United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.B., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Morgantown, WV, Employer 

__________________________________________ 

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Docket No. 16-1521 

Issued: February 3, 2017 

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 July 22, 2016 appellant filed a timely appeal from a July 7, 2016 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision was 

the November 22, 2010 decision of the Board, which became final after 30 days of issuance and 

is not subject to further review. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c), 501.3 and 501.6(d), the Board lacks jurisdiction over the merits of 

this 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 following the July 7, 2016 decision. Since the Board’s 

jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not 

consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 

126 (2005). 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts and circumstances as 

presented in the prior decisions and orders of the Board are incorporated herein by reference. 

The relevant facts are set forth below. 

On August 18, 1978 appellant, then a 35-year-old cook foreman, resigned from the 

employing establishment. On November 20, 2008 he filed an occupational disease claim (Form 

CA-2) alleging that he developed delayed onset of post-traumatic stress disorder (PTSD) due to 

his constructive termination from employment on or about August 6, 1978. Appellant indicated 

that he first became aware of his condition and realized it resulted from his employment on 

February 15, 2004. He explained that he did not file his claim within 30 days of becoming aware 

of his employment-related condition because the condition was not diagnosed prior to 

February 15, 2004.4

In a letter dated November 21, 2008, appellant related that he was diagnosed with 

delayed onset PTSD on February 15, 2004. He noted that he promptly notified the employing 

establishment in 2004 when he learned of his mental impairment. Appellant alleged that the 

constructive discharge by the employing establishment on or about August 6, 1978 caused or 

contributed to his diagnosis. 

Appellant provided a July 7, 2004 neuropsychological evaluation report by Dr. Martin L. 

Boone, a neuropsychologist. Dr. Boone reviewed appellant’s history and indicated that he likely 

began to experience symptoms of PTSD when he returned from Vietnam in 1968. He reported 

that appellant experienced a substantial increase in symptoms after he was forced to retire from 

the employing establishment due to a very stressful occupational experience associated with his 

employment at the employing establishment in the late 1970s. He explained that the employing 

establishment forced appellant to resign or he would be fired without any apparent justification. 

Dr. Boone diagnosed delayed onset PTSD. 

By letter dated December 15, 2008, C.D., a workers’ compensation and employee health 

coordinator at the employing establishment, controverted appellant’s claim alleging that it was 

untimely filed within the three-year time limitation. She asserted that he indicated that he first 

became aware of his condition on February 15, 2004, but did not file an occupational disease 

claim until November 2008. C.D. also pointed out that appellant had not been employed by the 

employing establishment since 1978 and that he has been gainfully employed since he retired. 

By letter dated February 20, 2009, OWCP advised appellant that the evidence submitted 

was insufficient to establish his occupational disease claim. It requested additional evidence to 

support that he sustained a diagnosed medical condition as a result of factors of his employment. 

 3

 Docket No. 15-0766 (issued October 5, 2015); Docket No. 14-141 (issued May 14, 2014); Docket No. 12-0004 

(issued January 25, 2012); Docket No. 10-0673 (issued November 22, 2010). 

4

 Appellant is currently receiving benefits from the Department of Veterans Affairs (VA) for service-connected 

PTSD due to his military service from 1967 to 1976. He is also receiving disability benefits from the Social 

Security Administration (SSA) for anxiety disorders. 
3

OWCP specifically noted that it did not appear that appellant timely filed his claim within three 

years of the date of injury or date of awareness of a relationship between the claimed condition 

and his employment as required under 5 U.S.C. § 8122. It requested evidence to support that his 

claim was timely filed. Appellant was afforded 30 days to submit the additional evidence. 

On May 15, 2009 OWCP received appellant’s response to its development letter and 

completed questionnaire form. Appellant related that in July 2004 Dr. Boone diagnosed delayed 

onset PTSD and opined that his condition was a result of the forceful resignation by his 

supervisors. He explained that he began having problems in 1978, but he never really knew what 

his problems were prior to 2004. Appellant discussed the medical treatment he received. 

OWCP denied appellant’s occupational disease claim in a decision dated July 10, 2009. 

It determined that the record of evidence established that appellant was aware or should have 

been aware of his alleged employment-related condition on or about July 7, 2004. OWCP noted 

that because appellant did not file his occupational disease claim until November 20, 2008, his 

claim was untimely filed within the three-year time limitation pursuant to 5 U.S.C. § 8122. 

Appellant, through counsel, requested a telephone hearing before an OWCP hearing 

representative in a letter dated July 23, 2009. A hearing was held on October 23, 2009. Counsel 

was present. Appellant explained that in 2004 he was diagnosed with delayed onset PTSD due 

to his alleged forceful resignation in 1978 and he had immediately reported the injury to the 

employing establishment. He related that the employing establishment advised him to reopen his 

old Equal Employment Opportunity Commission (EEOC) case for discrimination and did not 

inform him about filing a workers’ compensation claim. Appellant asserted that if he had known 

about filing a workers’ compensation injury in 2004 he would have filed a claim. He noted that 

he did not know that he could file a workers’ compensation claim until 2008. Counsel argued 

that this case was not a question of when appellant knew about his condition, but whether he 

knew what to do about filing a claim. He alleged that appellant properly informed the employing 

establishment about the delayed onset PTSD in 2004. 

In a July 27, 2009 progress note, Dr. Abdel Massoud, a psychiatrist, related that appellant 

had been under his care since 2001 for depression and PTSD, which made him not able to make 

good decisions for himself in a timely manner. 

On September 3, 2009 OWCP received a statement from appellant. Appellant corrected 

discrepancies he found in the record and alleged that the various errors in his record were 

affecting how OWCP reviewed his case. He further clarified that he believed his serviceconnected PTSD with the VA was different from the PTSD delayed onset that he experienced 

after his alleged forceful resignation in August 1978. 

Appellant submitted various documents from the EEOC. He provided a September 19, 

2007 letter, which advised appellant that he had exhausted all administrative remedies regarding 

his April 12, 2004 complaint. Appellant also submitted a decision dated June 20, 2006 from the 

U.S. District Court for the Northern District of West Virginia, which denied defendant’s motion 

for summary judgment regarding a civil action that appellant filed on March 29, 2005 for 

disability due to delayed onset PTSD as a result of forceful resignation. He also provided a 
4

decision dismissing plaintiff’s complaint from the U.S. District Court for the Northern District of 

West Virginia. 

In a decision dated December 14, 2009, the hearing representative affirmed OWCP’s 

July 10, 2009 decision. He determined that the record established that appellant did not file a 

timely occupational disease claim under 5 U.S.C. § 8122 and appellant’s unawareness of the law 

was insufficient to provide an exception to the three-year filing requirement. 

Appellant filed an appeal before the Board. By decision dated November 22, 2010, the 

Board affirmed the December 14, 2009 decision. The Board determined that appellant’s 

November 20, 2008 claim was untimely filed within three years pursuant to 5 U.S.C. § 8122 and 

there was no evidence that appellant’s supervisor had actual knowledge of his injury within 30 

days of his last date of employment exposure.5

Appellant subsequently filed multiple requests for reconsideration of OWCP’s 

December 14, 2009 decision. OWCP denied appellant’s reconsideration requests by nonmerit 

decisions dated January 5, 20116

 and July 12, 2013,7 both of which were subsequently reviewed 

by the Board. 

OWCP received appellant’s latest request for reconsideration on January 5, 2016. In a 

letter dated December 21, 2015, appellant noted that he contacted OWCP multiple times but had 

not heard back about his 2004 work-related injury. He alleged that he put the employing 

establishment on notice when he was first diagnosed with a work-related injury. Appellant 

claimed that in February and July 2004 he reported his injury to the employing establishment, 

but they failed to inform OWCP of the reported injury. He stated that the employing 

establishment did not inform him of how to file a workers’ compensation claim, but instead 

advised him to re-file his claim with the EEOC. Appellant noted that he was enclosing a copy of 

the 8120 form (Report of Injury) and EEOC documentation. He asserted that the documentation 

would prove that the employing establishment had actual knowledge of the injury in 2004. No 

additional documentation was enclosed with the reconsideration request. 

 5

 Docket No. 10-0673 (issued November 22, 2010). Appellant filed a petition for reconsideration of the Board’s 

decision. On June 10, 2011 the Board issued an Order Denying Petition for Reconsideration. Docket No. 10-673 

(issued June 10, 2011). 

6

 Appellant filed an appeal of OWCP’s January 5, 2011 nonmerit decision before the Board. In Order Dismissing 

Appeal dated January 25, 2012, the Board dismissed appellant’s appeal as untimely filed. Docket No. 12-0004 

(issued January 25, 2012). 

7

 Docket No. 14-141 (issued May 14, 2014). Appellant appealed OWCP’s July 12, 2013 nonmerit decision, 

which the Board affirmed by decision dated May 14, 2014. Docket No. 14-141 (issued May 14, 2014). Appellant 

subsequently filed a petition for reconsideration, which the Board dismissed as untimely filed in an Order 

Dismissing the Petition. Docket No. 14-141 (issued March 12, 2015). Following the Board’s March 12, 2015 Order 

Dismissing the Petition, appellant wrote to the Board in a letter dated January 26, 2015. The Board considered the 

letter as a request for a new appeal and assigned Docket No. 15-0766. By Order Dismissing Appeal dated May 11, 

2015, the Board dismissed appellant’s appeal because there was no final adverse OWCP decision over which the 

Board may properly exercise jurisdiction. Docket No. 15-766 (issued May 11, 2015). Appellant filed a petition for 

reconsideration before the Board, which the Board dismissed by Order Dismissing Petition for Reconsideration 

dated October 5, 2015. 
5

In letters dated January 10 and 17, 2016, appellant asserted that after Dr. Boone informed 

him in July 2004 that he had a work-related injury he reported the injury to the employing 

establishment, but they did not report his work-related injury to OWCP as required. He related 

that the employing establishment advised him to file an EEOC claim, which they eventually 

denied, and did not inform him to file a claim for workers’ compensation. Appellant noted that 

he had been fighting the employing establishment for years and they continued to allege that his 

claim was untimely filed even though they had actual knowledge of his work injury in 2004. He 

claimed that he followed all OWCP rules and that the employing establishment had not. 

Appellant explained that he had a latent condition, which meant that the time began to run when 

he became aware of his condition. He noted that he was unaware of his condition until 

Dr. Boone examined him in 2004. 

Appellant provided an annotated copy of 5 U.S.C. § 8120 regarding the employing 

establishment’s responsibility to report an injury and 5 U.S.C. § 8122 regarding the timeframe to 

file a claim under FECA. 

By decision dated February 24, 2016, OWCP denied merit review of the Board’s May 11, 

2015 order because appellant’s January 5, 2016 reconsideration request did not meet any of the 

requirements requiring further merit review under 5 U.S.C. § 8128(a). The Board found that he 

did not establish that OWCP erroneously applied or interpreted a point of law or advance any 

new legal argument not previously considered. OWCP further determined that the evidence 

submitted was cumulative, and thus, substantially similar to evidence or documentation already 

considered. 

Appellant filed an appeal before the Board. By decision dated June 1, 2016, the Board 

set aside the February 24, 2016 OWCP decision, which denied further merit review of 

appellant’s claim under 5 U.S.C. § 8128(a).8

 It determined that OWCP erroneously noted that 

the decision under review was the Board’s May 11, 2015 order, which dismissed appellant’s 

January 26, 2015 appeal for lack of jurisdiction, but the last OWCP merit decision was the 

OWCP hearing representative’s December 14, 2009 decision.9 The Board remanded the case for 

OWCP to properly adjudicate appellant’s January 5, 2016 reconsideration request under the 

standard for an untimely request for reconsideration. 

By de novo decision dated July 7, 2016, OWCP denied appellant’s January 5, 2016 

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

error. It determined that because appellant’s reconsideration request of the last merit decision 

was received on January 5, 2016 it was not timely filed within the one-year time limitation. 

OWCP further found that appellant’s reconsideration request and evidence submitted failed to 

demonstrate clear evidence that OWCP’s decision was in error. 

 8

 Docket No. 16-0746 (issued June 1, 2016). The above-mentioned Board decision is incorporated herein by 

reference. 

9

 While the Board’s prior decision noted that the last OWCP merit decision was the December 14, 2009 decision, 

the Board notes that the Board’s November 22, 2010 decision was the last merit decision of record. Appellant had 

one year from November 22, 2010 to file a timely request for reconsideration with OWCP. A right to 

reconsideration within one year accompanies any subsequent merit decision. This includes ... any merit decision by 

the Board. R.M., Docket No. 15-538 (issued September 23, 2016). 
6

LEGAL PRECEDENT 

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

claimant’s application for reconsideration must be received by OWCP within one year of the 

date of OWCP’s decision for which review is sought.10 The Board has found that the imposition 

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

OWCP under section 8128(a) of FECA.11 

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. When an application for review is untimely filed, it must nonetheless 

undertake a limited review of the evidence previously of record to determine whether the new 

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

decision.12 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.13 The Board makes an independent 

determination of whether a claimant has submitted clear evidence of error on the part of OWCP 

such that it improperly denied merit review in the face of such evidence.14

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.15 Evidence that does not raise a substantial 

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

evidence of error.16 It is not enough merely to show that the evidence could be construed so as to 

produce a contrary conclusion. 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 

ANALYSIS 

The last merit decision in the case was the Board’s November 22, 2010 decision, which 

affirmed OWCP’s December 14, 2009 decision denying appellant’s occupational disease claim 

because it was untimely filed under 5 U.S.C. § 8122. Appellant submitted several requests for 

 10 20 C.F.R. § 10.607(a). 

11 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

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

13 Nelson T. Thompson, 43 ECAB 919 (1992). 

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

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

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

17 Annie L. Billingsley, 50 ECAB 210 (1998). 
7

reconsideration before OWCP, which were denied. Appellant’s latest request for reconsideration 

was dated December 21, 2015 and received on January 5, 2016. 

The only decision before the Board on this appeal is the July 7, 2016 OWCP decision, 

which declined to reopen appellant’s case on the merits because his request was untimely filed 

and failed to demonstrate clear evidence of error. The Board finds that OWCP properly 

determined that appellant failed to file a timely application for review. OWCP received 

appellant’s latest request for reconsideration on January 5, 2016, which was more than one year 

after the November 22, 2010 decision and was therefore outside the one-year time limit.18 

Consequently, appellant must demonstrate clear evidence of error by OWCP in denying his 

claim for compensation.19 

The Board finds that appellant has not demonstrated clear evidence of error by OWCP. 

OWCP denied appellant’s occupational disease claim because he did not file a timely claim 

under 5 U.S.C. § 8122. It found that appellant was aware or should have been aware of his 

alleged work-related injury on or about July 7, 2004, but he did not file his occupational disease 

claim until, approximately four years later on November 20, 2008. OWCP determined that 

appellant did not file his claim within the three-year time limitation under 5 U.S.C. § 8122 and 

failed to establish that the employing establishment had actual knowledge of his injury within 30 

days. Along with his most recent January 5, 2016 reconsideration request, appellant reiterated 

his previous arguments that the employing establishment had actual knowledge of his workrelated injury within 30 days of July 7, 2004. He reported that he informed the employing 

establishment about his injury in February and July 2004, and they advised him to file an EEOC 

complaint. Appellant asserted that the employing establishment failed to inform him that he 

needed to file a separate claim for workers’ compensation and also failed to report the injury to 

OWCP as required by OWCP regulations. He provided an annotated copy of two FECA 

statutory provisions, 5 U.S.C. §§ 8120 and 8122. 

The Board finds that appellant’s duplicative contentions do not raise a substantial 

question as to whether OWCP’s decision finding that his claim was untimely filed was 

erroneous.20 Appellant merely reasserted his previous arguments that the employing 

establishment had actual knowledge of his alleged work-related injury because he informed them 

of his condition in 2004. OWCP has previously considered these arguments in its prior decision 

and found them to be insufficient. Appellant’s assertions did not raise a substantial question as 

to the correctness of OWCP’s decision.21 Furthermore, the annotated copy of FECA statutes also 

fail to support that OWCP committed an error in denying appellant’s occupational disease 

 18 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(4) (October 2011). 

For decisions issued on or after August 29, 2011, the one-year period begins on the date of the original decision, and 

the application for reconsideration must be received by OWCP within one year of the date of its decision for which 

review is sought. 

19 20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005). 

20 Supra note 16. 

21 Id.
8

claim.22 Appellant has not presented any additional evidence to establish that he filed a timely 

occupational disease claim under 5 U.S.C. § 8122 or that the employing establishment had actual 

knowledge of his work-related injury within 30 days sufficient to establish that OWCP’s denial 

decision was clearly erroneous. 

To demonstrate clear evidence of error, it is not sufficient to merely show that the 

evidence could be construed so as to produce a contrary conclusion. The term clear evidence of 

error is intended to represent a difficult standard.23 The Board finds that the arguments and 

evidence submitted by appellant in support of his untimely request for reconsideration do not 

constitute positive, precise, and explicit evidence, which manifested on its face that OWCP 

committed an error in denying appellant’s occupational disease claim.24 Therefore, appellant 

failed to meet his burden of proof to demonstrate clear evidence of error on the part of OWCP. 

On appeal, appellant alleges that the reconsideration of all his cases were filed within the 

one-year time limitation. He notes that he requested an appeal before the Board on 

November 22, 2010 and a hearing before an OWCP hearing representative on December 19, 

2010, which would be within the one-year time limitation of the December 14, 2009 decision. 

The Board notes that the November 22, 2010 appeal and December 14, 2009 hearing request are 

not presently before the Board. These previous appeals have been considered. The current issue 

before the Board is whether appellant’s latest reconsideration request dated December 21, 2015 

and received on January 5, 2016 demonstrated clear evidence of error by OWCP sufficient to 

warrant further merit review of appellant’s case. For reasons explained above, the Board has 

found that appellant did not meet his burden of proof to establish that his untimely January 5, 

2016 reconsideration request demonstrated clear evidence of error in OWCP’s December 14, 

2009 merit decision. Accordingly, OWCP properly denied his request. 

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. 

 22 Supra note 14. 

23 Supra note 18 at Chapter 2.1602.5a (October 2011). 

24 Supra note 15. 
9

ORDER 

IT IS HEREBY ORDERED THAT the July 7, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: February 3, 2017 

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