCP’s October 30, 2015 decision.

13 The record contains copies of the fourteen cases referenced by counsel. 
5

Occupational and Environmental Medicine. He asserted that, in this article, Dr. McGraw opined 

that “the parade of patients” diagnosed with multiple chemical sensitivities did not have such a 

condition and that the diagnosis of multiple chemical sensitivities constituted an unsubstantiated 

theory which fell under the category of “fringe medicine.” Counsel indicated that he was 

providing a copy of this article, but the article was not, in fact, submitted to the case record. He 

also discussed a May 26, 2016 report of Dr. Bettina Herbert, an attending Board-certified

physical medicine and rehabilitation physician, which he characterized as containing an opinion 

that appellant continued to suffer from work-related multiple chemical sensitivities causing 

disability from work. However, the record does not contain a copy of a May 26, 2016 report of

Dr. Herbert. 

In a November 10, 2016 decision, OWCP denied appellant’s request for reconsideration 

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

reconsideration request was untimely because it was received on November 1, 2016, a date more 

than one year after the issuance of its October 30, 2015 merit decision. OWCP found that the 

evidence appellant submitted in support of her untimely reconsideration request failed to 

demonstrate clear evidence of error in its October 30, 2015 decision. 

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an 

award for or against payment of compensation at any time on his or her own motion or on 

application. The Secretary, in accordance with the facts found on review, may end, decrease or 

increase the compensation awarded; or award compensation previously refused or 

discontinued.14

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.15 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

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

its most recent merit decision. To demonstrate clear evidence of error, a claimant must submit 

evidence relevant to the issue that was decided by OWCP. The evidence must be positive, 

precise, and explicit and must be manifest on its face that OWCP committed an error.16

 

14 5 U.S.C. § 8128(a).

15 20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested 

decision. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(February 2016). 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. Id. 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). Id. at Chapter 2.1602.4b.

16 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).
6

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.17 The Board 

notes that clear evidence of error is intended to represent a difficult standard.18 Evidence that 

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

insufficient to demonstrate clear evidence of error.19 It is not enough merely to establish that the 

evidence could be construed so as to produce a contrary conclusion.20 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.21 The Board makes an independent 

determination as to whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.22

Once OWCP has accepted a claim, it has the burden of justifying termination or 

modification of compensation benefits.23 OWCP may not terminate compensation without 

establishing that the disability ceased or that it was no longer related to the employment.24 After 

termination or modification of compensation benefits, clearly warranted on the basis of the 

evidence, the burden for reinstating compensation benefits shifts to appellant. In order to 

prevail, appellant must establish by the weight of the reliable, probative, and substantial evidence 

that he or she had an employment-related disability which continued after termination of 

compensation benefits.25 

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, 

the Secretary shall appoint a third physician who shall make an examination.”

26

 In situations 

where there exist opposing medical reports of virtually equal weight and rationale and the case is 

referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of 

 

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

18 R.K., Docket No. 16-0355 (issued June 27, 2016).

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

20 Id.

21 Id.

22 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

23 Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

24 Id.

25 Wentworth M. Murray, 7 ECAB 570, 572 (1955).

26 5 U.S.C. § 8123(a).
7

such specialist, if sufficiently well rationalized and based upon a proper factual background, must 

be given special weight.27

ANALYSIS

The Board finds that OWCP properly determined that appellant’s November 1, 2016 

request for reconsideration was untimely filed. For OWCP decisions issued on or after 

August 29, 2011, the date of the application for reconsideration is the received date as recorded 

in iFECS.28 The most recent merit decision was OWCP’s October 30, 2015 decision and 

appellant had one year from that date to timely file for reconsideration. The last day of the oneyear filing period fell on Sunday, October 30, 2016. Therefore, appellant had until Monday, 

October 31, 2016 to timely request reconsideration.29 Because her request was not received by 

OWCP until November 1, 2016, it was untimely filed. Consequently, appellant must 

demonstrate clear evidence of error by OWCP with respect to its October 30, 2015 decision.30

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

part of OWCP in issuing its October 30, 2015 decision. Appellant did not submit the type of 

positive, precise, and explicit evidence which manifests on its face that OWCP committed an 

error in its October 30, 2015 decision.31 In support of the reconsideration request, counsel 

submitted an October 25, 2016 letter in which he presented various arguments on behalf of 

appellant. He argued that Dr. McGraw’s previous court appearances and publications clearly 

establish that he was not an impartial medical examiner and instead was a professional witness 

who testified only on behalf of employing establishments or insurance companies against the 

interests of injured workers. Counsel noted that Dr. McGraw participated in litigation in 14

different cases, and that in each case he was hired by the employing establishment/insurance 

company and submitted an opinion which was favorable to the party that was paying his bill 

rather than the injured worker. He felt that these cases showed that Dr. McGraw had a 

documented history of bias against injured workers and, therefore, his opinion could not serve as 

the weight of the medical evidence regarding work-related residuals after July 11, 2004.32 

Counsel summarized Dr. McGraw’s role in the 14 cases, which were heard in the U.S. District 

Court for the Western District of Pennsylvania or the Commonwealth Court of Pennsylvania, and 

submitted copies of the case to the record.

The Board finds that this evidence and argument fails to demonstrate clear evidence of 

error by OWCP in its October 30, 2015 decision. The evidence and argument submitted by 

counsel on behalf of appellant did not raise a substantial question concerning the correctness of 

 

27 R.S., Docket No. 08-1158 (issued January 29, 2009).

28 Supra note 15 at Chapter 2.1602.4; see C.B., Docket No. 13-1732 (issued January 28, 2014).

29 See id. at Chapter 2.1602.4b.

30 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

31 See supra note 16.

32 See supra notes 26 and 27, regarding the weight accorded well-rationalized reports of impartial medical 

specialists.
8

OWCP’s decision.33 Counsel did not adequately explain how the mere fact that the submitted 

court cases addressed medical opinions of Dr. McGraw, which he believed were unfavorable to 

the claimants in those cases, showed bias on the part of Dr. McGraw. The Board has carefully 

reviewed the court cases and notes that they do not establish evidence of bias by Dr. McGraw 

against injured workers. Nor did counsel explain how the facts of these cases, totally unrelated 

to the present case, proved bias against appellant by Dr. McGraw when producing his 

September 15, 2015 report in his role as an impartial medical specialist. Counsel also made 

reference to an article authored by Dr. McGraw which he felt showed that he did not accept the 

validity of the diagnosis of multiple chemical sensitivities, but he did not submit a copy of this 

article or adequately explain how it established bias with respect to appellant.

34

 Moreover, the 

Board has carefully reviewed the September 15, 2015 report of Dr. McGraw and notes that it 

does not show any bias against appellant. 

The Board finds that appellant’s application for review does not show on its face that 

OWCP committed error when it found in its October 30, 2015 decision that appellant was not 

entitled to wage-loss compensation and medical benefits on or after July 11, 2004.

35

 As noted

above, clear evidence of error is intended to represent a difficult standard.36 In essence, appellant 

has simply challenged the sufficiency of the opinion of Dr. McGraw by claiming bias, but such a 

generalized, unsupported argument would not show on its face that OWCP committed error in its 

October 30, 2015 decision.37

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

question concerning the correctness of OWCP’s October 30, 2015 decision and OWCP properly 

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

 

33 See supra note 19.

34 Counsel also discussed a May 26, 2016 report of Dr. Herbert, an attending physician, which he characterized as 

containing an opinion that appellant continued to suffer from work-related multiple chemical sensitivities causing 

disability from work. However, the record does not contain a copy of a May 26, 2016 report of Dr. Herbert and 

counsel’s mere characterization of this report would not show clear evidence of error in OWCP’s October 30, 2015 

decision.

35 See S.F., Docket No. 09-0270 (issued August 26, 2009). On appeal, counsel provided similar arguments 

claiming bias by Dr. McGraw, but he does not provide any convincing argument that the evidence of record 

supports such finding of bias.

36 See supra note 16.

37 As noted above, to show 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. See supra note 17. Even if, for the sake of argument, appellant had shown that

Dr. McGraw was biased and that his opinion could not represent the weight of the medical evidence, there would 

still be a continuing conflict in the medical evidence regarding whether appellant established work-related disability 

or need for medical care on or after July 11, 2004 and she would not have shifted the weight of the evidence in her

favor. See supra notes 26 and 27.
9

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 November 10, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 16, 2017

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