United States Department of Labor

Employees’ Compensation Appeals Board

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E.B., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Morgantown, WV, 

Employer

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Docket No. 19-0036

Issued: May 21, 2019

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 October 1, 2018 appellant filed a timely appeal from a July 2, 2018 nonmerit decision 

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

a Board decision dated November 22, 2010, which became final after 30 days of issuance and is 

not subject to further review.1 As there was no merit decision by OWCP within 180 days of 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 this case.3 

 

1 20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued 

July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the July 2, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id. 
2

ISSUE

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

finding that 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 and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On November 20, 2008 appellant, then a 65-year-old cook foreman, filed an occupational 

disease claim (Form CA-2) alleging that he developed delayed onset of post-traumatic stress 

disorder (PTSD) due to his forced constructive termination from employment on or about 

August 6, 1978. He indicated that he first became aware of his condition and realized that it 

resulted from his federal employment on February 15, 2004. Appellant reported that his condition 

was diagnosed on February 15, 2004. He explained that he had not filed his claim within 30 days 

of becoming aware of his employment-related condition because it was not diagnosed prior to 

February 15, 2004. On the reverse side of the claim form, the employing establishment noted that 

appellant stopped working in 1978.5 

In a letter dated November 21, 2008, appellant alleged that he sustained delayed onset of 

PTSD due to his constructive discharge by the employing establishment on or about 

August 6, 1978. He noted that he had not learned of his condition until February 15, 2004. 

Appellant related that he promptly notified the employing establishment. 

In a neuropsychological evaluation report dated July 7, 2004, Dr. Martin L. Boone, a 

neuropsychologist, related that he had treated appellant for a long history of anxiety symptoms 

related to PTSD. He reviewed appellant’s history and related that appellant began to experience 

PTSD symptoms more frequently after he was forced to resign from the employing establishment. 

Dr. Boone diagnosed delayed onset of PTSD and chronic pain. 

In a December 15, 2008 letter a workers’ compensation and employee health coordinator 

at the employing establishment controverted appellant’s claim. She contended that he filed his 

occupational disease claim well beyond the three-year time limitation. The coordinator related 

that appellant became aware of his work-related PTSD condition in 2004, but had not filed an 

occupational disease claim until 2008. 

 

4 Docket No. 10-0673 (issued November 22, 2010), denying petition for recon., Docket No. 10-0673 (issued 

June 10, 2011); Order Dismissing Appeal, Docket No. 12-0004 (issued January 25, 2012); Docket No. 14-0141 

(issued May 14, 2014); Order Dismissing Appeal, Docket No. 15-0766 (issued May 11, 2015); Order Dismissing 

Petition for Reconsideration, Docket No. 15-0766 (issued October 5, 2015); Docket No. 16-0746 (issued June 1, 

2016); Docket No. 16-1521 (issued February 3, 2017); Order Dismissing Appeal, Docket No. 18-0571 (issued 

April 17, 2018).

5 Appellant resigned from federal employment on August 18, 1978. 
3

In a development letter dated February 20, 2009, OWCP informed appellant that the 

evidence submitted was insufficient to establish the claim. It advised him of the type of medical 

and factual evidence needed, including a detailed description of employment factors which he 

believed contributed to his condition and a medical report from his physician. OWCP also noted 

that it did not appear that appellant had 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. 

It requested evidence to support that his claim had been timely filed. OWCP afforded appellant

30 days to submit the necessary evidence. 

In a March 4, 2009 letter, appellant, through counsel, responded to OWCP’s development 

letter. He described appellant’s employment duties as a cook foreman and how he was forced to 

resign by the employing establishment. Counsel referenced several medical reports and explained 

that they established appellant’s injury and answered questions in its development letter. 

By decision dated July 10, 2009, OWCP denied appellant’s occupational disease claim 

finding it was not timely filed pursuant to 5 U.S.C. § 8122. It found that the evidence of record 

had established that he had not timely filed his claim within the three-year time limitation,

February 15, 2004, the date when he was aware or reasonably should have been aware of his 

employment-related injury. OWCP also determined that appellant’s supervisor did not have actual 

knowledge of his condition within 30 days of his last exposure. 

On July 23, 2009 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. A hearing was held on October 23, 2009. 

Following the hearing, appellant submitted various documents from the Equal 

Employment Opportunity Commission (EEOC) and from federal district court. A September 19, 

2017 letter from the EEOC advised him that he had exhausted all administrative remedies 

regarding his April 12, 2004 complaint. An opinion dated June 20, 2006 from the U.S. District 

Court for the Northern District of West Virginia denied defendant’s motion for summary 

judgement regarding a civil action that appellant had filed on March 29, 2005 for disability due to 

delayed onset PTSD as a result of forceful resignation. A subsequent decision dated September 27, 

2006 dismissed plaintiff’s complaint from the U.S. District Court for the Northern District of West 

Virginia. 

By decision dated December 14, 2009, an OWCP hearing representative affirmed the 

July 10, 2009 decision. He found that the evidence of record demonstrated that appellant had not 

filed his workers’ compensation claim within the three-year time limitation required under FECA. 

The hearing representative also noted that there was no evidence of record to establish an exception 

to the three-year filing requirement. 

Appellant filed an appeal to 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 not timely filed within three years pursuant to 5 U.S.C. § 8122 and the evidence 
4

of record did not establish that appellant’s supervisor had actual knowledge of appellant’s injury 

within 30 days of his last date of employment exposure from August 18, 1978.6 

Appellant subsequently filed multiple requests for reconsideration of OWCP’s 

December 14, 2009 decision. OWCP denied his reconsideration requests by nonmerit decisions 

dated January 5, 2011,7July 12, 2013,8July 7, 2016,9and June 21, 2017.10 These decisions were 

subsequently reviewed by the Board and adjudicated appropriately.

OWCP received appellant’s latest request for reconsideration on April 24, 2018. Appellant

requested that OWCP reopen his claim for reconsideration of the merits of his claim and contended 

that he filed his occupational disease claim on time. He reiterated that when he informed the 

employing establishment in July 2004 that he was recently diagnosed with delayed-onset of PTSD 

he was advised to file an EEO complaint. Appellant alleged that he put the employing 

establishment on notice of his work injury in 2004 and that there was no three-year delay in filing 

his claim. He asserted that in 2004 the employing establishment failed to follow OWCP’s rules to 

notify them of his work-related injury. 

Appellant submitted a copy of 5 U.S.C. § 8122 regarding the timeliness of making a claim. 

In a statement dated April 25, 2018, appellant reiterated that he notified the employing

establishment about his claim for delayed onset of PTSD in April 2004 and was instructed to file 

an EEOC complaint. He asserted that the employing establishment had not followed the rules and 

notified OWCP of the work-related injury. Appellant provided the name of the EEO officer and 

alleged that the EEOC complaint put the employing establishment on notice and they had actual 

knowledge of his injury in April and July 2004. 

Appellant submitted a signed declaration dated November 21, 2005 by an EEO specialist 

for the employing establishment, which indicated that she was able to locate his original EEO 

complaint filed on April 14, 2004. 

 

6 Docket No. 10-0673 (issued November 22, 2010).

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

Appeal dated January 25, 2012, the Board dismissed his appeal as untimely filed. Docket No. 12-0004 (issued 

January 25, 2012).

8 Appellant filed an appeal of OWCP’s July 12, 2013 nonmerit decision before the Board. By decision dated 

May 14, 2014, the Board affirmed the nonmerit decision. Docket No. 14-0141 (issued May 14, 2014).

9 Appellant filed an appeal of OWCP’s July 7, 2016 nonmerit decision, which was affirmed by the Board in a 

decision dated February 3, 2017. 

10 Appellant filed an appeal of OWCP’s June 21, 2017 nonmerit decision before the Board. By Order Dismissing 

Appeal dated April 17, 2018, the Board dismissed his appeal as untimely filed. Docket No. 18-0571 (issued April 17, 

2018). 
5

By decision dated July 2, 2018, OWCP denied appellant’s reconsideration request finding 

that it was untimely filed and failed to demonstrate clear evidence of error.11 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.12 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.13 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.14 

Timeliness is determined by the document receipt date of the request for reconsideration as is 

indicated by the “received date” in the integrated Federal Employees’ Compensation System.

15

 

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.16

OWCP may not deny an application for review solely because the application was not 

timely 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.17 

OWCP regulations and procedures provide that it 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.18

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.19 It is not enough merely to show that the evidence 

 

11 The Board notes that OWCP indicated in its July 2, 2018 decision that appellant was requesting reconsideration 

of a February 3, 2017 Board decision. The decisions and orders of the Board are final as to the subject matter appealed, 

and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d). As the last OWCP 

merit decision is the December 14, 2009 decision, this decision is the decision over which appellant could request 

reconsideration. See 20 C.F.R. § 10.607(a); see also S.M., Docket No. 18-0075 (issued April 11, 2018); Robert F. 

Stone, 57 ECAB 292 (2005). 

12 This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

13 20 C.F.R. § 10.607.

14 Id. at § 10.607(a). 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. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

15 Id. at Chapter 2.1602.4(b).

16 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

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

18 Id. at § 10.607(b); supra note 16 at Chapter 2.1602.5(a) (February 2016).

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

could be construed so as to produce a contrary conclusion.20 The evidence submitted must not 

only be of sufficient probative value to create a conflict in medical opinion or demonstrate 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.21 

OWCP procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.22 The claimant must present evidence which on its face shows that 

OWCP made an error (for example, proof that a schedule award was miscalculated). Evidence 

such as a detailed, well-rationalized medical report which, if submitted before the denial was

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

insufficient to demonstrate clear evidence of error.23 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.24

ANALYSIS

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.

OWCP’s regulations and procedures establish a one-year time limit for requesting 

reconsideration, which begins on the date of the original OWCP decision.25 The right to 

reconsideration within one year accompanies any subsequent merit decision on the issues.26 The 

last decision on the merits of the case was the Board’s November 22, 2010 decision, which 

affirmed the December 14, 2009 OWCP decision, finding that appellant had not timely filed his 

occupational disease claim. OWCP received his most recent request for reconsideration on 

April 24, 2018. Because it received appellant’s request for reconsideration more than a year after 

its last merit decision, the request was untimely filed, and he must demonstrate clear evidence of 

error on the part of OWCP in its December 14, 2009 decision.27

The Board finds that appellant’s arguments and evidence submitted on reconsideration do 

not raise a substantial question as to the correctness of OWCP’s December 14, 2009 decision or 

shift the weight of the evidence of record in his favor.

 

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

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

22 Supra note 16 at Chapter 2.1602.5a (October 2011).

23 A.R., Docket No. 15-1598 (issued December 7, 2015).

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

25 Supra note 16.

26 See Robert F. Stone, 57 ECAB 292 (2005).

27 Supra notes 17 and 20. One year from November 22, 2010 would be November 22, 2011. Therefore, OWCP 

properly found that appellant’s request for reconsideration, received on April 24, 2018 was untimely filed.
7

In its most recent decision, OWCP denied appellant’s occupational disease claim finding 

that his November 20, 2008 claim was not timely filed pursuant to 5 U.S.C. § 8122. On 

reconsideration appellant alleged that his occupational disease claim was timely filed. He 

reiterated that he was not diagnosed with the employment-related condition until July 2004. 

Appellant explained that, when he informed the employing establishment of his injury, he was 

advised to file an EEOC claim, not a workers’ compensation claim. He asserted that the employing 

establishment failed to follow OWCP’s rules and had not notified them of his work-related injury. 

Appellant argued that he put the employing establishment on notice of his work-related injury in 

2004 and there was no three-year delay in filing his claim. He submitted a signed declaration dated 

November 21, 2005 by an EEO specialist for the employing establishment, which indicated that 

she was able to locate his original EEO complaint filed on April 14, 2004. 

Appellant, however, has not provided any evidence to establish that his November 20, 2008 

occupational disease claim was timely filed pursuant to 5 U.S.C. § 8122. It is established that he

had filed an EEO complaint on April 14, 2004, however, this evidence is insufficient to establish 

that appellant’s supervisor had actual knowledge of the work-related injury within 30 days of the 

injury. Appellant has not submitted any evidence to demonstrate that he timely filed his 

occupational disease claim pursuant to 5 U.S.C. § 8122 or that he met any of the exceptions to the 

three-year time limitation. Accordingly, his reconsideration request does not raise a substantial 

question as to the correctness of OWCP’s decision.28 

The Board finds that appellant has not supported his reconsideration request with evidence 

or argument demonstrating that OWCP’s December 14, 1999 decision was clearly erroneous. 

Appellant’s request was insufficient to shift the weight of the evidence in his favor or raise a 

substantial question that OWCP erred in its December 14, 2009 decision. Thus, OWCP properly 

denied his request for reconsideration as it was untimely filed and failed to demonstrate clear 

evidence of error.

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.

 

28 See T.W., Docket No. 13-0594 (issued August 5, 2013).
8

ORDER

IT IS HEREBY ORDERED THAT the July 2, 2018 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: May 21, 2019

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