United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, San Jose, CA, Employer

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Docket No. 17-1210

Issued: April 12, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 11, 2017 appellant filed a timely appeal from a March 29, 2017 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from 

OWCP’s last merit decision, dated November 13, 2015, to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of the claim.2

 

1 5 U.S.C. § 8101 et seq.

2 The record provided to the Board includes evidence received after OWCP issued its March 29, 2017 decision. 

The Board’s jurisdiction is limited to the evidence that was in the case record before OWCP at the time of its final 

decision. 20 C.F.R. § 501.2(c)(1). Therefore, the Board is precluded from this new evidence for the first time on 

appeal. Id.
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

On November 13, 2014 appellant, then a 66-year-old lead transportation security officer, 

filed an occupational disease claim (Form CA-2) alleging that he developed colon cancer as a 

result of performing his stressful work duties.3 He indicated that he first became aware of his 

claimed condition on October 16, 2014, and first realized on that same date that it was caused or 

aggravated by his employment. Appellant stopped work on October 13, 2014.

In an accompanying statement, appellant further described the stress he experienced while

performing his work duties. He noted that he was on his feet for 40 hours per week (during four 

10-hour days) and reported that he was responsible for such tasks as opening passenger 

checkpoints, calibrating screening equipment, setting up rotating work schedules, and managing 

other employees. Appellant asserted that these tasks were made more difficult by changes in 

management, understaffing, baggage line malfunctions, and staffing investigations. 

Appellant submitted a November 13, 2014 report in which Dr. Derrick Wong, an attending 

Board-certified oncologist, indicated that he was treating appellant for colon cancer. In a 

November 24, 2016 report, Dr. Khoi Tran, an attending Board-certified general surgeon, discussed 

appellant’s bowel and urinary incontinence problems. Appellant also submitted a report describing 

an October 20, 2014 surgical procedure which included excision of an adenocarcinoma from his 

colon. 

In a December 17, 2014 development letter, OWCP requested that appellant submit 

additional evidence in support of his claim, including a physician’s opinion supported by a medical 

explanation as to how the reported work factors caused or aggravated a medical condition. 

Appellant submitted a December 19, 2014 report from Dr. David M. Sack, an attending 

Board-certified occupational medicine physician. He conveyed to Dr. Sack that he believed that 

stress from his job contributed to his colon cancer. Dr. Sack responded that there is no scientific 

evidence supporting any link between work stress and colon cancer.

In a March 13, 2015 report, Dr. Tran advised that appellant underwent a minimally 

invasion right colon resection for colon cancer on October 20, 2014 and noted that appellant 

reported having common side effects of the surgery, including loose stool with increased frequency 

of bowl movements. He recommended that appellant not work for two months and that he receive 

follow-up treatment from his urologist and his gastroenterologist.4

 

3 Appellant indicated that he developed an adenocarcinoma and underwent colon surgery.

4

In a March 18, 2015 report, Dr. Scott Angell, an attending Board-certified urologist, indicated that appellant 

reported having poor urinary control since his October 20, 2014 surgery. He noted that a bladder ultrasound showed 

that appellant did not completely empty his bladder.
3

In a report dated March 18, 2015, Dr. Michael Su, an attending Board-certified internist, 

opined that, based on medical examination and surgical diagnosis, appellant developed colon 

cancer 6 to 12 months prior to his October 20, 2014 surgery. He noted that appellant had worked 

for the employing establishment for over six years and that the colon cancer developed within the 

last two years. Dr. Su advised that “[d]uring a specific time” appellant developed symptoms such 

as significant worsening of fatigue and weakness, weight loss, and irregular bowel movements. 

He opined that the significant changes in appellant’s work in the last two years at the very least 

aggravated his condition and noted, “The direct exposure of continuous stress, personnel reporting 

management difficulties, and irregular working hours constituted an adverse working environment 

which likely contributed to the cause or worsened progression of his disease.” Dr. Su indicated 

that, due to this condition, appellant had urinary/fecal incontinence and weakness which was 

unlikely to resolve, and he opined that appellant was eligible for permanent disability.

In a January 25, 2015 letter, an employing establishment official acknowledged that 

appellant performed a number of the duties he delineated in the statement accompanying his claim, 

but the official asserted that appellant was not exposed to abnormal stress. The official indicated 

that any staffing shortages were temporary in nature. 

In an April 16, 2015 decision, OWCP denied appellant’s claim for employment-related 

colon cancer. It accepted employment factors with respect to appellant’s performance of his work 

duties, including having to work when understaffed, but found that appellant failed to submit 

medical evidence sufficient to establish causal relationship between a diagnosed condition and the 

accepted work factors.5

Appellant requested a hearing with a representative of OWCP’s Branch of Hearings and 

Review. During the hearing held on September 24, 2015, he provided further discussion regarding 

the employment factors which he believed contributed to his colon cancer. 

Prior to the hearing, appellant submitted a June 4, 2015 report of Dr. Robert G. Hayes, an 

attending clinical psychologist. Dr. Hayes posited that, due to a hostile work environment, 

appellant sustained several conditions, including major depressive disorder and post-traumatic 

stress disorder. 

In a June 26, 2015 report, Dr. Su provided a description of appellant’s medical condition 

similar to that provided in his March 18, 2015 report. He noted that it was well established that 

high levels of stress, and related diagnosed conditions such as post-traumatic stress disorder, 

constituted a primary risk factor for heart disease. Dr. Su asserted that there was growing evidence 

that this risk extended to other chronic diseases such as metabolic syndrome, autoimmune disease, 

and malignancy. He noted that, during the past two years, appellant was exposed to continuous 

stress, personnel reporting management difficulties, and irregular working hours. Dr. Su indicated, 

 

5 OWCP had vacated a prior decision, dated January 29, 2015, which denied appellant’s claim for employmentrelated colon cancer, because appellant had not received its December 17, 2014 development letter. It sent appellant 

another development letter and provided him an opportunity to submit additional evidence before issuing its April 16, 

2015 decision. 
4

“I feel strongly that the accumulation of these factors over time caused, as well as exacerbated, his 

colon cancer and other chronic conditions.”

In a November 13, 2015 decision, OWCP’s hearing representative affirmed OWCP’s 

April 16, 2015 decision. He determined that appellant failed to submit medical evidence sufficient 

to establish causal relationship between the claimed condition of colon cancer and the accepted 

employment factors. 

In a November 1, 2016 letter, received by OWCP on November 15, 2016, appellant 

requested reconsideration of the November 13, 2015 decision. 

Appellant submitted several articles from periodicals which generally discussed the 

relationship between cancer and environmental and behavioral factors. An October 29, 2016 

letter, signed by appellant and his union representative, discusses their disagreement with 

management’s characterization of appellant’s work duties. Appellant also resubmitted the 

March 18, 2015 report of Dr. Su.

In a March 29, 2017 decision, OWCP denied appellant’s request for reconsideration as it 

was untimely filed and failed to demonstrate clear evidence of error

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.6

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 

regulation provide that an application for reconsideration must be received within one year of the 

date of OWCP’s decision for which review is sought.7 Timeliness is determined by the document 

receipt date (i.e., the received date in OWCP’s Integrated Federal Employees’ Compensation 

System).8 When determining the one-year period for requesting reconsideration, the last day of 

the period should be included unless it is a Saturday, a Sunday or a legal holiday.9 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.10

 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.607(a).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.(b)(February 2016).

9

Id.

10 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).
5

However, OWCP will reopen a claimant’s case for merit review, notwithstanding the oneyear 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 manifest on its face that OWCP committed an 

error.11

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.12 The Board 

notes that clear evidence of error is intended to represent a difficult standard.13 Evidence that does 

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

demonstrate clear evidence of error.14 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.15 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.16 The Board makes an independent determination as to whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.17

ANALYSIS

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.18 As appellant’s request for 

reconsideration was not received by OWCP until November 15, 2016, more than one year after 

issuance of its November 13, 2015 merit decision, it was untimely filed. Consequently, he must 

demonstrate clear evidence of error by OWCP in its November 13, 2015 decision.

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

November 13, 2015 decision. 

 

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

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

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

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

15 Id.

16 Id.

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

18 See supra note 7.
6

Appellant failed to submit the type of positive, precise, and explicit evidence which 

manifests on its face that OWCP committed an error in its November 13, 2015 decision.19 His 

contentions made reference to evidence previously of record and already considered. The evidence 

and argument he submitted did not raise a substantial question concerning the correctness of 

OWCP’s November 13, 2015 decision. 

In support of his untimely reconsideration request, appellant submitted several articles 

from periodicals which generally discussed the relationship between cancer and environmental 

and behavioral factors. However, the Board notes that this evidence would not tend to show that 

OWCP erred in issuing its November 13, 2015 decision because it is of no evidentiary value in 

establishing causal relationship between his diagnosed colon cancer and his work environment. 

The Board has held that newspaper clippings, medical texts, and excerpts from publications are of 

no evidentiary value in establishing the necessary causal relationship between a claimed condition 

and employment factors because such materials are of general application and are not determinative 

of whether the specifically claimed condition is related to the particular employment factors alleged 

by the employee.20 Appellant did not explain how the submitted evidence of general application 

raised a substantial question as to the correctness of OWCP’s November 13, 2015 decision.

Appellant also resubmitted Dr. Su’s March 18, 2015 report which had previously been 

considered by OWCP and deemed insufficient to establish his claim for employment-related colon 

cancer. He did not explain how the resubmission of this report would show that OWCP erred in 

issuing its November 13, 2015 decision. An October 29, 2016 letter, signed by appellant and his 

union representative, discusses their disagreement with management’s characterization of 

appellant’s work duties. However, this letter concerns a factual matter which does not have any 

bearing on the underlying issue of this case, i.e., whether he submitted medical evidence sufficient 

to establish causal relationship between a diagnosed condition and the accepted work factors.21

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

OWCP committed error when it found in its November 13, 2015 decision that appellant has not 

met his burden of proof to establish employment-related colon cancer.22 As noted, clear evidence 

of error is intended to represent a difficult standard.23 The evidence submitted by appellant would 

not show on its face that OWCP committed error when it found in its November 13, 2015 decision 

that he has not met his burden of proof to establish employment-related colon cancer.24

 

19 See supra note 8.

20 William C. Bush, 40 ECAB 1064, 1075 (1989).

21 OWCP had accepted employment factors with respect to appellant’s performance of his work duties, including 

having to work when understaffed.

22 See S.F., Docket No. 09-0270 (issued August 26, 2009).

23 See supra note 10.

24 See supra note 8.
7

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

concerning the correctness of OWCP’s November 13, 2015 decision and OWCP properly 

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

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 March 29, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 12, 2018

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