United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVY 

RESERVE FORCES COMMAND, 

Bremerton, WA, Employer

__________________________________________

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Docket No. 19-0666

Issued: October 23, 2019

Appearances: Case Submitted on the Record

John S. Evangelisti, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 4, 2019 appellant filed a timely appeal from a December 10, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated February 16, 2017, to the filing of this appeal, 

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 Appellant retained counsel after the appeal was filed.

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.

FACTUAL HISTORY

On June 21, 2016 appellant, then a 49-year-old program specialist, filed an occupational 

disease claim (Form CA-2) alleging that she sustained an aggravation of psychological distress 

causally related to factors of her federal employment. The employing establishment indicated that 

she had resigned from employment on March 25, 2016.4

In a statement dated July 29, 2016, appellant, through counsel, asserted that the employing 

establishment erred in placing her on a PIP and issuing a notice of unacceptable performance. She 

noted that the employing establishment had subsequently cancelled both the notice of unacceptable 

performance and her placement on a PIP after she filed a grievance. Appellant further maintained 

that management erred in denying her access to her personnel file. She contended that 

management engaged in disparate treatment when it denied her request for “use it or lose it” leave, 

and told her not to respond to e-mails during training. Appellant advised that she had to plan a 

predeployment event without adequate assistance and that from 2007 to 2012 she had worked 

overtime in order to complete her regularly assigned employment duties. In 2012 the employing 

establishment limited her to working 40 hours a week, even though she continued to work overtime 

due to weekend events. M.T. instructed appellant to complete an after action report without 

advance notice that such a report would be required. She maintained that she had experienced 

stress trying to complete her documents, including travel orders, to M.T.’s satisfaction.

By decision dated February 16, 2017, OWCP denied appellant’s emotional condition 

claim. It found that she had not established a compensable employment factor or submitted 

medical evidence containing a diagnosed condition. OWCP concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

On February 16, 2018 appellant submitted medical evidence and additional factual 

evidence. She further submitted an unsigned 29-page statement. Appellant related that it was in 

“reply to the responses my supervisor provided and the questions you so far presented....” She 

summarized the attachments submitted. Appellant quoted OWCP’s findings in its February 16, 

2017 decision. Below the quotes, she provided her rebuttal to OWCP’s determinations and cited 

attachments which she asserted supported her allegations.

Appellant related that she had filed a discrimination claim that was settled favorably and 

that the Office of Personnel Management (OPM) had approved her application for disability 

 

4

In a statement dated November 18, 2014, submitted in connection with another OWCP file number, M.T., a 

commander and appellant’s supervisor, advised that a support specialist contract position was vacant April through 

August2014, but that appellant had no additional demands placed upon her due to the vacancy. He advised that she 

was currently on a performance improvement plan (PIP) and had to ask him if she wanted assistance from a contractor. 

M.T. related that appellant was off work on sick leave for three weeks and that he had provided her with a week to 

adjust when she returned to work. She maintained that her workload was excessive because of planning for a program 

event and meeting the requirements of the PIP, which M.T. advised constituted her work duties.
3

retirement. She contended that M.T. had lied in his responses to OWCP and described actions 

taken by M.T., including making false accusations against her in September 2014, issuing a 

proposed suspension on September 24, 2014, placing her on a PIP on September 24, 2014 without 

prior notice of unsatisfactory job performance, denying her request for her personnel file, and 

denying her requests for assistance with her program. Appellant maintained that M.T. had 

expanded her job duties under the PIP and had assigned her an unreasonable amount of work, 

including completing orders for all service members and their families. Management also refused

to grant her request for leave without pay (LWOP). Appellant noted that the employing 

establishment subsequently cancelled her proposed five-day suspension and placement on a PIP. 

She related that she resigned on March 26, 2016 to retire on disability.

Appellant challenged OWCP’s findings in its February 16, 2017 decision. She contended 

that her placement on a PIP was discriminatory and constituted error by the employing 

establishment. Appellant maintained that management committed error in refusing to grant her 

leave request and marking her as absent without leave (AWOL), noting that it was later changed 

to LWOP. She advised that M.T. refused to allow her help from the contractor specifically hired 

to assist her with her duties and refused to reasonably accommodate her for her disability. 

Management limited appellant, but not her coworkers, to 40 hours a week except when she had 

weekend events even though she was on a maxi schedule. M.T. assigned her an after action report 

and requested repeated revisions of the report to show her inability to perform the duties of her 

position. He also denied her access to her personnel file against regulations. Appellant advised 

that she had a work laptop but had never taken it to events. She asserted that she had generated 

travel orders for reservists and spouses from April through June 2014, in contradiction to M.T.’s 

assertion.

Appellant submitted additional evidence, including a November 12, 2014 letter from the 

employing establishment suspending her for five days.

On October 9, 2015 the employing establishment cancelled the notice of unacceptable 

performance and placement of appellant on a PIP. 

Appellant also submitted an e-mail from M.T. requesting revisions to a memorandum and 

a March 27, 2015 letter indicating that he was designating her as AWOL effective March 27, 2015.

She further submitted a November 2, 2014 letter regarding leave usage, copies of her PIP 

requirements, an October 14, 2017 letter extending her PIP and modifying performance 

expectations, and an October 3, 2014 letter submitted in response to a proposed suspension. 

Appellant also submitted a letter from an individual confirming that she wrote travel orders.

The record contains a portion of a March 2016 settlement agreement between appellant 

and the employing establishment regarding an Equal Employment Opportunity (EEO) complaint. 

The employing establishment agreed to pay her representative, remove disciplinary action from 

her personnel file, cooperate with her application for disability retirement, and change her AWOL 

status to LWOP pending receipt of her resignation. Appellant agreed to withdraw her 

discrimination complaint.

On September 11, 2018 counsel requested the status of appellant’s February 2018 request 

for reconsideration. In a September 14, 2018 response, OWCP advised that it had received 
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numerous documents subsequent to its February 16, 2017 decision, but not a request for 

reconsideration.

In response to a November 15, 2018 telephone call from appellant, OWCP advised that she 

should submit a clear request for reconsideration. 

On November 26, 2018 appellant requested reconsideration. 

By decision dated December 10, 2018, OWCP denied appellant’s request for 

reconsideration finding that 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.5

OWCP, through regulation, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is filed within one year of the date of that decision. 6 The 

one-year period for requesting reconsideration begins on the date of the original OWCP decision, 

but the right to reconsideration within one year also accompanies any subsequent merit decision 

on the issues, including any merit decision by the Board.7 Timeliness is determined by the 

document receipt date (i.e., the “received date” in OWCP’s integrated Federal Employees’

Compensation System.)

8

 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.9

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.10 

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

 

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607(a); see also D.G., Docket No. 18-1038 (issued January 23, 2019).

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

8

Id. at Chapter 2.1602.4(b) (February 2016).

9

See R.L., Docket No. 18-0496 (issued January 9, 2019).

10 See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).
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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.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’s request for 

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

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 

until November 26, 2018, more than one year after the issuance of its February 16, 2017 decision, 

it was untimely filed. Consequently, she must demonstrate clear evidence of error by OWCP in 

its February 16, 2017 decision.19

On appeal counsel contends that the correspondence OWCP received on February 16, 2018 

constituted a request for reconsideration. OWCP’s procedures provide, regarding reconsideration 

requests, “While no special form is required, the request must be in writing, be signed and dated 

by the claimant or authorized representative, and be accompanied by relevant new evidence or 

 

11 Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 7at Chapter 2.1602.5(a) (February 2016).

12 G.G., supra note 10.

13 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra 9.

14 E.B., Docket No .18-1091 (issued December 28, 2018).

15 J.W., Docket No. 18-0703 (issued November 14, 2018).

16 P.L., Docket No. 18-0813 (issued November 20, 2018).

17 W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

18 20 C.F.R. § 10.607(a).

19 Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April26, 2016).
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argument not previously considered.”

20

 Appellant did not sign the February 16, 2018 

correspondence, and thus it fails to meet the requirements for a valid reconsideration request. 21

The Board further finds that appellant has not demonstrated clear evidence of error on the 

part of OWCP in issuing its February 16, 2017 decision. The evidence and argument she submitted 

failed to raise a substantial question concerning the correctness of OWCP’s decision.22 Appellant 

asserted that she had received a favorable decision on her discrimination claim. She submitted 

part of a March 2016 settlement agreement in which the employing establishment agreed to pay 

attorney’s cost, removal of all disciplinary action from her personnel file, cooperate with her 

application for disability retirement, and change her AWOL status to LWOP pending receipt of 

her resignation. The portion of the settlement in the record, however, does not contain an 

admission of fault by the employing establishment or otherwise demonstrate that OWCP 

committed an error in denying appellant’s claim.23 Appellant has thus not explained how this 

evidence was positive, precise, and explicit in manifesting on its face that OWCP committed an 

error in denying her emotional condition claim.24

Appellant submitted a statement addressing OWCP’s findings in its February 16, 2017 

decision. She contended that management erred and discriminated against her in marking her as 

AWOL, limiting her work hours, and placing her on a PIP. Appellant further alleged that M.T. 

refused to permit a contractor to help her even though the contractor was hired for that purpose, 

refused to reasonably accommodate her disability, unreasonably requested multiple revisions on 

an after action report, denied her access to her personnel file, and erroneously denied that she 

generated travel orders for reservists and spouses from April through July 2014. She submitted 

e-mails from M.T. requesting revisions to a memorandum, a March 27, 2017 letter classifying her 

as AWOL, letters regarding her PIP, and letters regarding a proposed suspension and leave usage. 

Appellant did not, however, explain how her arguments or the evidence submitted raised a 

substantial question regarding the correctness of OWCP’s February 16, 2017 decision. As noted,

the term clear evidence is a difficult standard.25 It is not enough to show that the evidence could 

be construed to produce a contrary conclusion.26 None of the evidence manifests on its face that 

OWCP committed an error in denying appellant’s emotional condition claim. Appellant has not 

submitted evidence of sufficient probative value to raise a substantial question as to the correctness 

of OWCP’s decision. Thus, the evidence is insufficient to demonstrate clear evidence of error. 27

 

20 Federal (FECA) Procedure Manual, supra note 7at Chapter 2.1602.2(a) (October 2011).

21 Id.

22 See P.T., Docket No. 18-0494 (issued July 9, 2018).

23 See W.R., Docket No. 18-1042 (issued February 12, 2019).

24 See M.B., Docket No. 17-1505 (issued January 9, 2018).

25 R.M., Docket No. 18-1393 (issued February 12, 2019).

26 W.D., Docket No. 19-0062 (issued April15, 2019).

27 Id.
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On appeal counsel argues that OWCP failed to address her allegations of overwork. As 

noted, however, the Board does not have jurisdiction over the merits of the claim. Appellant has 

not presented evidence or argument that raises a substantial question as to the correctness of 

OWCP’s decision for which review is sought.28

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.

ORDER

IT IS HEREBY ORDERED THAT the December 10, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

28 R.T., Docket No. 14-0779 (issued August 22, 2014).