United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.P., Appellant

and

U.S. POSTAL SERVICE, SPRING LAKE POST 

OFFICE, Spring Lake, MI, Employer

__________________________________________

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Docket No. 23-0604

Issued: September 18, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 20, 2023 appellant filed a timely appeal from a September 20, 2022 nonmerit 

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

elapsed from the last merit decision dated September 8, 2021, 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.

FACTUAL HISTORY

On July 28, 2021 appellant, then a 50-year-old postmaster, filed an occupational disease 

claim (Form CA-2) alleging that he sustained carbon monoxide poisoning, as a result of exposure 

1

5 U.S.C. § 8101 et seq.
2

to carbon monoxide gas from a boiler at the employing establishment. He noted that he first 

became aware of his condition and its relation to his federal employment on April 7, 2021. 

Appellant stopped work on June 22, 2021. 

In an e-mail dated July 27, 2021, E.D., the Postmaster and Officer-in-Charge, related that 

on June 21, 2021 he was told to report to the employing establishment as the postmaster was out 

on medical leave. When he arrived at the employing establishment, he was informed that appellant 

had called in a carbon monoxide leak to the utility company. The utility company investigated,

and no leak was found. Thereafter, the employing establishmentmaintenance department installed 

carbon monoxide testers, and tests were run three times a day, but no leak was detected. No other 

employee complained of carbon monoxide poisoning.

In a development letter dated July 30, 2021, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed and provided a 

factual questionnaire for his completion. In a separate development letter of even date, OWCP 

requested additional information from the employing establishment regarding appellant’s potential 

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

In support of his claim, appellant submitted his completed questionnaire in which he 

alleged continuing boiler leaks since 2019, a July 21, 2021 request for leave under the Family and 

Medical Leave Act (FMLA), a denial of his FMLA request, and a Michigan Gas Utilities 

November 7, 2019 caution -- hazardous condition form. He also submitted an e-mail he had sent 

to employing establishment officials on October 30, 2020 relating that in 2019 he had extreme 

headaches, it was determined that the employing establishment boiler was emitting carbon 

monoxide. 

OWCP also received reports dated July 19 and 22, 2021 from Dr. Irma P. Parra, a family 

medicine specialist, who reported appellant had an elevated level of carboxyhemoglobin, which 

she attributed to carbon monoxide exposure at work. 

By decision dated September 8, 2021, OWCP denied appellant’s occupational disease 

claim finding the evidence insufficient to establish that he had been exposed to carbon monoxide 

at work. 

OWCP subsequently received a July 27, 2021 response from the Occupational Safety and 

Health Administration (OSHA) advising that it had not determined whether a hazardous condition 

existed in appellant’s workplace due to carbon monoxide from a malfunctioning boiler and would 

not investigate his allegation. It requested the employing establishment investigate and make any 

necessary modifications or corrections and to advise OSHA in writing no later than August 3, 2021 

of the investigation results. 

In a letter dated August 5, 2021, the employing establishment noted that it had been notified 

of a possible carbon monoxide leak on June 22, 2021. It noted that the boiler had been removed 

and a new boiler placed, but the new boiler was not hooked up and the gas line was capped off.

The only unit that was currently using gas was the hot water heater. A representative from the 

Michigan Gas Utilities found acceptable levels of carbon monoxide within the hot water heater. 

One carbon monoxide detector was installed in the boiler room and another in the postmaster’s 
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office. During the period June 23 through July 13, 2021 detector readings were all negative. The

employing establishment noted that monitoring would continue until the new boiler was hooked 

up and no carbon monoxide leak is found. 

On September 13, 2022 OWCP received appellant’s undated letter requesting

reconsideration of the September 8, 2021 decision and a form requesting reconsideration dated 

July 10, 2022. In his letter, appellant noted this was the third time sending his request for 

reconsideration. He asserted that he had submitted sufficient medical and factual evidence 

establishing his claim, noting that carbon monoxide testers were only installed in 2021 after he 

contacted OSHA. 

In support of his request, appellant submitted bills from Trinity Health, a resubmitted copy 

of the July 22, 2021 report from Dr. Parra, and a February 19, 2021 laboratory requisitions for 

carboxyhemoglobin test.

OWCP also received a Caution-Hazardous Condition from Michigan Gas Utilities, which 

is either blank or illegible. 

Appellant also resubmitted the July 27, 2021 e-mail from E.D. Additionally, he submitted 

e-mail correspondence to R.G. and L.T. regarding his claim and paperwork to be submitted, and 

between appellant and B.D. regarding switching his day off and noting problems with the boiler.

OWCP received a U.S. Postal receipt dated August 25, 2022 noting priority mail to 

London, Kentucky with delivery expected on August 29, 2022. It also received a page from an 

Equal Employment Affidavit (continuation sheet) signed by C.S. on September 2, 2021 stating 

that appellant alleged work exposure to carbon monoxide. The statement indicated that carbon 

monoxide was found in the employing establishment in October 2019, but had been fixed and 

carbon monoxide detectors were installed on the workroom floor and in appellant’s office. 

Appellant called the gas company about a gas leak, in 2021, but the utility company found no leak. 

By decision dated September 20, 2022, 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.2 This discretionary authority, however, is subject to certain restrictions. A request 

for reconsideration must be received within one year of the date of OWCP’s decision for which 

review is sought.3 Timeliness is determined by the document receipt date (i.e., the “received date”

2

Id. at § 8128(a). See also J.M., Docket No. 22-0630 (issued February10, 2023); L.W., Docket No. 18-1475 (issued 

February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).

3

20 C.F.R. § 10.607(a).
4

in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).4 Imposition of this 

one-year filing limitation does not constitute an abuse of discretion.5

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

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

decision was in error.6 Its 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 for reconsideration demonstrates clear evidence of error on the part of OWCP.7 In this 

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

prior evidence of record.8

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

issue which was decided by OWCP.

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 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error. Evidence which 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 merely to 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 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 as to 

whether a claimant has demonstrated clear evidence of error on the part of OWCP. 10

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 e rror.

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

5

J.M., supra note 2; G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 

2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

See 20 C.F.R. § 10.607(b); J.M., id.; M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 

41 ECAB 499, 501-02 (1990).

7

J.M., id.; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued 

April 15, 2010). See also id. at § 10.607(b); supra note 4 at Chapter 2.1602.5 (September 2020).

8 A.M., Docket No. 20-1466 issued January 3, 2023); 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).

9

J.M., supra note 2; S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 4 at Chapter 2.1602.5a 

(September 2020).

10 J.M., id.; U.C., Docket No. 19-1753 (issued June 10, 2020).
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A request for reconsideration must be received within one year of the date of the last merit 

decision for which review is sought.11 As appellant’s request for reconsideration was not received 

by OWCP until September 13, 2022, more than one year after OWCP’s issuance of its 

September 8, 2021, it was not timely filed. Appellant has alleged that he submitted his request 

timely, and that he had requested reconsideration three times. However, the record does not 

establish that a request for reconsideration was received prior to September 13, 2022, 

consequently, appellant must demonstrate clear evidence of error by OWCP in its September 8, 

2021 decision.

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

After OWCP’s issuance of its September 8, 2021 merit decision, OWCP received copies 

of prior medical evidence and copies of medical bills. However, this evidence is irrelevant as the 

underlying issue in this case is factual in nature, whether appellant established carbon monoxide 

exposure at work.12 Therefore, this evidence also does not demonstrate clear evidence of error by 

OWCP in its September 8, 2021 decision.

On reconsideration appellant asserted that the evidence submitted established that his 

diagnosed carbon monoxide poisoning was due to carbon monoxide exposure at work due to a 

leaky boiler. Contrary to his assertions the record does not establish carbon monoxide exposure 

at work in 2021. OWCP received documents which indicated that a carbon monoxide leak had 

occurred at the employing establishment in 2019; however, none of the submitted documents 

establishes on its face that another leak occurred in 2021. The evidence submitted on 

reconsideration is not 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.13 The 

Board finds that the evidence and argument submitted by appellant does not demonstrate on its 

face that OWCP committed an error when it denied his occupational disease claim in its 

September 8, 2021 decision.14 Therefore, OWCP properly denied his reconsideration request, 

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

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.

11 20 C.F.R. § 10.607(a); see T.G., Docket No. 22-0352 (issued September 29, 2022). 

12 A.B., Docket No. 20-0561 (issued November 24, 2021); N.V., Docket No. 20-0781 (issued November 18, 2020).

13 Supra note 10. 

14 See J.M., supra note 2; S.C., Docket No. 19-1424 (issued September 15, 2020); U.C., supra note 10.
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ORDER

IT IS HEREBY ORDERED THAT the September 20, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 18, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board