United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.S., Appellant

and

DEPARTMENT OF THE AIR FORCE, JBSARANDOLPH AIR FORCE BASE,

San Antonio, TX, Employer

__________________________________________

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Docket No. 18-1521

Issued: April 3, 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 August 3, 2018 appellant filed a timely appeal from a July 12, 2018 nonmerit decision 

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

from OWCP’s last merit decision, dated July 26, 2016, 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 this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 determined that appellant’s request for 

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

FACTUAL HISTORY

On October 29, 2014 appellant, then a 68-year-old retired aircraft sheet-metal apprentice, 

filed an occupational disease claim (Form CA-2) alleging that she was exposed to and worked with 

various toxins and chemicals while in the performance of duty. She claimed that her work-related 

toxin/chemical exposure resulted in numerous medical conditions, including breast cancer, 

abdominal dumping, and thyroid problems. Appellant first became aware of her medical 

conditions and that they had been caused or aggravated by her federal employment on 

April 21, 1994. She submitted factual and medical evidence in support of her claim.

By development letter dated April 7, 2015, OWCP advised appellant that the evidence 

submitted was insufficient to establish her claim. It requested that she provide additional factual 

and medical evidence and complete a questionnaire. The questionnaire asked appellant to address 

when she first became aware that the alleged exposure to toxic chemicals caused her alleged 

conditions. OWCP afforded appellant 30 days to submit the necessary evidence.

In response, appellant submitted statements dated February 6 and May 18, 2012. She noted 

that she worked from August 6, 1984 until October 20, 1987, when her career ended due to a workrelated back injury. Appellant listed the various chemicals she claimed she was exposed to, 

including but not limited to, methyl ethyl ketone, Tetrachloroethylene, asbestos, Soltrol-130, 

Soltrol-220, jet fuels JP-4 and JP-5, PCPS, radiation, and Agent Orange. As a result of her 

exposure, she alleged that she developed fibromyalgia, right breast cancer, stomach problems

including the removal of part of her intestine in 2007, Sjogren’s disease, acid reflux, rheumatoid 

arthritis, bladder and bowel dysfunction, sexual dysfunction, arachnoiditis syndrome, thyroiditis, 

migraine headaches, recurrent dental problems, and difficulty swallowing. Appellant noted that 

her research indicated that the radiation and Agent Orange stored at the employing establishment 

was still active and that her physician, Dr. James W. Simmons, a Board-certified orthopedic 

specialist, had opined that there could be an association or causal relationship from those chemicals 

and her illnesses.

Appellant also submitted various documents including an April 21, 1994 medical report 

from James C. Garriott, Ph.D., a toxicologist, a June 2, 2003 article from the Wall Street Journal,

a February 11, 2012 case management review from Alamo Bone and Joint Clinic, and an 

October 1, 2013 letter from the Environmental Law and Litigation Division of the Department of 

the Air Force.

By decision dated July 23, 2015, OWCP denied appellant’s occupational disease claim 

finding that it was untimely filed. It found that she had not filed her claim within the three-year 

time period of the alleged injury as required under FECA and that the evidence of record did not 

establish that appellant’s immediate supervisor had actual knowledge within 30 days of April 21, 

1994, the date of injury.
3

On September 4, 2015 OWCP reissued the July 23, 2015 decision due to a change of 

appellant’s address.

On October 2, 2015 appellant requested a telephonic hearing before an OWCP hearing 

representative.

On May 23, 2016 a telephonic hearing was held. Appellant explained that she had not filed

her claim earlier because she did not think that she had a case until she talked to a lawyer, who 

told her to refile her claim. The hearing representative noted that appellant had filed an earlier 

occupational disease claim (Form CA-2) on July 1, 1994 for chemical exposure, as set forth in 

OWCP File No. xxxxx101, and that claim had been denied. Appellant indicated that she believed 

that she had established the timeliness requirement and that her chemical exposure (specifically 

Agent Orange) caused or worsened her cancer, breast cancer, stomach problems, and thyroid 

conditions. After the hearing, OWCP received additional factual and medical evidence.

By decision dated July 26, 2016, an OWCP hearing representative affirmed the 

September 4, 2015 decision that her claim was untimely filed.

3

 He found that appellant’s claim 

had not been filed within the three years filing requirement of the date of last exposure or from the 

perspective of “latent” disability, noting that the similarity of the current claim to appellant’s prior 

claim in OWCP File No. xxxxxx101 provided further evidence that appellant was aware of her 

illness in 1994. The hearing representative also found that there was no evidence to support 

exceptional circumstances to allow for a waiver of the timely filing requirement.

On November 28, 2016 appellant requested reconsideration. She noted that she could not 

provide additional evidence until she found a medical toxicologist.

By decision dated February 9, 2017, OWCP denied appellant’s request for reconsideration

finding that her November 22, 2016 statement submitted on reconsideration neither raised 

substantive legal questions nor included new and relevant evidence.4

On October 4, 2017 OWCP received appellant’s August 21, 2017 letter requesting 

reconsideration. Appellant related that her claim was filed untimely because she had numerous 

illnesses since her original work-related injury and she had required time for recuperation and 

rehabilitation, and her mental illness exacerbated her inability to focus. She also noted that the 

employing establishment had closed and therefore she could not provide notice of injury to a

supervisor. Additional evidence was received including magazine articles and medical reports. 

By decision dated July 12, 2018, OWCP denied appellant’s August 21, 2017 

reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence 

of error.

 

3 The hearing representative noted that appellant last worked in August 1987 and that she had identified 

April 21, 1994 as the date she first became aware of her illness and realized that it was caused or worsened by her 

federal employment.

4 On November 9, 2018 the Board issued an order dismissing appellant’s appeal as her application for review of 

OWCP’s February 9, 2017 decision was untimely filed. Docket No. 18-1401 (issued November 9, 2018). 
4

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.5 This discretionary authority, however, is subject to certain restrictions. For 

instance, a request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.6 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).7 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.8

OWCP may not deny a reconsideration request solely because it was untimely filed. When 

a claimant’s application for review is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.9 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.10

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

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

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial 

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

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

produce a contrary conclusion. 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. To demonstrate clear evidence 

of error, the evidence submitted 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.11

OWCP procedures note that the term clear evidence of error is intended to represent a 

difficult standard. 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 opinion requiring further development, is not clear evidence of error.12 

 

5 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

6 20 C.F.R. § 10.607(a).

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

8 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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

10 M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 7 at Chapter 

2.1602.5 (February 2016).

11 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

12 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).
5

The Board makes an independent determination of whether a claimant has demonstrated clear 

evidence of error on the part of OWCP.13

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. 

In the last merit decision of appellant’s case, dated July 26, 2016, OWCP denied her 

occupational disease claim because she had not filed her claim within the three-year limitation 

period provided in 5 U.S.C. § 8122. As it received appellant’s request for reconsideration on 

October 4, 2017, more than one year after the July 26, 2016 merit decision, the Board finds that 

OWCP properly determined that it was untimely filed. Consequently, appellant must demonstrate 

clear evidence of error on the part of OWCP in denying her claim for compensation.14

In support of her request for reconsideration, appellant submitted an August 21, 2017 letter 

in which she asserted that her claim was untimely filed because she had numerous illnesses since 

an initial work-related injury from which she needed to recuperate and that her mental illness had 

exacerbated her inability to focus. While section 8122(d)(3) of FECA provides that the time 

limitations for filing a claim do not run against an individual whose failure to comply is excused 

by the Secretary when such notice could not be given because of exceptional circumstances,

15

appellant had not established by the time the last merit decision was issued in this case, July 26, 

2016, that the exceptions relating to inability to file a claim applied in this case. Appellant had not 

established that she was incompetent during the three years following the date of the alleged injury, 

such that an exceptional circumstance excused her failure to timely file a claim.16

The term clear evidence of error is intended to represent a difficult standard.17 It is not 

enough to show that evidence could be construed so as to produce a contrary conclusion. Instead, 

the evidence must shift the weight in appellant’s favor.18 In her untimely request for 

reconsideration, appellant also noted that the employing establishment had closed by the time she 

associated several of her diagnosed conditions to her work. This vague argument, however, does

not raise a substantial question as to the correctness of OWCP’s July 26, 2016 merit decision. The 

magazine articles and medical evidence submitted by appellant with her August 21, 2017 

 

13 D.S., Docket No. 17-0407 (issued May 24, 2017).

14 See L.W., Docket No. 17-1630 (issued June 7, 2018); see also D.G., 59 ECAB 455 (2008); Debra McDavid, 57 

ECAB 149 (2005); Robert F. Stone, 57 ECAB 292 (2005).

15 5 U.S.C. § 8122(d)(3).

16 See R.T., Docket No. 18-1590 (issued February 15, 2019). 

17 See L.H., Docket No. 18-1277 (issued February 22, 2019). 

18 See Leona N. Travis, 43 ECAB 227, 240 (1991).
6

reconsideration request also did not establish that she had filed a timely occupational disease claim 

or that the employing establishment had timely notice of her injury.19

As the evidence submitted does not raise a substantial question concerning the correctness 

of OWCP’s July 26, 2016 merit decision, appellant has 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. 

ORDER

IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 3, 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

 

19 See L.W., supra note 14.