United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.P., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD & 

INTERMEDIATE MAINTENANCE FACILITY, 

Bremerton, WA, Employer

__________________________________________

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Docket No. 22-0863

Issued: November 8, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 11, 2022 appellant filed a timely appeal from a March 9, 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 26, 2019, 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

On May 1, 2019 appellant, then a 64-year-old welder, filed an occupational disease claim 

(Form CA-2) alleging that he developed bilateral hearing loss due to factors of his federal 

employment, including years of exposure to loud noise. He noted that he first became aware of 

his condition and that it was caused or aggravated by factors of his federal employment on 

March 25, 2004. Appellant did not stop work.

Accompanying his claim was a hearing conservation data audiogram performed on 

March 18, 2019 for the left ear, at the frequency levels of 500, 1,000, 2,000, 3,000, 4,000, and 

5,000 Hertz (Hz), revealed decibel (dB) losses of 5, 20, 20, 40, 45, and 55 respectively. Testing 

for the right ear, at the same frequency levels, revealed losses of 5, 10, 20, 20, 25, and 30 dB, 

respectively. It also contained a reference audiogram performed on May 5, 2015 for the left ear, 

at the frequency levels of 500, 1,000, 2,000, 3,000, 4,000, and 5,000 Hz, revealed dB losses of 10, 

15, 20, 40, 35, and 50 respectively. Testing for the right ear, at the same frequency levels, revealed 

losses of 5, 5, 15, 15, 20, and 20 dB, respectively.

Appellant also submitted a position description for a welder and several notifications of 

personnel action (Standard Form 50) forms documenting his time in the position as a welder. 

In a May 16, 2019 development letter, OWCP informed appellant that the evidence 

received was insufficient to support his claim. It advised him of the type of factual and medical 

evidence necessary to establish his claim and provided a questionnaire for his completion. In a 

separate development letter of even date, OWCP requested that the employing establishment 

provide additional information, including comments from a knowledgeable supervisor, regarding 

her occupational disease claim. It afforded both parties 30 days to respond.

OWCP received “Hearing Conservation Data” audiograms covering the period 

September 7, 1989 through March 18, 2019. In an accompanying medical report dated March 18, 

2019, Dr. Mark F. Miller, an audiologist, related appellant’s history of 2 years of active-duty 

service as an army infantryman, and 28 years of service as a welder. He noted that appellant was 

currently in charge of the rod shack where he issued equipment and welding wire, however, he 

continued to experience noise exposure from machinery and pneumatic tools when he went out to 

worksites. Dr. Miller further noted that appellant wore foam earplugs for hearing protection. 

Appellant’s audiometric examination revealed mild sloping to moderately-severe sensorineural 

binaural hearing loss.

On August 6, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a copy of the medical record, to Dr. Edward Treyve, a Board-certified 

otolaryngologist, for a second opinion evaluation to determine the nature and extent of appellant’s 

employment-related conditions.

In his August 29, 2019 medical report, Dr. Treyve reviewed the SOAF, appellant’s history 

of injury and the medical evidence of record. He noted that appellant related that he and his wife 

first noticed his hearing loss four to five years ago. Dr. Treyve further noted that he wore hearing 

protection, which was adequate to protect him from the effects of occupational noise exposure. 

He explained that appellant’s workplace exposure, based on the information provided and 
3

appellant’s history, would seem to be of significant intensity and duration to potentially contribute

to hearing loss. Dr. Treyve further explained that it appeared that his use of hearing protection in 

the workplace was adequate to protect him from the effects of occupational noise exposure. He

opined that there were no medical conditions or exposures that have been identified that likely 

contributed to his hearing loss. Dr. Treyve attributed appellant’s left ear hearing loss, which first 

developed in 2005 and which had progressed, to an undiagnosed left ear medical condition 

impacting his hearing in the left ear.

By decision dated September 26, 2019, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish causal relationship between his diagnosed

hearing loss and the accepted employment exposure.

OWCP received a December 23, 2020 report from Dr. Patrick Moon, a Board-certified 

otolaryngologist, noting that appellant had been medically evaluated and may be considered for 

bilateral hearing aids. It also received a magnetic resonance (MRI) scan of even date of the brain,

noting associated diagnoses of bilateral asymmetrical sensorineural hearing loss. 

In a letter dated January 15, 2020 and received on January 20, 2021, appellant noted that 

he had been evaluated on August 19, 2020 for his hearing loss and that a December 23, 2020 MRI 

scan was negative for a mass. He hoped this evidence would be sufficient for acceptance of his 

claim. 

On December 21, 2021 appellant requested reconsideration of OWCP’s September 26, 

2019 decision.

By decision dated March 9, 2022, OWCP denied appellant’s reconsideration request,

finding that it was untimely filed and failed to demonstrate that OWCP’s September 26, 2019

decision was issued in 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. For 

instance, 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” 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

2

5 U.S.C. § 8128(a); T.S., Docket No. 21-1075 (issued March18, 2022); L.W., Docket No. 18-1475 (issued 

February7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).

3

20 C.F.R. § 10.607(a). 

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

5 T.S., supra note 2; G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 

2009); LeonD. Faidley, Jr., 41 ECAB 104(1989).
4

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

 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 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.

9

 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 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.

10

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP 

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

detailed, well-rationalized medical report, which if submitted before the denial was issued, would 

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

error.

11

 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.

12

ANALYSIS

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

was untimely filed.

6

See 20 C.F.R. § 10.607(b); D.M., Docket No. 21-0261 (issued September 29, 2021); M.H., Docket No. 18-0623 

(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990).

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

April 15, 2010). See also20 C.F.R. § 10.607(b).

8

J.M., Docket No. 19-1842 (issued April23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

9

See D.M., supra note 6; S.C., Docket No. 18-0126 (issued May 14, 2016).

10 C.M., Docket No. 19-1211 (issued August 5, 2020).

11 J.S., Docket No. 16-1240 (issued December 1, 2016);supra note 4 at Chapter 2.1602.5(a) (September 2020).

12 D.S., Docket No. 17-0407 (issued May 24, 2017).
5

OWCP’s regulations provide that the one-year time limitation period for requesting 

reconsideration begins on the date of the last merit decision.

13

 The last merit decision was dated 

September 26, 2019. Because appellant’s request for reconsideration was received on 

December 21, 2021, more than one year after the September 26, 2019 merit decision, the Board 

finds that the request was untimely filed.14 Consequently, appellant must demonstrate clear 

evidence of error on the part of OWCP.

15

The Board further finds that appellant failed to demonstrate clear evidence of error.

On reconsideration, appellant submitted a December 23, 2020 report from Dr. Moon, 

noting that appellant had been medically evaluated and may be considered for bilateral hearing 

aids. It also received an MR scan of even date of the brain, noting associated diagnoses of bilateral 

asymmetrical sensorineural hearing loss. This evidence report, however, did not address the 

underlying issue of whether hearing loss was causally related to the accepted employment noise 

exposure. Thus, the Board finds that this evidence isinsufficient to shift the weight of the evidence 

in favor of appellant or raise a fundamental question as to the correctness of OWCP’s decision.16

As noted, clear evidence of error is intended to represent a difficult standard.17 Even a 

detailed, well-rationalized medical report, which if submitted before the denial was issued, would 

have created a conflict in medical evidence requiring further development is insufficient to 

demonstrate clear evidence of error. It is not enough to show that evidence could be construed so 

as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s 

favor.18

As the evidence submitted in support of the untimely request for reconsideration is 

insufficient to shift the weight of the evidence in favor of appellant’s claim or to raise a substantial 

question that OWCP erred in its September 26, 2019 decision, the Board finds that appellant has 

not demonstrated clear evidence of error. Accordingly, OWCP properly denied appellant’s 

untimely reconsideration request.

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.

13 20 C.F.R. § 10.607(a).

14 Id. at § 10.607(a).

15 See M.L., Docket No. 20-0628(issued June 3, 2022); R.T., Docket No. 20-0298 (issued August6, 2020).

16 See M.L., id.; B.C., Docket No. 16-1404 (issued April14, 2017); F.R., Docket No. 09-0575 (issued January 4, 

2010) (evidence that is not germane to the issue on which the claim was denied is insufficient to demonstrate clear 

evidence of error).

17 Supra note 12; see also J.S., Docket No. 16-1240 (issued December 1, 2016).

18 M.E., Docket No. 18-1442 (issued April22, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the March 9, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: November 8, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy 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