United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

MID ATLANTIC CONSOLIDATED PATIENT 

ACCOUNT CENTER, Asheville, NC, Employer

__________________________________________

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Docket No. 22-1096

Issued: January 13, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 19, 2022 appellant filed a timely appeal from a January 21, 2022 nonmerit decision 

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

from the last merit decision, dated February 2, 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.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted evidence and argument on appeal. However, the Board’s Rules of 

Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before 

OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first 

time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for 

the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

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

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

follows.

On August 8, 2017 appellant, then a 45-year-old program support assistant, filed an 

occupational disease claim (Form CA-2) alleging that she developed an emotional condition due 

to factors of her federal employment, including harassment and being treated differently by her 

coworkers. She alleged that she worked in a hostile environment and as a result suffered posttraumatic stress disorder (PTSD), stress, anxiety, and high blood pressure. Appellant noted that 

she first became aware of her condition and its relationship to her federal employment on 

July 19, 2017. She stopped work on July 19, 2017. 

The employing establishment controverted the claim. 

By decision dated February 2, 2018, OWCP denied appellant’s occupational disease claim, 

finding the evidence of record was insufficient to establish a compensable work factor.

On August 11, 2020 appellant requested reconsideration and noted, “past timely filing due 

to error.”

In an undated statement also received on August 11, 2020, appellant argued that she had 

clear evidence that error was committed in the processing of her claim. She explained that h er 

appeal was untimely because her then-counsel believed that her claim would be settled within her 

Equal Employment Opportunity (EEO) claim; however, she was informed that she would be 

unable to recover lost wages through her EEO settlement.

OWCP received an undated report from Jyotsna Milbourne, a clinical psychologist, who 

diagnosed PTSD due to appellant’s time in the military and opined that appellant’s current 

symptoms of headache and anxiety were due to a hostile work environment. 

Appellant also submitted emails dated from November 23, 2016, between J.H., a manager, 

and appellant, regarding appellant’s leave request, timekeeping, and work assignments. Some of 

these emails questioned whether she was going to use annual leave and requested that she enter 

her time into the timekeeping system. Appellant was also asked to complete certain work matters 

by the end of the workweek. OWCP also received a May 2, 2019 statement from L.H., a coworker, 

who provided details regarding appellant’s work environment, indicating that she was asked to use 

leave when other white coworkers were not asked and that she has been asked to update her 

3 Order Remanding Case, Docket No. 21-0140 (issued August25, 2021).
3

productivity report when L.H. was not asked. OWCP also received a November 9, 2017 statement 

from appellant’s spouse, relating to employment factors that she described. 

By decision dated August 27, 2020, OWCP denied appellant’s reconsideration request, 

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

On November 9, 2020 appellant filed a timely appeal to the Board from the August 27, 

2020 nonmerit decision. By order dated August 25, 2021, the Board found that the case was not 

in posture for decision as OWCP did not address all relevant evidence received prior to the issuance 

of its final decision. The Board set aside the August 27, 2020 decision and remanded the case and 

ordering that following any further development as deemed necessary, OWCP should issue an 

appropriate decision.

On December 14, 2021 OWCP received a January 24, 2020 Equal Employment 

Opportunity Commission (EEOC) confidential settlement agreement between appellant and the 

employing establishmentregarding her claim that she was subjected to a hostile work environment 

based on race, color and reprisal, as well as any claim of non-selection based upon any protected 

basis

By decision dated January 21, 2022, OWCP denied appellant’s August 11, 2020 request 

for reconsideration of its February 2, 2018 decision, 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.4 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.5 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).

6

 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.7

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.8 Its procedures provide that it will reopen a claimant’s case for merit review, 

4

5 U.S.C. § 8128(a); see S.N., Docket No. 22-0264 (issued September 9, 2022); A.M., Docket No. 20-0143 (issued 

October 28, 2020); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-440 (issued 

March 16, 2009).

5

20 C.F.R. § 10.607(a).

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

7

S.M., Docket No. 19-1166 (issued October 16, 2020); 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).

8

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

Prudencio, 41 ECAB 499, 501-02(1990).
4

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.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 which was decided by OWCP.11 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. 12

ANALYSIS

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

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

As noted above, a request for reconsideration must be received within one year of the date 

of the last merit decision for which review is sought.13 As appellant’s request for reconsideration 

was not received by OWCP until August 11, 2020, more than one year after the February 2, 2018

decision, it was untimely filed. Consequently, she must demonstrate clear evidence of error by 

OWCP in its February 2, 2018 decision.

14

9

See S.M., supra note 7; 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); supranote 6 at Chapter 2.1602.5 (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 T.C., Docket No. 19-1709 (issued June 5, 2020); S.C., Docket No. 18-0126 (issued May 14, 2016); supranote 6

at Chapter 2.1602.5a (September 2020).

12 U.C., Docket No. 19-1753 (issued June 10, 2020); GeorgeC. Vernon, 54 ECAB 319 (2003).

13 Supra note 5.

14 G.L., Docket No. 18-0852 (issued January 14, 2020); 20 C.F.R. § 10.607(b); T.C., supra note 11; Charles J. 

Prudencio, supranote 8.
5

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

part of OWCP in issuing its February 2, 2018 decision. 

Appellant failed to submit the type of positive, precise, and explicit evidence which 

manifests on its face that OWCP committed an error in its decision.15 The evidence and argument 

she submitted failed to raise a substantial question concerning the correctness of OWCP’s finding 

that appellant had not established a compensable factor of employment.

16

Following OWCP’s February 2, 2018 decision, it submitted a statement noting that her 

appeal was untimely because her then-counsel believed that her occupational disease claim would 

be settled within her EEO claim; however, she was informed that she would be unable to recover 

lost wages through her EEO settlement. Appellant did not offer any arguments to raise a question 

regarding the correctness of OWCP’s decision. The Board finds that these arguments failed to 

raise a substantial question concerning the correctness of OWCP’s decision.17

The Board has reviewed the emails from appellant’s manager, J.H., and finds that this 

evidence on its face does not raise a substantial question concerning the correctness of OWCP’s 

decision. Administrative and personnel matters, although generally related to employment, are 

administrative functions of the employer, and not the regular or specially assigned work duties of 

the employee. For an administrative or personnel matter to be considered a compensable factor of 

employment, the evidence must establish error or abuse on the part of the employer.18

The only direct evidence submitted in support of appellant’s allegation of hostile work 

environment was the statement from appellant’s coworker, L.H. While this statement indicated 

that appellant was asked to request leave and update her productivity report, this bare and vague 

statement does not establish any specific error on the part of the employing establishment, 

occurring on any specific date.19 Appellant also submitted a statement from her husband wherein 

he reiterated appellant’s allegations. This secondhand reiteration of appellant’s allegations is

insufficient to establish that OWCP erred in finding that appellant had not established a 

compensable factor of employment. 

While appellant submitted the EEO confidential settlement agreement, which notes that 

appellant was to receive a financial sentiment, it does not contain a finding of wrongdoing by the 

15 See R.K., Docket No. 19-1474 (issued March 3, 2020); S.W., Docket No. 18-0126 (issued May 14, 2019);

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

16 Id.

17 Id.

18 M.H., Docket No. 21-1297 (issued December 20, 2022); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on 

recon., 42 ECAB 556 (1991).

19 See J.K., Docket No. 21-1130 (issued October 13, 2022). 
6

employing establishment. There is no final EEO decision in the case record establishing that 

harassment occurred.20

Appellant also submitted medical records from Ms. Milbourne, who diagnosed PTSD from 

appellant’s military service and opined that workplace stress caused appellant to experience 

anxiety and headaches. However, OWCP denied the employee’s claim on a factual basis, i.e., the 

failure to establish a compensable employment factor. The Board finds that this evidence does not 

demonstrate that OWCP erred in its determination that appellant failed to provide sufficient 

evidence to establish that employment factors led to an occupational disease.

Therefore, the Board finds that the evidence submitted following merit review does not 

demonstrate that OWCP erred when it denied appellant’s occupational disease claim.21 As noted, 

clear evidence of error is intended to represent a difficult standard.22 It is not enough to show that 

evidence could be construed so as to produce a contrary conclusion. Appellant failed to submit 

the type of positive, precise, and explicit evidence which manifests on its face that OWCP 

committed an error in its February 2, 2018 decision.

23

 Therefore, OWCP properly determined that 

she failed to demonstrate clear evidence of error in its February 2, 2018 decision.

CONCLUSION

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

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

20 See M.R.,Docket No. 18-0304 (issued November 13, 2018).

21 See S.T., Docket No. 18-0925 (issued June11, 2019).

22 See supra note 6 at Chapter 2.1602.5a (September 2020); see T.G., Docket No. 22-0352 (issued September 29, 

2022; see also J.S., Docket No. 16-1240 (issued December 1, 2016).

23 See R.K., Docket No. 19-1474 (issued March 3, 2020); S.W., Docket No. 18-0126 (issued May 14, 2019);

Robert G. Burns, supranote 10.
7

ORDER

IT IS HEREBY ORDERED THAT the January 21, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 13, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board