United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.L., Appellant

and

DEPARTMENT OF THE NAVY, SPACE & 

NAVAL WAR SYSTEMS COMMAND, 

North Charleston, SC, Employer

__________________________________________

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Docket No. 18-0496

Issued: January 9, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 9, 2018 appellant filed a timely appeal from a November 20, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was that of the Board dated July 27, 2015, which became final after 30 days and is not 

subject to further review.1 As there was no merit decision by OWCP within 180 days of 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 to review the merits of this case.

3

 

1 20 C.F.R. § 501.6(d). 

2 5 U.S.C. § 8101 et seq.

3 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated October 11, 2018, the Board exercised its discretion and denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 18-0496 (issued October 11, 2018).
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

This case has previously been before the Board.4 The facts of the case as set forth in the 

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

On December 3, 2013 appellant, then a 43-year-old administrative specialist, filed an 

occupational disease claim (Form CA-2) alleging that she sustained work-related emotional 

conditions in the form of depression, anxiety disorder, panic attacks, and panic disorder. She 

indicated that, on August 22, 2013, she first became aware of her claimed condition and that it was 

caused or aggravated by her federal employment. Appellant stopped work on August 22, 2013.

In a December 5, 2013 statement, appellant indicated that on August 22, 2013 she informed 

her supervisor of a decline in her health and ability to concentrate due to stress and pressure caused 

by an upcoming move to a new workplace approximately eight or nine miles away from her thencurrent workplace. She advised that she stopped work beginning August 22, 2013 and felt that she 

was treated harshly after she sent an e-mail to her supervisor on August 27, 2013 about possibly 

returning to work. Appellant indicated that she believed that her supervisor was “continuing to 

intimidate me” and “added insult to my injuries” when he responded, “Facilities has moved your 

boxes and chair to [Building 198] and installed the keyboard tray as previously requested.” She 

asserted that she was psychologically mistreated and abused “all because of the demands of a 

move.” Appellant claimed that she had been called “a squatter” and noted, “I have been abused 

psychologically and I have been lied to and lied on and my chain of command failed me.” She

also submitted medical evidence in support of her claim. Some of the reports indicated that 

appellant suffered from depression, anxiety, and panic attacks.

By a February 12, 2014 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of her claim. 

In response, appellant submitted a statement in which she indicated that between January 

and August 2013 she experienced a lot of stress because her work team was transitioning from 

contractors to government workers. She claimed that her work unit was not adequately supported 

by management in the performance of her work during this transition period. Appellant asserted 

that on June 24, 2013 she advised another supervisor, that she was not ready to move to Building 

198. She claimed that this supervisor gave her assurances that she would not have to move until 

she was ready to make such a move. Appellant indicated that she suffered a great deal of stress 

because she was told by her supervisor in an August 22, 2013 e-mail that she would have to vacate 

her workspace by the close of business on August 23, 2013.

Appellant submitted a number of documents, including copies of e-mails, concerning the 

move of her and coworkers to Building 198. In several of the documents, she indicated that she 

 

4 Docket No. 14-1936 (issued July 27, 2015).
3

wished to postpone her move to Building 198 until issues were resolved regarding her ability to 

effectively and efficiently perform her job duties at the new location.5 In an August 12, 2013 

e-mail, appellant’s supervisor advised that appellant “is currently squatting in Building 3112, cube 

20.”

6

 Appellant also submitted additional medical evidence in support of her claim.

By decision dated March 19, 2014, OWCP denied appellant’s emotional condition claim, 

finding that she failed to establish a compensable employment factor. In particular, it found that 

her allegation regarding the employing establishment’s mishandling of her move to Building 198 

in August 2013 did not constitute error and abuse. OWCP also determined that appellant failed to

establish that she was subjected to harassment.

On April 25, 2014 appellant requested reconsideration of OWCP’s March 19, 2014 

decision. She submitted additional evidence including several statements in which she continued 

to argue that the employing establishment mishandled her move to Building 198 in August 2013. 

By decision dated May 7, 2014, OWCP denied appellant’s request for reconsideration of the merits 

of her claim pursuant to 5 U.S.C. § 8128(a).

On June 24, 2014 appellant again requested reconsideration of her claim. She submitted 

additional personal statements and documents regarding the move to Building 198 in August 2013.

On July 17, 2014 OWCP received an undated statement from appellant’s supervisor which 

addressed her claimed employment factors. The supervisor noted that appellant rejected two 

requests to move in June and July 2013 and that these were cancelled in an effort to accommodate 

her. On August 2, 2013 it was discovered that her cubicle was assigned to two individuals and a 

proper request to vacate was issued on August 12, 2013 after a new employee showed up to occupy 

the same space. The supervisor indicated that appellant made little progress towards carrying out 

the move and noted that he issued her a final request to move on August 22, 2013. The move did 

not require special computer server or access requirements, and the “Carpathia” server was 

available from the contractor’s site. The supervisor noted that the term “squatting” was 

administrative in nature, and was used to denote a person working in a cubicle not officially 

assigned to him or her or occupying a space marked vacant. The term was not used only for 

appellant and was not meant to be an insult.

By decision dated August 29, 2014, OWCP denied modification of its March 19, 2014 

decision. It again found that appellant had not established a compensable employment factor in 

connection with her emotional condition claim. 

 

5 Appellant asserted that Building 198 did not have adequate space for the multiple conferences she attended per 

week and that she would not be able to print and transfer files in an efficient manner at Building 198.

6

In an August 22, 2013 e-mail to appellant, her supervisor noted, “You need to be moved by [close of business] 

today then.”
4

Appellant subsequently appealed to the Board and, by decision dated July 27, 2015, the 

Board affirmed OWCP’s August 29, 2014 decision denying her emotional condition claim, finding 

that she had not established a compensable employment factor.7

On April 29, 2016 appellant again requested reconsideration of her claim and submitted 

additional factual and medical evidence in support of her reconsideration request. By decision 

dated May 18, 2016, OWCP denied appellant’s request for reconsideration of the merits of her 

claim pursuant to 5 U.S.C. § 8128(a).

In July 24 and August 22, 2016 letters received by OWCP on August 22, 2016, appellant 

again requested reconsideration of her claim. In the July 24, 2016 letter, she requested that an 

OWCP claims examiner “carefully review my last reconsideration.” In the August 22, 2016 letter, 

appellant asserted that it was difficult for her to complete the forms for her claim due to memory 

and concentration issues which were related to her work. She advised that she had received 

psychiatric care on a regular basis since August 2013 and indicated that her attending physicians 

had requested that OWCP carefully review her requests for reimbursement. Appellant noted that 

some of her requests for reimbursement of co-payments were related to treatment for psychiatric 

conditions.8 She submitted an OWCP document listing medical bills that had been denied for 

reimbursement.

By decision dated November 20, 2017, OWCP denied appellant’s request for 

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

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an award 

for or against payment of compensation at any time on his or her own motion or on application. 

The Secretary, in accordance with the facts found on review, may end, decrease or increase the 

compensation awarded or award compensation previously refused or discontinued.9

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) of the 

implementing regulations provides that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.10 According to the Federal 

(FECA) Procedure Manual, the one-year period for requesting reconsideration begins on the date of 

the original OWCP decision, but the right to reconsideration within one year also accompanies any 

 

7 Supra note 3.

8 Appellant also noted that she did not understand why OWCP denied her request for reimbursement of co-payments 

and travel expenses which were made in connection with an OWCP claim other than the present claim.

9 5 U.S.C. § 8128(a).

10 20 C.F.R. § 10.607(a).
5

subsequent merit decision on the issues, including any merit decision by the Board.11 Timeliness is 

determined by the document receipt date, i.e., the “received date” in OWCP’s Integrated Federal 

Employees’ Compensation System (iFECS).12 The Board has found that the imposition of the oneyear limitation does not constitute an abuse of the discretionary authority granted OWCP under 

section 8128(a) of FECA.13

However, OWCP will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation, if the claimant’s application for review demonstrates clear evidence of error 

on the part of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a 

claimant must submit evidence relevant to the issue that was decided by OWCP. The evidence 

must be positive, precise, and explicit and must be manifest on its face that OWCP committed an 

error.14

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.15 The Board 

notes that clear evidence of error is intended to represent a difficult standard.16 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

demonstrate clear evidence of error.17 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.18 This entails a limited review by OWCP of 

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

part of OWCP.19 The Board makes an independent determination as to whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.20

ANALYSIS

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. As noted above, the one-year period for requesting reconsideration 

begins on the date of the original OWCP decision, but the right to reconsideration within one year 

 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

12 Id. at Chapter 2.1602.4b (February 2016).

13 See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

14 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

15 Annie L. Billingsley, 50 ECAB 210 (1998).

16 R.K., Docket No. 16-0355 (issued June 27, 2016).

17 Jimmy L. Day, 48 ECAB 652 (1997).

18 Id.

19 Id.

20 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, supra note 13.
6

also accompanies any subsequent merit decision on the issues, including any merit decision by the 

Board.21 As appellant’s request for reconsideration was not received by OWCP until August 22, 

2016, more than one year after issuance of the Board’s July 27, 2015 merit decision, it was 

untimely filed. Consequently, she must demonstrate clear evidence of error by OWCP in its prior 

merit decision.22

Appellant failed to demonstrate clear evidence of error on the part of OWCP in issuing its 

prior merit decision dated August 29, 2014. In an August 22, 2017 letter, she asserted that it was 

difficult for her to complete the forms for her claim due to memory and concentration issues which 

were related to her work. Appellant advised that she had received psychiatric care on a regular 

basis since August 2013 and indicated that her attending physicians had requested that OWCP 

carefully review her requests for reimbursement. She noted that some of her requests for 

reimbursement of co-payments were related to treatment for psychiatric conditions. 

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

manifests on its face that OWCP committed an error in its August 29, 2014 decision denying her 

claim for an employment-related emotional condition.

23

 The evidence and argument submitted in 

connection with her untimely reconsideration request did not raise a substantial question 

concerning the correctness of OWCP’s prior decision.24 In essence, appellant simply expressed

her personal belief that she was due compensation for an employment-related emotional condition. 

However, she failed to submit evidence or argument demonstrating that OWCP committed error 

when it previously denied her emotional condition claim. In an August 22, 2017 letter, appellant 

had noted that she did not understand why OWCP denied her request for reimbursement of copayments and travel expenses which were made in connection with an OWCP claim other than the 

present claim. She failed to explain how her statements regarding a claim unrelated to the present 

claim showed error in OWCP’s prior decisions regarding her claim for an employment-related 

emotional condition. Appellant also submitted an OWCP document listing medical bills that had 

been denied for reimbursement, but this document would in any way show that she sustained an 

employment-related emotional condition. OWCP had denied appellant’s emotional condition 

claim because she failed to establish compensable employment factors, but appellant’s argument 

upon her untimely reconsideration request did not address this factual basis for the denial of her 

claim.25 

The Board finds that appellant’s application for review does not demonstrate on its face 

that OWCP committed error when it found in its August 29, 2014 decision that she failed to meet 

her burden of proof to establish an employment-related emotional condition.

26

 As noted, clear 

 

21 See supra notes 8 and 9.

22 See supra note 10.

23 Id. See also M.M., Docket No. 18-0622 (issued October 2, 2018).

24 See supra notes 11 and 13.

25 See supra notes 18 through 20 regarding a claimant’s need to establish a compensable employment factor in 

connection with a claim for an employment-related emotional condition.

26 See S.F., Docket No. 09-0270 (issued August 26, 2009).
7

evidence of error is intended to represent a difficult standard.27 Other than simply reiterating her 

previous arguments, appellant has not met this standard in this case.

For these reasons, the evidence and argument submitted by appellant does not raise a 

substantial question concerning the correctness of OWCP’s August 29, 2014 decision and OWCP 

properly determined that appellant failed to demonstrate clear evidence of error in that decision.

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 November 20, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

27 See supra note 12.