United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS BENEFITS ADMINISTRATION, 

Richmond, KY, Employer

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Docket No. 19-0062

Issued: April 15, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 9, 2018 appellant filed a timely appeal from an April 9, 2018 nonmerit decision 

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

from the last merit decision, dated November 2, 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.

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.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On June 8, 2015 appellant, then a 46-year-old social scientist, filed an occupational disease 

claim (Form CA-2) alleging that her exposure to a hostile work environment aggravated her

depression and anxiety, which caused physical manifestations in her body resulting in irritable 

bowel syndrome and restless legs. 

In support of her claim, appellant submitted a narrative statement dated June 11, 2015 

indicating that she was first diagnosed with depression and anxiety on or around 2009. She 

claimed that she was harassed by three people, W.L., Director of Eastern Kentucky University’s 

(EKU) Office of Military and Veterans Affairs (OMVA), J.L., the Chief Vocational Rehabilitation 

& Employment Officer, and T.B., appellant’s supervisor. Appellant stated that they yelled at her 

in front of other people at work and left her isolated in a building without telling her that the office 

was being closed. She alleged four compensable employment factors including: (1) a 

January 2011 meeting with an assistant director to discuss issues and who suggested mediation, 

which was not agreed to by J.L., and working with an Equal Employment Opportunity counselor 

to resolve appellant’s issues at work; (2) during the performance evaluation period of 2011, 

appellant disagreed with her overall rating which caused her stress, she submitted a rebuttal 

memorandum, and was awarded a higher rating; (3) T.B., informed appellant about an EKU 

allegation that she was trying to change the university grading system and that EKU made 

additional allegations to OMVA; and (4) a five-week period of investigation was conducted, per

J.L., from July to August 2014, which resulted in appellant’s temporarily being reassigned to the 

Lexington, KY office, which was 37 miles away (one way) from her workstation and required an 

additional two-hour, daily round trip commute. 

Appellant further alleged that the following work incidents occurred: (1) in most of 2011, 

she experienced ongoing managerial problems between J.L. and herself, where J.L. was hostile 

towards her in most of her interaction and treated her unfairly and differently that she had others, 

which caused her frequent abdominal pain and bouts of fainting spells; (2) a couple of medicinal 

manifestations began to exhibit themselves, which resulted in her having multiple tests to identify 

medical problems, resulting in her physician offering her gall bladder surgery since she continued 

to experience abdominal pain; (3) from December 2014 through May 2015, various problematic 

interactions continued to increase between appellant and the EKU OMVA staff, primarily with

W.L., where she informed J.L. and T.B. via e-mail and telephone calls regarding her issues and 

concerns; and (4) appellant sent an e-mail to management on May 5, 2015 stating, “I was working 

in a hostile work environment and asked for their help that week and immediately” and the 

following week sent an e-mail to J.L. asking her to please let her know what steps had been taken 

to resolve her hostile work environment with W.L. 

In a May 29, 2015 report, Dr. J. Yun Kim, an emergency medicine specialist, noted that 

appellant was seen with reported history of restless leg syndrome and presented relating pain in 

her legs and spasms that had been ongoing for the past several months. Appellant related increased 

stress at work as a possible etiology. Dr. Kim diagnosed bilateral leg pain, restless leg syndrome. 

On July 3, 2015 Dr. Betsy Ederer and Dr. Monnica Williams, licensed clinical 

psychologists, diagnosed post-traumatic stress disorder, major depressive disorder (recurrent, 

severe), panic disorder without agoraphobia, and “target of adverse discrimination or persecution.” 
3

They opined that appellant’s current symptoms and difficulties were a result of ongoing work

harassment and a hostile work environment and advised that she was not capable of returning to 

work. 

By decision dated December 10, 2015, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish a compensable employment factor. As such, it did 

not review or consider the medical evidence of record.

On January 12, 2016 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held before an OWCP hearing representative on 

August 31, 2016. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. 

In response, appellant submitted a September 20, 2016 addendum report from Drs. Ederer 

and Williams reiterating their medical opinions. 

By decision dated November 2, 2016, OWCP’s hearing representative affirmed the prior 

decision finding that appellant had failed to establish a compensable employment factor. 

On March 16, 2018 appellant requested reconsideration. She submitted a January 28, 2018 

narrative statement alleging that OWCP’s hearing representative failed to conduct the oral hearing 

in a professional manner, was dismissive of the facts, and did not afford her and her union 

representative an opportunity to ask pertinent questions. Appellant further alleged that she did not 

believe that all of the factual and medical evidence submitted had been reviewed by OWCP and 

argued that it seemed that OWCP’s system was severely flawed, highly insensitive towards 

applicants like her, and had penalized her because she had exercised her right to file a claim. She

further submitted documentation regarding a State of Kentucky workers’ compensation claim she 

had filed. 

By decision dated April 9, 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 

her letter expressed her perception that OWCP was against her, but failed to present evidence to 

demonstrate that OWCP had committed an error at the time of the issuance of its decision. OWCP

further found that the paperwork from Kentucky’s Workers’ Compensation Appeals Board failed 

to demonstrate that OWCP committed an error as it was a separate entity from the federal 

government. 

LEGAL PRECEDENT

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

merit review.2 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 

 

2

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

March 16, 2009).
4

decision for which review is sought.3 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.4 Imposition of this one-year filing limitation does not 

constitute an abuse of discretion.5

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

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.

6

 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.7

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.8

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 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.9 

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

evidence of error on the part of OWCP.10

 

3 20 C.F.R. § 10.607(a).

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

5 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. 

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

6 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). 

7

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

supra note 4 at Chapter 2.1602.5 (February 2016).

8

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

9

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (February 2016).

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

The most recent merit decision was OWCP’s hearing representative’s November 2, 2016 

decision. Appellant had one year from the date of that decision to make a timely request for 

reconsideration. Since her request was not received by OWCP until March 16, 2018, it was filed 

outside the one-year time period.11 As appellant’s March 16, 2018 request for reconsideration was 

received more than one year after the November 2, 2016 merit decision, it was untimely filed. 

Consequently, she must demonstrate clear evidence of error by OWCP in the denial of her claim.12

In the November 2, 2016 decision, OWCP’s hearing representative denied appellant’s 

emotional condition claim, finding that appellant had failed to establish a compensable 

employment factor. In support of her untimely request for reconsideration, appellant submitted a 

January 28, 2018 narrative statement alleging that OWCP’s hearing representative unfairly upheld 

the initial decision denying her claim. She further alleged that she did not believe that all of the 

factual and medical evidence submitted had been reviewed by OWCP and that it was highly 

insensitive towards applicants like her, and had penalized her because she had exercised her right 

to file a claim. This evidence fails to address the issue that was before OWCP at the time it issued 

its November 2, 2016 decision, which was whether the evidence submitted was sufficient to 

establish a compensable factor of her federal employment. Appellant has provided no evidence to 

demonstrate that OWCP acted improperly or failed to review the evidence she submitted in support 

of her claim. Therefore, the Board finds that this narrative statement does not demonstrate clear 

evidence of error because it does not show that OWCP committed an error in denying appellant’s 

emotional condition claim, nor raise a substantial question as to the correctness of OWCP’s 

decision.

Appellant further submitted documentation regarding her case before the Kentucky 

Workers’ Compensation Appeals Board. This evidence fails to constitute probative evidence 

establishing that she actually experienced the employment factors alleged to have caused injury. 

Therefore, the Board also finds that this documentation does not demonstrate clear evidence of 

error because it does not show that OWCP committed an error in denying appellant’s emotional 

condition claim, nor does it raise a substantial question as to the correctness of OWCP’s decision.

To demonstrate clear evidence of error, it is insufficient merely to show that the evidence 

could be construed so as to produce a contrary conclusion. The term clear evidence of error is 

intended to represent a difficult standard.13 None of the evidence submitted manifests on its face 

that OWCP committed an error in denying appellant’s emotional condition claim. Appellant has 

not otherwise submitted evidence of sufficient probative value to raise a substantial question as to 

 

11 Supra notes 3 and 4.

12 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

13 Supra note 4 at Chapter 2.1602.5.a (February 2016); see Dean D. Beets, 43 ECAB 1153 (1992). 
6

the correctness of OWCP’s decision. Thus, the evidence is insufficient 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 April 9, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board