United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.M., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

AIR COMBAT COMMAND, NELLIS AIR 

FORCE BASE, NV, Employer

__________________________________________

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Docket No. 18-1393

Issued: February 12, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 9, 2018 appellant filed a timely appeal from a January 16, 2018 nonmerit decision 

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

OWCP’s last merit decision, dated December 23, 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 the 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 denied appellant’s request for reconsideration as it 

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

FACTUAL HISTORY

On November 10, 2016 appellant, then a 55-year-old substance abuse counseling 

specialist, filed an occupational disease claim (Form CA-2) alleging that she sustained an 

employment-related aggravation of post-traumatic stress disorder (PTSD), anxiety, and 

depression. She asserted that she first became aware of her claimed conditions and their

relationship to her federal employment on November 15, 2013. Appellant was terminated from 

the employing establishment, effective December 13, 2013.

Appellant submitted May 6 and December 13, 2013 notification of personnel action forms 

(Standard Form 50-B) showing her pay as a substance abuse counseling specialist, and core 

personnel documents from 2012 which generally detailed the duties and standards of the position. 

In a November 21, 2016 development letter, OWCP requested that appellant submit 

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

explanation regarding the cause of her claimed emotional condition. It requested that she complete 

and return an attached questionnaire which posed various questions regarding the employmentrelated incidents and conditions which she believed caused or aggravated her claimed condition. 

OWCP afforded appellant 30 days to respond.

3

In a December 1, 2016 letter, the employing establishment challenged appellant’s claim by 

asserting that she filed the claim in an untimely manner and failed to submit adequate supporting 

evidence.

By decision dated December 23, 2016, OWCP denied appellant’s claim for an 

employment-related emotional condition because she failed to establish fact of injury. It found 

that she did not establish compensable employment factors. OWCP indicated that appellant failed 

to provide specific details describing the time, date, place, and nature of the implicated 

employment-related events/conditions. In addition, she failed to provide documenting evidence, 

such as witness statements, in support of her claim.

On December 27, 2017 appellant requested reconsideration of OWCP’s December 23, 

2016 decision. In a December 22, 2017 letter, she indicated that she was submitting a packet of 

documents in support of her claim.

Appellant submitted an undated statement in which she recounted the incidents and 

conditions at work which she believed caused or aggravated her diagnosed emotional conditions. 

She indicated that on May 6, 2013 she started working as a substance abuse counseling specialist, 

a position which involved implementing the Air Force Alcohol and Drug Abuse Prevention and 

 

3 Appellant contacted OWCP by telephone on December 21, 2016 and advised that she would not be able to submit 

additional evidence within 30 days of November 21, 2016. 
3

Treatment (ADAPT) program. Appellant noted that she advised management during the hiring 

process that she had previously been diagnosed with PTSD, but that it failed to offer support when 

her PTSD symptoms accelerated. She alleged that she encountered “general hostility” from the 

ADAPT team members, noting that they were not friendly and would not provide training without 

prompting. Appellant claimed that she was subjected to unstable leadership in that she had seven 

different program managers during the seven months she worked at the employing establishment.

Appellant alleged that there was a three-month delay in providing her with credentials to 

see patients and to access the computer system, a circumstance which she believed adversely 

affected her ability to perform her job. She claimed that management failed to address her work 

overload problems, forced her to work overtime in contradiction of her medical work restrictions, 

and improperly handled pay and leave matters. Appellant indicated that in November 2013 she 

became anxious when she learned that the ADAPT program manager had been arrested for causing 

physical injury to his infant daughter.4 She asserted that supervisors had been very cruel to her 

and unfairly scolded her for work matters such as her perceived inadequacies in using the 

computer. Appellant claimed that she faced hostile reactions from management during a 

November 15, 2013 meeting after she asked for support in performing her work. 

Appellant asserted that management failed to adequately protect her after she was placed 

in serious danger by a patient she was counseling. She claimed that, during a problem solving 

meeting on November 18, 2013, management “shamelessly humiliated” her regarding her personal 

safety concerns. Appellant alleged that she was intimidated by face-to-face meetings with 

managers who unfairly criticized her work performance. She claimed she was wrongly denied 

union representation at an adversarial meeting with supervisors and that management ignored 

communications from her union representative. Appellant asserted that she was improperly 

removed from clinical practice duties in November 2013 and was unfairly terminated from the 

employing establishment in December 2013.

Appellant submitted a number of documents in support of her reconsideration request, 

including e-mails sent to appellant by managers who discussed corrective action/training for lapses 

in her work performance and as well as memoranda in which managers detailed disciplinary 

actions taken against her.

5

 Most of these documents were produced in November and 

December 2013 and primarily discussed appellant’s problems with logging in scheduled 

counseling sessions, completing time card records, maintaining appropriate boundaries with 

patients, and reporting perceived threats to her safety.

In a December 21, 2017 report, Dr. Joseph Hasler, an attending clinical psychologist, 

reported that appellant’s work environment had triggered her PTSD symptoms by recreating many 

 

4 Appellant asserted that this manager told her that he wished to harm three coworkers and that he responded, “I 

don’t think so,” when she asked whether she was in danger.

5 The record contains a November 25, 2013 memorandum removing appellant from clinical practice duties and a 

December 5, 2013 memorandum terminating her from the employing establishment effective December 13, 2013.
4

dynamics from her family life.

6

 Appellant discussed various problems she had at work with her 

managers and a patient that she counseled. Dr. Hasler reported examination findings and 

diagnosed complex PTSD with accompanying depression and anxiety. He generally indicated that 

appellant’s job aggravated her psychological symptoms.

By decision dated January 16, 2018, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that 

appellant submitted documentation in support of her reconsideration request, including an injury 

statement and copies of memoranda/e-mails, but found that this evidence failed to demonstrate 

clear evidence of error in the December 23, 2016 decision denying her emotional condition claim.

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.7

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 

regulations provide that a request for reconsideration must be received within one year of the date 

of its decision for which review is sought.8 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).9 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.10

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.11 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.12

 

6 Appellant also submitted an undated statement in which she discussed aspects from her personal life which had 

caused her stress, including verbal and physical abuse since early childhood by her parents, and a debilitating motor 

vehicle accident which occurred when she was 35 years old.

7 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.607(a).

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

10 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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

12 M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 9 at Chapter 

2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a difficult standard).
5

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 

be manifest on its face that OWCP committed an error.13 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.14

The Board notes that clear evidence of error is intended to represent a difficult standard.15 

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, wellrationalized 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.16 The 

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

of error on the part of OWCP.

17

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.

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 December 27, 2017, more than one year after the

issuance of its December 23, 2016 merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in its December 23, 2016 decision.

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

part of OWCP in its December 23, 2016 decision. 

 

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

14 Robert G. Burns, 57 ECAB 657 (2006).

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

16 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 9 at Chapter 2.1602.5(a) (February 2016).

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

18 See supra note 8.
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 December 23, 2016 decision.19 The 

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

of OWCP’s decision.20 The Board notes that OWCP denied appellant’s claim on a factual basis, 

i.e., the failure to establish any compensable employment factors. Appellant submitted a statement 

in which she discussed the incidents and conditions at work which she believed caused or 

aggravated her diagnosed emotional conditions. She asserted that management mishandled 

numerous aspects of her work through its failure to address her concerns about work overload, 

training, pay/leave matters, union representation, and her personal safety with respect to a manager 

and a patient she counseled. Appellant asserted that she was unfairly criticized and scolded for 

her work performance and was subjected to improper disciplinary actions, including her 

termination in December 2013.

The Board notes, however, that appellant did not explain how this argument raised a 

substantial question as to the correctness of OWCP’s December 23, 2016 decision. Appellant 

submitted a number of documents, in support of her reconsideration request, including e-mails sent 

to appellant by managers who discussed corrective action/training for lapses in her work 

performance as well as memoranda in which managers detailed disciplinary actions taken against 

her. However, the Board has reviewed these documents and none of them are sufficient to establish 

an employment factor or otherwise show clear evidence of error in OWCP’s December 23, 2016 

decision.

Appellant submitted a December 21, 2017 report in which Dr. Hasler, an attending clinical 

psychologist, noted that appellant reported that her work environment had triggered her PTSD 

symptoms. Dr. Hasler diagnosed complex PTSD with accompanying depression and anxiety, and 

he generally indicated that appellant’s job aggravated her psychological symptoms. The Board 

notes, however, that the submission of this report does not establish clear evidence of error in 

OWCP’s December 23, 2016 decision. As previously noted, the underlying issue of this case is 

not medical in nature. Rather it is factual in nature because appellant’s emotional condition claim 

was denied on December 23, 2016 due to her failure to establish any compensable employment 

factors. Even if employment factors were established and an evaluation of the medical evidence 

was undertaken, Dr. Hasler’s December 21, 2017 report would not tend to raise a substantial 

question concerning the correctness of OWCP’s December 23, 2016 decision.21 

The Board finds that appellant’s request for reconsideration does not show on its face that 

OWCP committed error when it found in its December 23, 2016 decision that appellant failed to 

 

19 See supra note 13.

20 See supra notes 14.

21 See supra notes 18 and 19 regarding the consideration of medical evidence in an emotional condition claim.
7

establish an employment-related emotional condition.

22

 As noted, clear evidence of error is 

intended to represent a difficult standard.23

For these reasons, OWCP properly determined that appellant 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 January 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 12, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

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

23 See supra note 11.