United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Beckley, WV, Employer 

__________________________________________ 

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Docket No. 16-0326 

Issued: September 13, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 December 9, 2015 appellant, through counsel, filed a timely appeal from a June 15, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than one year has elapsed since the last merit decision dated July 18, 2006, and the date of this 

appeal,2

 pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case. 

 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

 For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an 

appeal with the Board. See 20 C.F.R. § 501.3(d)(2) (2008). 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

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

On appeal counsel contends that OWCP’s decision was contrary to fact and law. 

FACTUAL HISTORY 

On June 30, 2005 appellant, then a 52-year-old patient records assistant, filed an 

occupational disease claim (Form CA 2) alleging that she suffered an emotional condition (stress 

followed by bouts of depression, insomnia, and paranoia) causally related to factors of her 

federal employment. The employing establishment controverted appellant’s claim. 

In a decision dated October 14, 2005, OWCP denied appellant’s claim, finding that the 

evidence was insufficient to establish that the events occurred as alleged and that no medical 

evidence provided a diagnosis which could be connected to the claimed events. 

On November 10, 2005 appellant requested a hearing before an OWCP hearing 

representative. 

In a decision dated July 18, 2006, an OWCP hearing representative found that neither 

appellant’s allegations with regard to the development of her workers’ compensation claim nor 

her activities as a union representative constituted compensable factors of employment. She 

further determined that appellant did not establish that she experienced discrimination alleged in 

her Equal Employment Opportunity (EEO) complaint, which included allegations that she was 

denied an opportunity to compete for positions and was denied a position or transfer. The 

hearing representative found that appellant had established compensable factors of employment 

as the evidence supported that she received inadequate training in the oncology department and 

that she was provided insufficient supplies to perform her job. However, she determined that the 

medical evidence did not establish that appellant sustained an emotional condition causally 

related to these accepted factors of employment. Accordingly, the hearing representative 

affirmed the denial of appellant’s claim. 

By letter dated March 30, 2015, received by OWCP on May 5, 2015, appellant requested 

reconsideration. She alleged that OWCP chose to brush aside her claim because it was 

complicated. Appellant argued that she did her job until she could no longer safely do so. She 

noted instances of alleged discrimination and harassment, and further contended that she suffered 

a reprisal due to her EEO claim. Appellant alleged that she was not allowed to compete for 

certain jobs and was overworked. She discussed her medical treatment. Appellant submitted 

copies of receipts for her medication and earnings and leave statements from the employing 

establishment. 

Appellant also submitted a June 10, 2008 form response wherein Dr. John Hutton, a 

Board-certified psychiatrist, noted appellant’s history of severe workplace stress, harassment, 

conflict, sense of abandonment, humiliation, and degradation. Dr. Hutton noted objective 

physical findings of anxiety, fear, intensive thoughts, nightmares, panic, obsessiveness, crying, 
3

and depression. He diagnosed post-traumatic stress disorder (PTSD) and major depressive 

disorder single episode severe with psychotic symptoms. 

Appellant also submitted copies of letters regarding her lawsuit against the employing 

establishment in the United States District Court of the Southern District of West Virginia. 

These documents included a copy of the release that she signed, noting that a settlement had 

been reached in the amount of $60,000.00. The release also contained a statement that the 

employing establishment was sorry that the last several years of appellant’s employment had 

been so stressful. The release specifically indicated that it was not intended to cover any claim 

with OWCP. It also revealed that it was understood that the settlement did not constitute an 

admission of liability, but rather to the contrary liability for the claim was strictly denied. 

Appellant also submitted a portion (8 pages of 23) of a March 28, 2007 investigative report 

conducted by the employing establishment with regard to her EEO complaint. This partial 

document set forth appellant’s allegations and a few of the investigator’s findings. 

By decision dated June 15, 2015, OWCP denied appellant’s request for reconsideration as 

it was untimely filed and failed to demonstrate clear evidence of error.4

LEGAL PRECEDENT 

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

claimant must file his application for review within one year of the date of that decision.5 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.6 The one-year period 

begins on the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board.7

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 nevertheless 

undertake a limited review to determine whether the application demonstrates clear evidence of 

error.8

 OWCP regulations and procedures provide that it will reopen a claimant’s case for merit 

 4

 In the June 15, 2015 decision, OWCP stated that appellant requested reconsideration of a March 30, 2015 

decision. The June 15, 2015 decision later states that the request for reconsideration was not timely filed. The 

Board finds that there was no decision issued in this case on March 30, 2015; the last decision in the current case 

was issued by OWCP on July 19, 2006. The Board also notes that there was no decision issued in appellant’s other 

case, Docket No. xxxxxx187, on that date. It appears that OWCP’s reference to a March 30, 2015 decision was an 

error, and that this date may refer to the date of appellant’s reconsideration request. 

5

 20 C.F.R. § 10.607(a). 

6

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

7 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 

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

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.9

 

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

issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

clear evidence of error.12 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.13 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.14 To show 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.15 

ANALYSIS 

The Board finds that OWCP properly declined to reopen appellant’s claim for 

reconsideration of the merits as the request for reconsideration was untimely filed and did not 

demonstrate clear evidence of error. 

As previously stated, the Board does not have jurisdiction over the last merit decision 

issued on July 18, 2006. The only decision over which the Board has jurisdiction is the June 15, 

2015 nonmerit decision wherein OWCP denied reconsideration as appellant’s request was 

untimely filed and failed to demonstrate clear evidence of error. As more than one year elapsed 

between the last merit decision issued in this case on July 18, 2006 and appellant’s May 5, 2015 

request for reconsideration, OWCP properly found that appellant’s request for reconsideration 

was untimely filed. 

The Board further finds that OWCP properly denied appellant’s untimely request for 

reconsideration as she failed to demonstrate clear evidence of error. OWCP initially denied 

appellant’s claim for an emotional condition. It determined that the only compensable factors of 

employment that appellant had established were improper training for her assignment in 

 9

 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 

(October 2011). 

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

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

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

13 See supra note 11. 

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

15 Leon D. Faidley, Jr., supra note 6. 
5

oncology and inadequate office supplies for her job. OWCP specifically rejected appellant’s 

assertions that compensable factors included harassment and discrimination, allegations that 

were pursued by appellant in her EEO claim against the employing establishment. It noted that 

appellant had not submitted documents supporting her allegations. Appellant has now submitted 

the settlement agreement and other papers with regard to her claim before the United States 

District Court for the Southern District of West Virginia. These documents do not establish clear 

evidence of error. The settlement agreement specifically noted that it was not intended to cover 

any claim appellant may have against OWCP. The agreement indicated that the settlement did 

not constitute an admission of liability, and that liability for the claim was specifically denied by 

the employing establishment. The incomplete investigative report also does not establish clear 

evidence of error as only a small portion of the report was submitted into the record, and this 

portion merely sets forth appellant’s allegations. Appellant’s leave statements and medication 

receipts do not demonstrate clear evidence of error as they do not address compensable factors of 

employment nor are they medical opinions addressing causal relationship. 

OWCP did determine that appellant experienced specific compensable factors of 

employment, i.e., she was improperly trained for her work in the oncology department and she 

was given insufficient office supplies. However, it denied her claim as appellant failed to submit 

medical evidence finding that her diagnosed emotional conditions were caused or aggravated by 

these specific factors of her federal employment. On reconsideration, appellant submitted a 

June 10, 2008 form response to queries wherein Dr. Hutton indicated that appellant experienced 

stress, harassment, conflict, sense of abandonment, humiliation and degradation at her 

employment. Dr. Hutton then noted that appellant suffered from PTSD and a major depressive 

disorder with psychotic symptoms. However, he never explained how the specific accepted 

employment factors caused appellant’s emotional condition, and therefore his report also does 

not demonstrate clear evidence of error. 

The Board notes that clear evidence of error is intended to represent a difficult standard. 

Even the submission of a detailed well-rationalized report which, if submitted before the denial 

was issued, would have created a conflict in medical opinion requiring further development, is 

not clear evidence of error.16

Accordingly, the Board finds that OWCP properly denied appellant’s untimely 

reconsideration request. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s request for 

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

 16 B.W., Docket No. 15-0892 (issued August 26, 2015). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 15, 2015 is affirmed. 

Issued: September 13, 2016 

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