United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, ROSELAND POST 

OFFICE, Chicago, IL, Employer

__________________________________________

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Docket No. 21-0597

Issued: February 7, 2022

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 March 3, 2021 appellant filed a timely appeal from a September 8, 2020 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a Board decision dated December 15, 2006, which became final 30 days after 

issuance, and is not subject to further review.1 As there was no merit decision by OWCP within 

180 days of 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, 

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

1

20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On February 11, 2005 appellant, then a 47-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained acute bronchitis, carbon 

monoxide poisoning, silicosis, and a chronic upper respiratory condition due to factors of her 

federal employment, including occupational exposures to silica dust, floor cleaning chemicals

containing ethyl compounds, and diesel exhaust fumes. She noted that she first became aware of 

her conditions on January 3, 2005 and realized their relation to her federal employment on 

January 20, 2005. Appellant stopped work on January 20, 2005.

Appellant submitted December 7 and 14, 2001, and March 24, 2003 employing 

establishment environmental studies documenting the presence of carbon monoxide and trace 

silica dust below permissible exposure limits. She also provided medical reports and diagnostic 

test results dated January 6, 1999 through May 12, 2005 supporting diagnoses of chest pain, 

shortness of breath, atelectasis in the base of the right lung, pharyngitis, and bronchitis. On 

May 26, 2005 OWCP received a January 7, 2002 letter from the employing establishment 

confirming its use of specific chemical floor cleaners. The employing establishment submitted a 

June 20, 2005 statement noting that it utilized a non-alkaline floor cleaner every other day.

By decision dated June 22, 2005, OWCP accepted that appellant had been exposed to the 

substances documented by the environmental studies and employing establishment statements. 

However, it denied the claim, finding that the medical evidence of record was insufficient to

establish causal relationship between the accepted exposure and the claimed respiratory 

conditions.

On July 18, 2005 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review, held on March 30, 2006. She subsequently submitted additional 

medical evidence.

By decision dated May 22, 2006, OWCP’s hearing representative affirmed the prior 

decision. Appellant appealed to the Board.

By decision dated December 15, 2006,4the Board affirmed OWCP’s May 22, 2006 

decision.

On December 19, 2008 appellant requested reconsideration.

3 Docket No. 18-1765 (issued June 11, 2019); Docket No. 17-1682 (issued January 18, 2018); Docket No. 15-1679 

(issued December 14, 2015); Docket No. 12-0948 (issued November 28, 2012); Docket No. 09-2374 (issued June17, 

2010); Docket No. 06-1980 (issued December 15, 2006).

4

Id.
3

By decision dated April 3, 2009, OWCP denied appellant’s request for reconsideration, 

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

appealed to the Board.

By decision dated June 17, 2010,5the Board affirmed OWCP’s April 3, 2009 decision.

On June 14, 2011 appellant again requested reconsideration.

By decision dated September 21, 2011, OWCP denied reconsideration, finding that 

appellant’s June 14, 2011 request neither raised substantive legal questions nor included new and

relevant evidence. Appellant appealed to the Board.

By decision dated November 28, 2012,6the Board affirmed OWCP’s September 21, 2011 

nonmerit decision.

On December 2, 2013 appellant again requested reconsideration.

By decision dated February 20, 2014, OWCP denied reconsideration as the evidence 

submitted did not raise substantive legal questions or include new and relevant evidence.

On February 19, 2015 appellant again requested reconsideration. She provided a 

January 29, 2015 letter from Dr. Christian Altman, an anesthesiologist who had treated her on 

January 20, 2005. Appellant also submitted imaging studies and test results.

In a March 9, 2015 letter, OWCP advised appellant that she could not request 

reconsideration of the February 20, 2014 nonmerit decision, as her only right of appeal was to the 

Board.

On April 8, 2015 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. She reiterated her allegations of malfeasance.

By decision dated June 10, 2015, OWCP denied appellant’s request for a hearing on the 

February 20, 2014 decision. It found that she was not entitled to a hearing as a matter of right as 

she had previously requested reconsideration. OWCP exercised its discretion and performed a 

limited review of the evidence submitted following reconsideration, and further denied the hearing 

request as the issue in the case would be addressed equally well by submitting new, relevant 

evidence or argument accompanying a valid request for reconsideration. Appellant appealed to 

the Board.

By decision dated December 14, 2015,7the Board affirmed the June 10, 2015 nonmerit 

decision.

5

Id.

6

Id.

7

Id.
4

On November 29, 2016 appellant again requested reconsideration. She contended that the 

evidence submitted in support of her February 19, 2015 reconsideration request was new and 

relevant. Appellant also argued that OWCP had failed to develop the medical evidence of record 

and had not referred her for a second opinion examination.

By decision dated February 27, 2017, OWCP denied reconsideration, finding that 

appellant’s arguments on reconsideration were neither new nor relevant. Appellant appealed to 

the Board.

By decision dated January 18, 2018,8the Board found that the case was not in posture for 

decision as OWCP had applied an inappropriate standard of review for timely reconsideration 

requests. The Board found that as appellant’s November 29, 2016 reconsideration request had not 

been received by OWCP within one year of the Board’s December 15, 2006 merit decision, the 

final merit decision in the claim, it was not timely filed. The Board remanded the case for OWCP 

to apply the clear evidence of error standard under 20 C.F.R. § 10.607(b).

By decision dated March 30, 2018, OWCP denied appellant’s request for reconsideration, 

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

appealed to the Board.

By decision dated June 11, 2019,9the Board affirmed OWCP’s March 30, 2018 nonmerit 

decision.

On June 16, 2020 appellant again requested reconsideration. She submitted a May 27, 

2020 statement alleging that the employing establishment failed to issue an official injury report

or fully investigate her exposure to diesel fumes, and that OWCP failed to acknowledge a 

December 14, 2001 report by the Department of Labor’s Occupational Safety and Health 

Administration (OSHA) regarding diesel fume exposures. Appellant also argued that OWCP 

should have processed her occupational disease claim as one for traumatic injury, that OWCP’s 

April 30, 2006 decision failed to address a January 3, 2005 meth choline challenge test report, that 

October 7, 2014 correspondence to the Secretary constituted a timely request for reconsideration, 

that all of her requests for reconsideration were timely under the Board’s holding in Eleanor 

Bozzacco,

10 and that the employing establishment’s failure to provide a detailed statement 

regarding her allegations warranted a remand of her claim for additional development and a

de novo decision under the Board’s holding in K.K.11

By decision dated September 8, 2020, OWCP denied appellant’s June 16, 2020 

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

of error. 

8

Id.

9

Id.

10 Docket No. 99-1745 (issued September 11, 2000).

11 Docket No. 11-1374 (issued January4, 2012).
5

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

request for reconsideration must be received by OWCP within one year of the date of OWCP’s 

decision for which review is sought.12 Timeliness is determined by the document receipt date of 

the request for reconsideration as is indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS).13 The Board has found that the imposition of the 

one-year time limitation does not constitute an abuse of the discretionary authority granted to 

OWCP under section 8128(a) of FECA.14

OWCP may not deny a request for reconsideration solely because it was untime ly 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. 15 OWCP’s 

regulations and 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(a), if the claimant’s 

request demonstrates clear evidence of error on the part of OWCP.16

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.17 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion.18 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 evidence of error on the 

part of OWCP.19 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in 

denying merit review in the face of such evidence.20

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.21 The claimant must present evidence that on its face shows that 

12 20 C.F.R. § 10.607(a).

13 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsideration, Chapter 2.1602.4(b) (September 2020).

14 G.L., Docket No. 18-0852 (issued January 14, 2020).

15 20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

16 Id.;supra note 13at Chapter 2.1602.5(a).

17 20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

18 See G.B., Docket No. 19-1762 (issued March 10, 2020); LeonaN. Travis, 43 ECAB 227, 240 (1991).

19 B.W., supra note 17.

20 Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

21 Supra note 13at Chapter 2.1602.5(b).
6

OWCP made an error (for example, proof that a schedule award was miscalculated). Evidence 

such as a detailed, well-rationalized medical report that, if submitted before the denial was issued, 

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.22

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation. 23 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that a decision shall contain findings of fact and a statement 

of reasons.24 The Board has held that the reasoning behind OWCP’s evaluation should be clear 

enough for the reader to understand the precise defect of the claim and the kind of evidence which 

would overcome it.25

ANALYSIS

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed. 

The last merit decision was issued on December 15, 2006. As appellant’s request for 

reconsideration was not received by OWCP until June 16, 2020, more than one-year after the most 

recent merit decision, pursuant to 20 C.F.R. § 10.607(a), the Board finds that the request for 

reconsideration was untimely filed. Consequently, appellant must demonstrate clear evidence of 

error by OWCP in denying the claim.26

The Board further finds that, in its September 8, 2020 decision, OWCP failed to make 

findings regarding the arguments and evidence submitted in support of appellant’s untimely 

reconsideration request.27 In its September 8, 2020 decision, it summarily denied appellant’s 

request for reconsideration without analyzing whether it was sufficient to demonstrate clear 

evidence of error.28 The September 8, 2020 decision simply noted that appellant’s statement 

presented “previously submitted arguments considered under prior decisions.” OWCP did not 

provide any discussion regarding the basis for its decision, nor did it address the arguments made 

22 G.B., supra note 18; A.R., Docket No. 15-1598 (issued December 7, 2015).

23 5 U.S.C. § 8124(a).

24 20 C.F.R. § 10.126.

25 C.M., Docket No. 19-1211 (issued August5, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014);supra

note 13 at Chapter 2.1400.5 (all decisions should contain findings of fact sufficient to identify the benefit being denied 

and the reason for the disallowance).

26 20 C.F.R. § 10.607(a).

27 See K.D., Docket No. 20-1186 (issued February 3, 2021).

28 M.D., Docket No. 20-0868 (issued April28, 2021); T.P., Docket No. 19-1533 (issued April30, 2020).
7

by appellant in her May 27, 2020 reconsideration request.29 Thus, the Board finds that OWCP did 

not comply with the review requirements of FECA and its implementing regulations.30 

Accordingly, appellant could not understand the precise defect of the claim, i.e., whether she had 

demonstrated clear evidence that the last merit decision was incorrect, and the kind of evidence 

which would overcome it.31 

The Board will therefore set aside OWCP’s September 8, 2020 decision and remand the 

case for an appropriate decision which contains findings of fact and a statement of reasons

regarding appellant’s untimely reconsideration request.

CONCLUSION

The Board finds that appellant’s request for reconsideration was untimely filed. The Board 

further finds that the case is not in posture for decision regarding whether appellant has 

demonstrated clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the September 8, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: February 7, 2022

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

29 T.J., Docket No. 21-0586 (issued September 30, 2021); T.N., Docket No. 21-0274 (issued July9, 2021); see 

Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued 

September 13, 2019); R.C.,Docket No. 16-0563 (issued May 4, 2016).

30 Supra notes 25and 26.

31 Supra note 13at Chapter 2.1400.5.