United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.A., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, San Francisco, CA, Employer

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Docket No. 19-0471

Issued: October 29, 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 December 27, 2018 appellant filed a timely appeal from a July 16, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year has 

elapsed from OWCP’s most recent merit decision, dated July 30, 1998,1to 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.

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.

 

1 For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited 

to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(d)(2) 

(2008). 

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 10, 1997 appellant, then a 42-year-old criminal investigator, filed an 

occupational disease claim (Form CA-2) alleging that on July 24, 1997 he first realized that his 

back pain, headaches, anxiety, stress, and insomnia were due to discrimination, retaliation, and 

denial of promotion he experienced while in the performance of his federal employment due to his 

prior EEO complaints. He stopped work on August 4, 1997.

An April 11, 1997 affidavit from C.S., supervisory criminal investigator, denied 

appellant’s allegations of discrimination and retaliation. 

In notes dated August 8 and 25, 1997, Dr. Tony L. Wong, a Board-certified internist, 

diagnosed work-related stress. In the August 25, 1997 note, he attributed appellant’s stress to a 

hostile work environment. In both notes, Dr. Wong advised that he should stop work. In an 

October 9, 1997 report, he indicated that appellant was seen for complaints of stress, anxiety, and 

possible depression. Appellant related frustration with denials of promotion and requests for 

relocation, which he believed was due to racial discrimination, his accent, and his physical 

appearance. Dr. Wong completed an attending physician’s report (Form CA-20) on October 9, 

1997 releasing appellant to return to work on December 4, 1997. Diagnoses included stress, 

anxiety, and depression. Dr. Wong checked a box marked “yes” to the question of whether the 

diagnosed conditions had been caused or aggravated by an employment activity. 

An unsigned October 10, 1997 notice of final Equal Employment Opportunity (EEO) 

counseling report, noted that appellant alleged discrimination based on race, age, national origin, 

and reprisal for filing past EEO complaints. The report detailed appellant’s allegations, records 

reviewed, and summarized personal interviews.

In a November 4, 1997 development letter, OWCP advised appellant that additional factual 

and medical evidence was necessary to establish his claim. It afforded him 30 days to submit the 

necessary evidence.

In a December 28, 1997 report, Dr. John Roumasset, a Board-certified psychiatrist, noted 

that he had treated appellant on five occasions. He diagnosed single episode of depression and 

stressful work situation. Dr. Roumasset noted that appellant began filing EEO complaints about 

two years prior, which he believed resulted in retaliation and lower performance appraisals. 

In a January 7, 1998 report, Dr. Richard B. Ward, a Board-certified internist, diagnosed 

work-related stress and likely depression. He noted appellant’s allegations that his requests for 

transfer were denied due to discrimination and retaliation. Dr. Ward opined that appellant’s 

symptoms had resolved and that he was capable of working without restrictions.

In a January 30, 1998 report, Dr. Kenneth I. Gotlieb, a Board-certified psychiatrist, 

observed that appellant had an obsessive compulsive personality disorder with prominent 

dependent personality traits. Diagnoses included adjustment disorder with depression and anxiety, 

resolved, and stressful work situation regarding transfer/promotion. Dr. Gottlieb concluded that 

appellant could return to work.
3

By decision dated July 30, 1998, OWCP denied appellant’s claim finding that the evidence 

of record was insufficient to establish that his “diagnosed emotional or psychiatric illness arose 

out of and during the course of the performance of his duty as a federal employee.”

On March 23, 2000 appellant requested reconsideration and submitted an August 12, 1999

court order from the United States District Court for the Northern District of California finding 

retaliation and awarding appellant compensatory damages. 

By decision dated March 30, 2000, OWCP denied appellant’s request for reconsideration 

finding that his request was untimely and failed to demonstrate clear evidence of error. 

On May 9, 2018 appellant requested reconsideration alleging that his case had not been 

properly adjudicated following a May 2002 court decision.3 He asserted that the court order issued 

subsequent to OWCP’s adjudication of his claim was sufficient to establish his claim. Appellant

submitted an August 19, 1999 court order awarding him compensatory damages for retaliation and 

emotional distress and a May 28, 2002 court order vacating a May 16, 2000 judgement and 

denying defendant’s motions for a new trial and judgement as a matter of law. The August 19, 

1999 court order contained a checked a box marked “yes” next to the questions of whether 

appellant established retaliation as a motivating factor in his April 1998 officer corps rating system 

(OCORS) rating by a preponderance of the evidence and “yes” to the question of whether appellant 

established that he suffered inconvenience, suffering, mental anguish, emotional pain, loss of 

enjoyment of life, or other nonpecuniary losses from intentional retaliation by the employing 

establishment. The May 28, 2002 court order denied defendant’s motion for a judgement as a 

matter of law and motion for a new trial. The court noted that on May 16, 2000 the court granted 

defendant’s motion for judgement as a matter of law and conditionally granted its request for a 

new trial. The order noted that a jury heard testimony that in April 1998 appellant had been issued 

a lowered OCORS rating and that in September 1998 he was transferred to work at the county jail, 

which had been the first job he held at the employing establishment. On remand, the court found 

the evidence presented at trial sufficient to support the jury’s verdict. Thus, it denied defendant’s 

motion for judgment as a matter of law and motion for a new trial. The clerk of the court was 

instructed to vacate the May 16, 2000 judgment and enter an amended judgment in accordance

with the jury verdict. 

By decision dated July 16, 2018, OWCP denied appellant’s May 9, 2018 reconsideration 

request, finding that it was untimely filed and failed to demonstrate clear evidence of error. 

LEGAL PRECEDENT

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

merit review.4 This discretionary authority, however, is subject to certain restrictions. For 

 

3 Appellant stated that the current claim had been consolidated with OWCP File No. xxxxxx179. However, a 

review of the current record does not contain any memorandum or letter from OWCP indicating that this file had been 

combined with another claim. In OWCP File No. xxxxxx179, OWCP accepted the conditions of aggravation of L5-

S1 herniated disc for a February 2, 2004 employment-related traumatic injury. 

4

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).
4

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

decision for which review is sought.5 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s integrated Federal Employees’ Compensation System). 6 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.7

When an application for review is untimely, OWCP undertakes a limited review to 

determine whether the application demonstrates clear evidence that OWCP’s most recent merit 

decision was in error.8 Its procedures provide that OWCP will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the 

claimant’s application for review demonstrates “clear evidence of error” on the part of OWCP.9 

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears 

on the prior evidence of record.10

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

issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error. Evidence which 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 merely to 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 not only be of sufficient probative value to create a conflict 

in 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

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.

 

5

20 C.F.R. § 10.607(a).

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

7 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).

8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

9 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 6at Chapter 2.1602.5 (February 2016).

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

11 S.C.,Docket No. 18-0126 (issued May 14, 2016); supra note 6at Chapter 2.1602.5(a) (February 2016).

12 J.W, supra note 10; Robert G. Burns, 57 ECAB 657 (2006).
5

OWCP’s regulations13 and procedures14 establish a one-year time limitation for requesting 

reconsideration, which begins on the date of the original OWCP merit decision. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues. 15 

The most recent merit decision was OWCP’s July 30, 1998 decision which found that the evidence 

of record was insufficient to establish an emotional or psychiatric condition in the performance of 

duty. As appellant’s request for reconsideration was not received by OWCP until May 9, 2018, 

more than one year after the July 30, 1998 decision, it was untimely filed.16 Because appellant’s 

request was untimely, he must demonstrate clear evidence of error on the part of OWCP in denying 

his emotional condition claim.

In support of his untimely request for reconsideration, appellant submitted court orders 

dated August 19, 1999 and May 28, 2002. These cursory orders concerned an April 1998 lowered 

OCORS rating and a September 1998 transfer within the employing establishment. This evidence 

fails to address the issue that was before OWCP at the time it issued its July 31, 1998 decision, 

which was whether the evidence submitted was sufficient to establish an emotional or psychiatric 

condition in the performance of duty with respect to allegations of discrimination and retaliation 

in 1997. The evidence submitted addresses allegations that were not part of appellant’s 1997 

workers’ compensation claim. Appellant did not provide positive, precise, and explicit evidence 

to demonstrate that OWCP’s denial of his 1997 claim was in error. Therefore, the Board finds that 

his May 9, 2018 request for reconsideration failed to demonstrate clear evidence of error because 

it did not raise a substantial question regarding OWCP’s July 30, 1998 decision. 

Thus, appellant has not discharged his burden of proof to demonstrate clear evidence of 

error in OWCP’s July 30, 1998 decision denying his claim.

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.

 

13 F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 

247 (2005).

14 Supra note 6at Chapter 2.1602.4 (February 2016);see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15 J.W., supra note 10; Robert F. Stone, 57 ECAB 292 (2005).

16 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
6

ORDER

IT IS HEREBY ORDERED THAT the July 16, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 29, 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