United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

U.C., Appellant

and

NUCLEAR REGULATORY COMMISSION, 

REGION I, King of Prussia, PA, Employer

__________________________________________

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Docket No. 19-1753

Issued: June 10, 2020

Appearances: Case Submitted on the Record

Analese B. Dunn, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 20, 2019 appellant, through counsel, filed a timely appeal from a March 8, 2019 

nonmerit decision of the Office of Workers’ Compensation Program (OWCP). As more than one 

year has elapsed from OWCP’s last merit decision, dated August 18, 2006, to the filing of this 

appeal,2 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 the 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 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). 

3 5 U.S.C. § 8101 et seq.
2

ISSUE

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

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.

On March 31, 2005 appellant, then a 62-year-old former reactor systems engineer, filed an 

occupational disease claim (Form CA-2) alleging that he suffered “a mysterious illness” resulting 

in multiple medical conditions due to exposure to radiation while in the performance of duty. He 

indicated that he first became aware of his conditions and their relationship to his federal 

employment on April 25, 2002. Appellant retired on disability effective January 28, 2000.

By decision dated March 10, 2006, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that his multiple medical conditions were caused, 

aggravated, accelerated or precipitated by factors of employment, as alleged 

On April 8, 2006 appellant requested a review of the written record by an OWCP hearing 

representative and submitted additional evidence. The employing establishment acknowledged

that appellant had repeatedly visited reactor sites in the performance of his duties, but the dosimetry 

readings supported only minimal, if any exposure. 

By decision dated August 18, 2006, an OWCP hearing representative affirmed the 

March 10, 2006 OWCP decision. 

On August 21, 2007 appellant requested reconsideration. He submitted numerous 

arguments and submitted multiple documents, including medical reports. 

In a September 6, 2007 letter to the employing establishment, OWCP noted that appellant 

had filed a request for reconsideration which warranted a merit review. The employing 

establishment was invited to submit any pertinent supporting evidence or arguments within 20 

days. No response was received from the employing establishment.

By decision dated November 19, 2007, OWCP denied appellant’s request for 

reconsideration of the merits of the claim. It found the medical evidence was repetitious and/or 

irrelevant to the matter at hand and the reconsideration request neither raised substantive legal 

questions nor included new and relevant evidence sufficient to warrant a review of the August 18, 

2006 decision. 

 

4 Docket No. 16-0855 (issued December 8, 2017). 
3

On March 4, 2008 OWCP received appellant’s February 26, 2008 letter requesting the 

status of his request for reconsideration of the August 18, 2006 denial of his claim. In a March 10, 

2008 letter, it advised him that it had issued its decision on November 19, 2007. 

On June 4, 2014 appellant requested reconsideration. He alleged that he never received 

OWCP’s November 19, 2007 decision. Appellant provided additional arguments and new 

evidence. OWCP did not address the request for reconsideration at that time. 

In letter received by OWCP on June 25, 2015, appellant again asserted that he never 

received the November 19, 2007 decision or any response to his letter asking the status of it. 

Additional evidence and arguments were submitted. OWCP treated this correspondence as a 

request for reconsideration. 

By decision dated September 23, 2015, OWCP denied appellant’s reconsideration request 

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

that he had not provided evidence to support his contentions that an error was committed by OWCP

in its August 18, 2006 decision. 

On March 17, 2016 appellant, through counsel, filed an appeal with the Board. By decision 

dated December 8, 2017, the Board affirmed OWCP’s September 23, 2015 nonmerit decision.5 

The Board found the record devoid of evidence to rebut the presumption that appellant had 

received OWCP’s November 19, 2007 nonmerit decision in due course. The Board also found 

that OWCP properly denied his request for reconsideration at it was untimely filed and that the 

evidence and arguments failed to demonstrate clear evidence of error of OWCP’s August 18, 2006 

decision. With regard to evidence previously of record, the Board found that appellant failed to 

explain how such evidence raised a substantial question as to the correctness of OWCP’s decision. 

Additionally, the new evidence neither addressed the cause of his condition, nor related his 

symptoms to a work event, exposure to radiation. 

On December 10, 2018 appellant requested “reconsideration” of the Board’s December 8, 

2017 decision.6 Counsel argued that OWCP’s hearing representative erred in denying appellant’s 

claim in the August 18, 2006 decision, which he acknowledged was the last merit decision in 

appellant’s case file. He argued that the hearing representative did not analyze the evidence per 

the “relative circumstances -- unknown etiology” physician and relied upon speculative employing 

establishment information. Counsel set forth medical evidence he believed that established the 

causal relationship component of the claim and identified evidence which he deemed speculative 

pertaining to the amount of appellant’s radiation exposure and causal relationship.

 

5

Id. The Board denied appellant’s petition for reconsideration of its December 8, 2017 decision on 

August 21, 2018. The Board’s decision dated December 8, 2017 therefore became final 30 days after issuance and is 

not subject to further review. 20 C.F.R. § 501.6(d). See P.H., Docket No. 19-1354 (issued March 13, 2020); G.G., 

Docket No. 18-1074 (issued January 7, 2019).

6

Id. On August 24, 2018 the Board issued an Order Dismissing Appeal as the Clerk of the Appellate Boards 

inadvertently assigned a new docket number to a petition for reconsideration of the Board’s December 8, 2017 

decision in Docket No. 16-0855. See Docket No. 18-0471 (issued August 24, 2018).
4

Counsel further contended OWCP erred in its November 19, 2007 decision denying 

appellant’s reconsideration request without conducting a merit review. She indicated that 

appellant had provided timely, new, relevant, and pertinent evidence, which required a merit 

review. Counsel set forth the medical evidence he deemed pertinent which warranted a merit 

review. She also contended that OWCP’s September 6, 2007 letter to the employing establishment 

specifically noted that, a merit review would be conducted, but as no merit review was provided, 

this violated the procedural requirement to perform a merit review after the evidence warranted a 

merit review and development of the evidence had begun. Counsel noted the November 19, 2007 

decision contradicted the September 6, 2007 determination that a merit review was warranted. She 

also asserted that his December 5, 2018 letter requesting reconsideration was within one year of 

the December 8, 2017 decision.

By decision dated March 8, 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.7 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.8 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.9 Timeliness is determined by the document receipt date (i.e., the “received date” in 

OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).10 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.11

OWCP may not deny a request for reconsideration solely because it was not timely filed. 

When a request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether the request demonstrates clear evidence of error.12 OWCP’s 

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

 

7 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).

8 20 C.F.R. § 10.607(a).

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

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

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

12 See 20 C.F.R. § 10.607(b); G.G., supra note 5.
5

notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s 

request for reconsideration demonstrates clear evidence of error on the part of OWCP.13

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.14 The Board 

notes that clear evidence of error is intended to represent a difficult standard.15 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

demonstrate clear evidence of error.16 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.17 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.18 In this regard, the Board will limit its focus to a review of how the newly 

submitted evidence bears on the prior evidence of record.19 The Board makes an independent 

determination as to whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.20

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 last merit OWCP decision issued in this case was dated August 18, 2006. Appellant’s 

latest request for reconsideration was received by OWCP on December 10, 2018 which postdated 

OWCP’s August 18, 2006 merit decision by over 12 years. Because more than one year elapsed 

since the last merit decision, his December 10, 2018 request for reconsideration was untimely

filed.

21

 Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in 

determining that he failed to establish a medical condition causally related to the claimed 

exposure.

22

 

13 Id. at § 10.607(b); supra note 9 at Chapter 2.1602.5(a) (February 2016).

14 G.G., supra note 5.

15 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 11.

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

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

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

19 See F.D., Docket No. 19-1663 (issued March 10, 2020); A.F., 59 ECAB 714 (2008); D.G., 59 ECAB 455 (2008).

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

21 20 C.F.R. § 10.607(a); F.D., see supra note 19.

22 Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).
6

The Board’s decision of December 8, 2017 affirmed OWCP’s September 23, 2015 

nonmerit decision which denied appellant’s request for reconsideration as it was untimely filed 

and failed to demonstrate clear evidence of error. On appeal and before OWCP counsel argued 

that appellant had timely requested reconsideration following the Board’s December 8, 2017 

decision. OWCP procedures require that a request for reconsideration be received within one year 

of a merit decision. A right to reconsideration within one year accompanies any subsequent merit 

decision on the issues. This includes any merit decision by the Board.

23

 However, the 

December 8, 2017 decision of the Board was not a merit decision and therefore did not extend the 

one year time limitation. 

OWCP denied appellant’s claim finding that he did not meet his burden of proof to 

establish a medical condition causally related to the claimed exposure. On August 18, 2006 an 

OWCP hearing representative affirmed the denial of appellant’s occupational disease claim as he 

had not established that the amount of radiation he was exposed to was sufficient to establish his 

diagnosed conditions. The hearing representative specifically found that none of the physicians 

who noted a causal relationship were provided with the official dosimetry records and the evidence 

of record did not substantiate that appellant had excessive radiation exposure or long-term 

radiation exposure. Counsel argued that the hearing representative failed to analyze the evidence 

per the “relative circumstances -- unknown etiology” doctrine and relied upon speculative 

employing establishment information. While she set forth medical evidence he believed 

established the causal relationship component of the claim, counsel failed to explain how such 

evidence raised a substantial question as to the correctness of OWCP’s decision.24 Evidence that 

does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient 

to demonstrate clear evidence of error.25 It is not enough merely to establish that the evidence 

could be construed so as to produce a contrary conclusion.26 Further, while counsel deemed the 

employing establishment’s letters and evidence as speculative pertaining to the amount of 

appellant’s radiation exposure and causal relationship, she also did not explain how this argument 

raised a substantial question as to the correctness of OWCP’s August 18, 2006 decision which 

relied on official dosimetry records. Appellant submitted no other factual documents in support 

of his argument that, on their face, demonstrated that OWCP’s denial of the claim was erroneous 

or raised a substantial question as to the correctness of OWCP’s determination.27 The Board has 

held that the term clear evidence of error is intended to represent a difficult standard.28 As such, 

the Board finds that this argument is insufficient to demonstrate clear evidence error in OWCP’s 

August 18, 2006 decision.

Counsel offered arguments regarding alleged error in OWCP’s November 19, 2007 

decision denying reconsideration without merit review. The Board noted in its December 8, 2017 

 

23 T.N., Docket No. 18-1613 (issued April 29, 2020); supra note 9 at Chapter 2.1602.4 (February 2016).

24 F.D., see supra note 19. 

25 Supra note 16.

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

27 See P.O., Docket No. 13-0092 (issued April 4, 2013).

28 M.P., supra note 15.
7

decision that the underlying issue was whether appellant had established clear evidence of error in 

the last merit decision dated August 18, 2006. Counsel argued that OWCP erred in not providing 

a merit review contradicted a September 6, 2007 letter to the employing establishment that a merit 

review was warranted; and the November 19, 2007 decision used an incorrect standard of review 

by requiring substantive evidence to warrant a merit review. While OWCP’s September 6, 2007 

letter to the employing establishment indicated that appellant’s application for reconsideration 

warranted a merit review of the case, this letter, on its face, does not show clear evidence of error 

of OWCP’s August 18, 2006 decision. Furthermore, counsel’s arguments pertaining to the 

evidence submitted and the standard of review does not demonstrate that OWCP’s denial of 

appellant’s claim was erroneous or raise a substantial question as to the correctness of OWCP’s 

August 18, 2006 denial of appellant’s claim. As noted, the term clear evidence of error is intended 

to represent a difficult standard.29 Additionally, this evidence was before the Board at the time of 

its last decision. 

The Board finds that appellant has not raised an argument or submitted positive, precise, 

and explicit evidence that manifests on its face that OWCP committed an error in the denial of his 

claim.30 Appellant has therefore not provided evidence of sufficient probative value to raise a 

substantial question as to the correctness of OWCP’s August 18, 2006 decision. Thus, the Board 

finds that the request failed to demonstrate clear evidence of error.31

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.

 

29 Id.

30 See J.V., Docket No. 18-0963 (issued February 13, 2020); S.P., Docket No. 17-1708 (issued February 23, 2018).

31 See G.B., Docket No. 19-1762 (issued March 10, 2020); M.P., Docket No. 19-0674 (issued December 16, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 10, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board