United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

MUSKOGEE VETERANS MEDICAL CENTER, 

Muskogee, OK, Employer

__________________________________________

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Docket No. 21-1138

Issued: January 20, 2022

Appearances: Case Submitted on the Record

Aaron B. Aumiller, 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 July 16, 2021 appellant, through counsel, filed a timely appeal from a February 2, 2021 

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

days has elapsed from the last merit decision dated August 5, 2019 to 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.

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

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

On February 8, 2019 appellant, then a 44-year-old nurse, filed an occupational disease 

claim (Form CA-2) alleging that she experienced an asthma attack as a result of factors of her 

employment. She recounted that she was sitting at her desk when housekeeping began cleaning 

the vents next to her and over her head. Appellant indicated that she first became aware of her 

illness and realized its relationship to her federal employment on January 18, 2019.

In a February 15, 2019 development letter, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence required and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested 

evidence. 

Appellant submitted a note dated February 25, 2019 from an osteopathic physician with an 

illegible signature who requested that the ventilation and walls be inspected for mold and asbestos 

due to appellant’s health.

By decision dated March 18, 2019, OWCP denied appellant’s claim, finding that the 

factual component of fact of injury had not been established. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

On April 15, 2019 appellant requested review of the written record by a representative of 

OWCP’s Branch of Hearings and Review.

Appellant submitted diagnostic testing reports. A January 18, 2019 chest x-ray 

examination report showed no acute cardiopulmonary process. A February 20, 2019 computerized 

tomography scan of the chest demonstrated no large central pulmonary embolus and normal 

pulmonary artery and thoracic aorta. A February 25, 2019 magnetic resonance imaging (MRI) 

scan of the brain revealed high-grade, near occlusive stenosis of the transverse sinuses at the lateral 

margins bilaterally.

OWCP also received additional medical evidence. In a January 18, 2019 occupational 

health progress note, Joyce E. Dorsey, a physician assistant, indicated that appellant was seen for 

complaints of “having a tickle in [appellant’s] throat.” She recounted that appellant had informed 

her that the overhead vents were cleaned in her area. On physical examination Ms. Dorsey 

reported mild wheezing on the left upper lobe.

A February 26, 2019 emergency room discharge report noted that appellant was admitted 

on February 21, 2019 and discharged on February 26, 2019 with diagnoses of fever, pseudo tumor, 

bacterial sepsis, chest pain, elevated bilirubin, obesity, and acute hypokalemia.

In a March 4, 2019 progress report, Dr. Larissa F. Giuliano, a family medicine specialist, 

indicated that appellant was evaluated for follow up of acute exacerbation of asthma and breast 
3

nodule. She provided examination findings and assessed tension-type headache, neck pain, 

nocturia, overweight, and lump in right breast.

In a March 11, 2019 report and letter, Dr. Jeanne M. Edwards, a neurologist, recounted that 

appellant was treated for complaints of ringing in the ears, headaches, light sensitivity, double 

vision, blurred vision, and neck pain and stiffness. Neurological examination revealed 2+ deep 

tendon reflexes and intact sensation. Dr. Edwards advised that appellant had a medical condition 

that prevented her from working until March 21, 2019.

In a March 13, 2019 progress report, Dr. Giuliano noted appellant’s complaints of 

persistent cough, tightness in her chest, and headaches. Upon physical examination of appellant’s 

lungs, she observed normal breath sounds and good air movement. Dr. Giuliano assessed nausea, 

headache, and cough.

On April 11, 2019 appellant submitted her completed OWCP development questionnaire. 

She indicated that she was exposed to and inhaled dust when workers were cleaning out vents over 

her head. Appellant recounted that her chest became tight and she could not breathe. She noted 

that she eventually sought treatment at the hospital.

By decision dated August 5, 2019, OWCP’s hearing representative modified the March 18, 

2019 decision to find that appellant had established that she was exposed to dust on January 18, 

2019, but denied the claim finding that the medical evidence of record was insufficient to establish 

a medical diagnosis causally related to the accepted employment factors. 

On November 20, 2020 appellant, through counsel, requested reconsideration. Counsel

noted that he was submitting a medical report, which provided a comprehensive discussion 

regarding causal relationship. He acknowledged that the reconsideration request was submitted 

more than one year after the date of OWCP’s decision and explained that, due to the COVID-19 

pandemic, appellant was unable to secure a report until after the one year deadline. 

In an August 20, 2020 report, Dr. Karin Pacheco, a Board-certified internal, occupational, 

and allergy and immunology physician, noted that appellant began working for the employing 

establishment in 2009. She recounted that, in January 2019, a maintenance worker dusted the 

ventilation outlets located near appellant’s desk and appellant developed a persistent cough and 

was unable to catch her breath. Dr. Pacheco indicated that appellant’s symptoms continued to 

persist and she later developed fever, chills, cough, and myalgias. She reported that, in 

February 2019, appellant developed an onset of severe head pressure with fever and was diagnosed 

with idiopathic hypertension/pseudo tumor cerebri. Dr. Pacheco discussed the medical treatment 

that appellant received. She indicated that appellant’s symptoms returned when appellant returned

to the old portion of the employing establishment’s hospital and improved when appellant was 

away from the hospital. Dr. Pacheco reported that, whenever appellant went to the employee 

health clinic, she developed headache and shortness of breath. Upon physical examination of 

appellant’s respiratory system, she noted normal chest symmetry and expansion with normal 

respiratory effort. Dr. Pachecoassessed overweight, pseudo tumor cerebri, and shortness of breath 

with cough and myalgias consistent with a history of hypersensitivity pneumonitis. She indicated 

that the symptoms were associated with occupancy of the old portion of the hospital with a history 

of water damage and probable mold contamination. 
4

By decision dated February 2, 2021, OWCP denied appellant’s 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.3 To be entitled to a merit review of an OWCP decision, a request for reconsideration 

must be received by OWCP within one year of the date of OWCP’s decision for which review is 

sought.4 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).5 The Board has found that the imposition of this one-year filing limitation does not 

constitute an abuse of discretion.6

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

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

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

merit decision was in error.7 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 demonstrates clear evidence of error on the part of OWCP. 8 In this regard, 

OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior 

evidence of record.9

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.10 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion. 11 This entails a limited review by 

OWCP of how the evidence submitted with the reconsideration request bears on the evidence 

3

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4

20 C.F.R. § 10.607(a).

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

6 G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

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

7

See 20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

8 L.C., Docket No. 18-1407 (issued February14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010); see also 

id. at § 10.607; supranote 5 at Chapter 2.1602.5(a)(September 2020).

9

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018); 

Robert G. Burns, 57 ECAB 657 (2006).

10 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).

11 See G.B., Docket No. 19-1762 (issued March 10, 2020); LeonaN. Travis, 43 ECAB 227, 240(1991).
5

previously of record and whether the new evidence demonstrates clear evidence of error on the 

part of OWCP.12 To demonstrate clear evidence of error, the evidence 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. 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.13

ANALYSIS

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

finding that it was untimely filed.

OWCP received appellant’s request for reconsideration on November 20, 2020 more than 

one year after the last merit decision dated August 5, 2019.14 The Board notes, however, that 

OWCP’s regulations unequivocally require that a request for reconsideration must be received by 

OWCP within one year of the date of OWCP’s decision for which a review is sought in order to 

be entitled to a merit review.15 Since the reconsideration request was untimely, appellant has the 

burden of proof to demonstrate clear evidence of error on the part of OWCP. 16

The Board further finds that appellant has not demonstrated clear evidence of error on the 

part of OWCP.

In support of her untimely reconsideration request, appellant submitted a new report from

Dr. Pacheco dated August 20, 2020. Although Dr. Pacheco addressed the issue of causal 

relationship, the Board finds that this report does not demonstrate clear evidence of error because 

it does not show that OWCP committed an error in finding that appellant failed to establish causal 

relationship between her medical condition and the accepted work exposure. As such, it does not

raise a substantial question as to the correctness of OWCP’s August 5, 2019 merit decision.17 

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.18 

12 B.W., supra note 10.

13 U.C., Docket No. 19-1753 (issued June10, 2020); Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma 

Matthews, 44 ECAB 765, 770 (1993).

14 Supra note 5.

15 Supra note 4.

16 Supra note 8.

17 See D.R., Docket No. 21-0061 (issued May 24, 2021).

18 W.R., Docket No. 20-1197 (issued February 3, 2021); A.R., Docket No. 15-1598 (issued December 7, 2015).
6

The Board finds, therefore, that appellant has not raised an argument or submitted any 

evidence that manifests on its face that OWCP committed an error in denying her occupational 

disease claim. Consequently, OWCP properly found that her November 20, 2020 request for 

reconsideration was untimely filed and failed to demonstrate clear evidence of error.19

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 20, 2022

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

19 O.K., Docket No. 21-708 (issued September 29, 2021); S.C., Docket No. 19-1424 (issued September 15, 2020).