United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

KAILUA-KONA, HI, Employer

__________________________________________

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Docket No. 21-1130

Issued: October 13, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 20, 2021 appellant filed a timely appeal from a January 27, 2021 nonmerit decision 

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

from the last merit decision dated October 25, 2018 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 denied appellant’s request for reconsideration, 

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

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

On June 7, 2018 appellant, then a 43-year- old city letter carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on June 6, 2018 he experienced stress and anxiety due to 

harassment at work from his supervisor while in the performance of duty. He stopped work on 

June 6, 2018. 

In an attached statement, appellant explained that on June 5, 2018 he submitted an official 

request to V.M., the employing establishment officer in charge, for 24 hours of official time to 

prepare for a scheduled Equal Employment Opportunity Commission (EEOC) redress meeting. 

He recounted that V.M. denied his request and instructed him to do janitorial work. Appellant 

indicated that, later that day, V.M. informed him that she was granting him two hours of leave. He 

also alleged that V.M. instructed him to leave the employing establishment premises because his 

physician had placed him off work. Appellant asserted that he tried to provide additional 

documentation to V.M., but she refused to look at it. He indicated that he felt threatened and 

discriminated against. 

Appellant submitted medical evidence in support of his claim, including a May 21, 2018 

work status note by Dr. Frank Eigner, a family medicine specialist, a June 8, 2018 report and work 

status note by Dr. Zain Vally, an internal medicine specialist, and a June 8, 2018 letter by

Dr. Serena A. Edwards, a family medicine specialist. OWCP also received Part B, Attending 

Physician’s Report, of an authorization for examination and/or treatment form (Form CA-16) 

signed by a physician with an illegible signature who noted a history of injury of harassment at 

work by a supervisor and findings of stress, anxiety, and adjustment disorder. 

In a June 19, 2018 development letter, OWCP informed appellant of the deficiencies of his 

claim. It requested that he submit additional factual and medical evidence to establish that he 

sustained an emotional condition while in the performance of duty. By separate development letter 

of even date, OWCP requested additional information from the employing establishment, 

including comments from appellant’s supervisor regarding the accuracy of appellant’s allegations. 

It afforded both parties 30 days to submit the necessary evidence. 

In a July 3, 2018 letter, V.M., appellant’s supervisor, described in detail her conversations

and interactions with appellant on June 5 and 6, 2018. She indicated that he requested 24 hours of 

leave to work on an EEOC case, but she was informed by an EEOC specialist that a reasonable 

amount of time to authorize was one hour. V.M. recounted that appellant also requested that she 

change his previous leave absences, but he refused to provide the necessary documentation to 

support his requests. She contended that he was not harassed by management, but was asked to 

follow the instructions of his physician who placed him off work. V.M. submitted a copy of 

appellant’s timesheets for 2017 and 2018 and an employing establishment Request for or 

Notification of Absence form dated June 4, 2018. 

2 Order Remanding Case, Docket No. 20-0556 (issued August13, 2020).
3

On July 24, 2018 appellantsigned and completed OWCP’s development questionnaire. He 

indicated that he did not have any other sources of stress outside of his federal employment. 

Appellant alleged that the only source of his stress was a result of filing for a work injury with 

OWCP. He described the medical treatment and counseling that he had received and explained 

why he required more than two hours of official time to prepare for his EEOC meeting. 

In a July 26, 2018 letter, OWCP indicated that it was converting appellant’s traumatic 

injury claim to an occupational disease claim (Form CA-2). It informed him of the deficiencies of 

his claim and requested that he submit additional factual and medical evidence to establish that he 

developed an emotional condition while in the performance of duty. OWCP afforded appellant 30 

days to submit the necessary evidence. 

On September 13, 2018 appellant signed and completed OWCP’s July 26, 2018 

development questionnaire. He alleged that V.M. acted abusively by only granting him two hours 

of leave to prepare for his EEOC meeting, refusing to participate in a conference call with him and 

an EEOC specialist about his leave request, and instructing him to leave the employing 

establishment on June 5, 2018. 

Appellant subsequently submitted additional medical evidence, including reports and work 

status notes from Dr. Vally dated July 6, August 3, and September 7, 2018 and a September 10, 

2018 letter from Dr. Eigner. 

OWCP also received a series of documents, including a Request for Official EEOC Time 

form dated June 5, 2018, a copy of appellant’s timesheet August 4 through 17, 2018, a copy of 

EEOC procedures regarding official time, witness statements from S.T. and R.H. about the 

conversation between appellant and V.M., a statement by O.R. about his conversation with 

appellant and V.M., documents regarding appellant’s June 12, 2018 redress mediation conference, 

and a July 13, 2018 letter informing appellant of his right to file an EEOC complaint. 

By decision dated October 25, 2018, OWCP denied appellant’s emotional condition claim, 

finding that he had not established a compensable employment factor. It found that the employing 

establishment did not commit error or abuse as issues related to leave requests were administrative 

functions of the employer and not duties of the employee. 

On October 29, 2019 appellant requested reconsideration. In an October 22, 2019 

statement, he argued that he was in the performance of duty on June 6, 2018 when his supervisor 

informed him that he was allowed only two hours of official time to prepare for his EEOC meeting, 

refused to let him return to work, and failed to listen to the EEOC counselor. Appellant asserted 

that management was attempting to circumvent the EEOC process and impede his attempts to 

receive information from OWCP because it had not answered any of his requests for records and 

additional information. He submitted additional statements dated September 27 through

October 11, 2019, in which he requested a union steward, witness statements, and information 

related to appellant’s EEOC complaint, additional documentation regarding his redress mediation 

conference, earnings and leave statements, and an April 12, 2018 limited-duty job offer.

OWCP also received work status notes and reports by Dr. Vally dated January 17, March 7, 

and April 4 and 18, 2019. 
4

In a November 14, 2019 decision, OWCP denied appellant’s reconsideration request, 

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

Appellant filed an appeal to the Board. In an order dated August 13, 2020, the Board set 

aside OWCP’s November 14, 2019 decision, finding that OWCP properly determined that his

request for reconsideration was untimely filed, but that OWCP summarily denied his

reconsideration request without complying with the review requirements under FECA and its 

implementing regulations. The Board remanded appellant’s case for OWCP to properly analyze 

the evidence or arguments submitted as to whether he demonstrated clear evidence of error in the 

October 25, 2018 OWCP decision.3 

By decision dated January 27, 2021, OWCP denied appellant’s reconsideration request, 

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

that the evidence and argument submitted on reconsideration was insufficient to raise a substantial 

question concerning the correctness of OWCP’s November 14, 2019 decision.

LEGAL PRECEDENT

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

merit review.4 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.5 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).6 The Board has found that the imposition of this one-year filing limitation does not 

constitute an abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.

7

 

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 of error.8 OWCP’s

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

3 Appellant subsequently submitted additional medical reports and duty status reports (Form CA-17) by Dr.Vally 

dated March 5, April6, May11, June15, and July 20 and 24, 2020. Dr.Valley noted appellant’s complaints of feeling 

overwhelmed and frustrated, difficulty sleeping, and anxiety attacks. He conducted an examination and assessed 

stress/anxiety, depression, and adjustment disorder. Dr.Vally opined that the mechanism of injury was consistent 

with that described by appellant. Appellant also resubmitted the June 5, 2018 Request for Official EEOC Time form 

dated June5, 2018. 

4

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).

5

20 C.F.R. § 10.607(a).

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

7 G.G., Docket No. 18-1074 (issuedJanuary7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

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

8

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).
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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. 9 In this regard, OWCP will 

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

record.10

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

could be construed so as to produce a contrary conclusion. 12 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.13 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.14

ANALYSIS

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.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the timeliness 

of appellant’s reconsideration request, as the Board found in its August 13, 2020 order that his 

request was untimely filed. Findings made in prior Board decisions and/or orders are res judicata

absent further merit review by OWCP under section 8128 of FECA.15 

In support of his reconsideration request, appellant argued that the employing 

establishment mishandled his EEOC and workers’ compensation claim and impeded his attempts 

9 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010); see also 

id., at § 10.607; supranote 6 at Chapter 2.1602.5(a) (September 2020).

10 J.M., Docket No. 19-1842 (issued April23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018); 

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

11 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).

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

13 B.W., supra note 11.

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

Matthews, 44 ECAB 765, 770 (1993).

15 See S.J., Docket No. 21-0217 (issued December 16, 2021); C.M., Docket No. 19-1211 (issued August 5, 2020); 

Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
6

to obtain information from OWCP. However, these vague and unsupported allegations are 

insufficient to demonstrate clear evidence of error.16

Appellant also submitted additional medical reports and work status notes by Dr. Vally 

dated January 17 through April 18, 2019. These reports, however, do not demonstrate that OWCP 

committed an error in finding that appellant failed to establish a compensable factor of 

employment as they do not raise a substantial question as to the correctness of OWCP’s 

October 25, 2018 merit decision.17 

Consequently, OWCP properly found that appellant’s November 20, 2020 request for 

reconsideration was untimely filed and failed to demonstrate clear evidence of error.18

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.

16 R.L., Docket No. 21-0090 (issued May 12, 2021).

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

18 O.K., Docket No. 21-708 (issued September 29, 2021); S.C., Docket No. 19-1424 (issued September 15, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the January 27, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 13, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board