United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.J., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 19-0977

Issued: December 31, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 3, 2019 appellant filed a timely appeal from a February 14, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated July 11, 1997, to the filing of this appeal, 

 

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, it was asserted that oral argument should be granted because OWCP 

failed to timely adjudicate his claim and erred in finding that his condition had resolved. The Board, in exercising its 

discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be addressed 

in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a 

Board decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based 

on the case record as submitted to the Board.
2

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.3

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On June 9, 1995 appellant, then a 31-year-old safety specialist, filed an occupational 

disease claim (Form CA-2) alleging that he sustained stress causally related to factors of his federal 

employment. He noted that he first became aware of his condition and its relation to his federal 

employment on May 15, 1995, and that he stopped work on that same date.

4

By decision dated July 11, 1997, OWCP accepted appellant’s claim for a depressive 

reaction which it found had resolved on August 25, 1995. The decision was accompanied by

appeal rights. 

On December 12, 1997 appellant requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review. By decision dated June 19, 1998, 

OWCP denied his request for a review of the written record as untimely under 5 U.S.C. § 8124(b).

On October 27, 1998 appellant requested reconsideration.

By decision dated December 18, 1998, OWCP denied appellant’s request for 

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

error.5

On January 22, 2019 appellant again requested reconsideration. In a statement dated 

January 9, 2019, he asserted that OWCP had taken 24 months to adjudicate his claim, longer than 

allowed under its procedures. Appellant advised that OWCP had relied upon evidence that was

two years old in finding that he had sustained an injury and that it had resolved. In a January 20, 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the February 14, 2019 decision, OWCP received additional evidence. 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.

4 The employing establishment terminated appellant during his probationary/trial period effective October 2, 1995.

5 Appellant, on June 15, 2004, requested an oral hearing before a representative of OWCP’s Branch of Hearings 

and Review. By decision dated October 26, 2004, OWCP denied appellant’s request for an oral hearing as untimely 

under 5 U.S.C. § 8124(b).
3

2019 statement, he indicated that he had submitted evidence supporting his emotional condition 

claim.

By decision dated February 14, 2019, OWCP denied appellant’s request for 

reconsideration, 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.6 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.7 Timeliness is determined by the document receipt date (i.e.,

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).8 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.9

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

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

decision was in error.10 OWCP’s procedures provide that it 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 request for reconsideration demonstrates “clear evidence of error” on the part of 

OWCP.11 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.12

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

issue which was decided by OWCP.13 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 

 

6 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).

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 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).

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

499 (1990).

11 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 8 at Chapter 2.1602.5 (February 2016).

12 J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

13 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).
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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

OWCP’s 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 demonstrates 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.15 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.16

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

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.17 As appellant’s request for reconsideration was 

not received until January 22, 2019, more than one year after the issuance of OWCP’s July 11, 

1997 decision, it was untimely filed. Consequently, he must demonstrate clear evidence of error

by OWCP in its July 11, 1997 decision.18

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

that was decided by OWCP.19 The evidence must be positive, precise, and explicit and it must be 

apparent on its face that OWCP committed an error.20 

On reconsideration, appellant contended that OWCP had taken 24 months to adjudicate his 

claim, longer than allowed under its procedures. The underlying issue of the case, however, is 

whether appellant had continued residuals due to his accepted employment injury after 

August 25, 1995. This question is medical in nature and must be addressed by medical evidence.21 

 

14 C.M., Docket No. 19-1211 (issued August 5, 2020).

15 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).

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

17 20 C.F.R. § 10.607(a).

18 Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

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

20 Id.

21 See D.V., Docket No. 19-0588 (issued August 5, 2019).
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In order to demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue which was decided by OWCP.22

Appellant further asserted that OWCP relied upon evidence that was two years old in 

finding that his injury had resolved. He also indicated that OWCP had misidentified his medical 

provider and that his providers had been unable to contact OWCP. Appellant did not, however, 

cite to any specific error by OWCP in determining that his condition had resolved or submit new 

and relevant evidence. As noted, the term clear evidence is a difficult standard.23 It is not enough 

to show that the evidence could be construed to produce a contrary conclusion. Instead, the 

evidence must shift the weight in appellant’s favor.24 None of appellant’s arguments demonstrate 

that OWCP erred in finding that his emotional condition had resolved as of August 25, 1995. He 

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.25

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

 

22 See M.W., Docket No. 17-0892 (issued May 21, 2018).

23 See T.T., Docket No. 19-1624 (issued October 28, 2020); R.M., Docket No. 18-1393 (issued February 12, 2019).

24 See A.M., Docket No. 20-0143 (issued October 28, 2020); W.D., Docket No. 19-0062 (issued April 15, 2019).

25 See N.V., Docket No. 20-0781 (issued November 18, 2020).
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ORDER

IT IS HEREBY ORDERED THAT the February 14, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 31, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board