United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE MATERIEL COMMAND,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-974
Issued: August 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2013 appellant, through her representative, filed a timely appeal from the
January 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on April 6,
2012, as alleged.
FACTUAL HISTORY
On May 22, 2012 appellant, a 58-year-old secretary (office automation), filed a traumatic
injury claim alleging that she sustained an injury in the performance of duty on April 6, 2012
1

5 U.S.C. § 8101 et seq.

when she slipped on a floor runner and fell to the floor, hitting or striking her head on a desk.
She stated that she managed to get up, was very weak, blacked out or lost consciousness, became
speechless and was sent to the hospital. Appellant described the nature of her injury as
“contusion to head, neck, back little movement soreness, knees/legs weak no stability, loss of
speech, arms numbness shoulder stiffness.”
Emergency medical services took appellant to a hospital on the morning of April 6, 2012.
The history was described as follows:
“Patient found as above. Patient is a 54-year-old black female who complained of
a headache at 7:00 this morning and took some Tylenol at 7:15. A co-worker
states she went to get her a donut and when she came back the patient was
confused and disoriented and unable to speak. Patient conscious, attempts to obey
commands but is unable.”
On examination, appellant’s face and head were found to be atraumatic. The sudden
onset of headache was labeled a risk consideration and her diagnosis was given as altered mental
state with generalized weakness, rule out cerebrovascular accident. Hypertension was seen as a
risk factor for subarachnoid hemorrhage.
Because appellant had possibly suffered a stroke, she was referred on the day of the
incident to Dr. Ashish K. Masih, a Board-certified neurologist, for consultation, who related the
following history:
“The patient is a 58-year-old right-handed African American female with history
of hypertension who presents with an unusual episode of language impairment.
She states at 7 o’clock this morning, she was at work. She developed a sudden
onset of headache that was diffuse and was sharp in nature. The patient states
that, at 7:30, she had felt unsteady and fell into her desk and struck her head. The
patient states that at that point in time, she had language disturbance with
difficulty producing her speech. The patient was taken immediately to Midwest
Regional Medical Center where I received a phone call from the emergency room
physician requesting advice for treatment of tissue plasminogen activator due to
lack of focality of her exam.”
Dr. Masih added that appellant had a stat magnetic resonance imaging (MRI) scan, which
showed possible subacute infarct of the left internal capsule. He examined her and diagnosed a
possible left subcortical stroke, though this was likely to be an artifact on the MRI scan as there
was no correlation. Dr. Masih stated that appellant would be admitted for a stroke workup.
Dr. Masih continued to evaluate appellant for spells of amnesia. He noted on May 7,
2012 that she was having blackout spells with no loss of consciousness. “Onset was 11/11 after
patient struck her head on a car. Patient states this will occur about 2 week.”
In an April 23, 2012 incident report, appellant described what happened on April 6, 2012:
“Enter office slipped & fell hitting my head on desk gotten up and was sitting at desk & black
out.” Asked what object or substance directly harmed her, she answered: “floor runner & desk.”

2

On April 25, 2012 appellant was seen for a recheck status post stroke she stated that she
had on April 6, 2012 while at work. “She said when she fell she hit her head.”
Roger S. Chapa stated that on April 6, 2012 he went into the clerk’s office to sharpen his
pencil and appellant was sitting at her desk. “I said good morning and she looked up at me but
did not respond. I did not notice anything wrong with [appellant] at the time, approximately 7:00
a.m.”
Teresa Sheehan provided the following statement on May 22, 2012:
“On Friday April, 6, 2012, around 7:00 a.m., I took a donut down to [appellant]
for breakfast. When I walked in her office she was blinking a lot and her eyes
were watery. I asked her if she was OK and she said her head hurt really bad. I
got her a water and she took some Tylenol. I told her I would come back in
awhile and check on her. I went back to check on her about 15 minutes later and
she was sitting at her desk staring at her computer. I asked her if she was ok and
all she said was ‘I,I,I” and never completed her sentence. Mr. Rodriguez came in
and was trying to talk to her and she was unresponsive. He called 911 and she
began to cry. She had all the contents of her badge holder laid out in front of her
and picked up her CAC card and started swiping it down the 10 key on the
computer keyboard like it was an ATM. She did cry. The paramedics arrived and
she never responded to their questions either. They lifted her onto a gurney and
put her in an ambulance.”
Appellant saw Dr. M. Stephen Wilson, II, an orthopedic surgeon, on May 24, 2012.
Dr. Wilson reported the following history of injury:
“On April 6, 2012 while at Tinker Air Force Base performing her work-related
duties as a secretary, [appellant] was walking to her desk when she tripped over a
runner on the floor and fell forward, hitting her head on a nearby desk and landing
on her left knee. She struggled to rise back to her feet, but was able to eventually
get into a chair. [Appellant] felt extreme weakness at that time and her forehead
was bleeding and she temporarily lost consciousness (according to coworkers)
and she was unable to speak upon regaining consciousness.”
Mr. Chapa provided an additional statement: “On 06, April 12 when I was in the
secretary’s office sharpening my pencil I did not observe any injuries or bleeding on [appellant].
As stated before I said good morning and she looked up and did not respond, she was just sitting
at her desk and continued to stare at her computer.”
Responding to questions posed by OWCP, appellant described how the injury occurred:
“I entered my office and started around the end of the desk when I tripped or slipped on the
runner on the floor. I fell forward hitting my head on the desk I landed on my knees and my
arms. I fell approximately 3 feet to the floor (I never measured it) and I struggle trying to get
back up.” She stated that she thought Ms. Sheehan came into her office first. “I can’t remember
what was said.” Appellant stated: “I had a headache and could not comprehend and could not

3

speak. I was in a daze according to a co-worker. I just sat there, no knowledge of what had
happened.”
In a July 16, 2012 decision, OWCP denied appellant’s traumatic injury claim. It found
that she failed to establish the factual component of her claim. OWCP noted that appellant had
not provided any factual evidence to support that she actually experienced the incident as
described on her claim form. It observed that she provided an inconsistent description of how
the injury occurred. OWCP also observed that the medical evidence did not support that
appellant’s medical condition resulted from a specific event or incident.
Appellant explained that neither Ms. Sheehan, Mr. Rodriguez nor Mr. Chapa were in the
room when she fell. She stated that “no one knew I had fall[en] and hit my head” and inquired
as to who informed the emergency paramedics and Midwest City Hospital of her conditions and
where did all the different times come from? Appellant advised that the incident report was the
first form she filled out and the information was there and was true.
During a telephonic hearing before an OWCP hearing representative on November 6,
2012, appellant testified that she entered her office on April 6, 2012 got to the end of her desk
and made the little turn to go around to her seat when she tripped on the runner on the floor. She
stated that she fell forward, hitting her head on her desk and she fell to the floor. Appellant
stated that no one was present when she fell. She stated that she did not feel unsteady before she
fell. Appellant testified that she could not remember what happened at the hospital: “I was kind
of out of it so I can’t remember the details.” She was able to testify that she struck her head on
the desk. Appellant stated that she had a bump in the top of her head.
By decision dated January 18, 2013, the hearing representative affirmed the denial of
appellant’s injury claim. He noted that there was no mention of her having tripped, slipped or
fallen over a runner or having struck her head until May 24, 2012, more than a month and a half
after the alleged injury. Emergency room records gave no indication of injury to the head, neck,
back or extremity until more than a month and a half later, when the history changed. The
hearing representative found that appellant did not fall or strike her head, as alleged.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, she or he must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3

2

5 U.S.C. § 8102(a).

3

John J. Carlone, 41 ECAB 354 (1989).

4

To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on a claimant’s statements. The employee has not met this burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.4
ANALYSIS
It is not clear what happened on April 6, 2012. From the history reflected in most of the
contemporaneous medical records, appellant complained of the sudden onset of a headache
around 7:00 a.m. that morning, took some Tylenol around 7:15 a.m. and by the bottom of the
hour appeared confused and disoriented, unable to speak and unable to obey commands. This
history made no mention of slipping or tripping on a runner, falling and striking her head on a
desk.
When Dr. Masih, the consulting neurologist, saw appellant later that day for a possible
stroke, the history he noted was that she developed a sudden onset of headache, diffuse and
sharp, around 7:00 a.m. By 7:30 a.m. appellant felt unsteady and fell into her desk and struck
her head. This history made no mention of Tylenol or slipping or tripping on a runner.5
Appellant’s face and head were examined at the hospital that same morning and were
found to be atraumatic. There was no finding of a bleeding forehead of bump in the top of her
head, as she would later allege. No coworker who saw her that morning mentioned that her
forehead was bleeding.
Ms. Sheehan has offered the most reliable account of what happened. When she brought
a donut to appellant around 7:00 a.m., appellant complained that her head hurt badly.
Ms. Sheehan gave appellant water and appellant took Tylenol. She advised that she would return
in a while to check on her. During this interaction, appellant made no mention that she had just
tripped on a floor runner and struck her head on the desk. Ms. Sheehan’s failure to do so would
be consistent with the history related by Dr. Masih, who indicated that appellant felt unsteady
around 7:30 a.m. (after Ms. Sheehan had left the office) and fell into her desk.
However, appellant would later explain in her testimony before the hearing representative
that it was when she entered the office and began to make the turn around her desk that she
tripped on the runner and fell and struck her head. In this account, she did not feel unsteady
before the fall. It was after appellant struck her head and scrambled into her seat that
Ms. Sheehan arrived. In this account, she did not initially suffer the sudden onset of a bad
headache; she fell and struck her head first. This is inconsistent with the history that Dr. Masih
4

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).
5

The record does not disclose whether Dr. Masih, in screening appellant for a possible stroke, asked her whether
she had fallen or otherwise struck her head.

5

related. Although appellant was able to communicate to Ms. Sheehan that she had a bad
headache, she inexplicably failed to mention that she had just fallen and stuck her head.
The Board finds that there are too many inconsistencies in the evidence to establish that
appellant fell on April 6, 2012 and struck her head, as alleged. Appellant is the only source for
this information, but she is not a reliable source. She was found to be confused and disoriented,
unable to form a sentence or obey commands. Appellant displayed odd behavior. She stated that
she just sat there with “no knowledge of what had happened,” that she was “kind of out of it” and
unable to remember certain details. Dr. Masih continued to evaluate her for spells of amnesia.
Coupled with this, very likely because of this, the record presents an unclear history of
what actually happened on April 6, 2012. Evidence confirms that appellant was suffering from a
bad headache around 7:00 a.m. She took Tylenol. Shortly, thereafter, appellant appeared
confused and disoriented. Evidence does not confirm that she slipped or tripped on a runner, that
she fell into her desk or that she struck her head. What evidence there is on this point is
inconsistent.
Accordingly, the Board finds that appellant has not met her burden to establish that she
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged. Although the evidence establishes that appellant suffered the sudden onset of a bad
headache at work, the mere fact that a condition manifests itself or worsens during a period of
federal employment raises no inference of causal relationship between the two.6 Because she has
failed to establish a factual basis for her traumatic injury claim, the Board will affirm OWCP’s
January 18, 2013 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained an
injury in the performance of duty on April 6, 2012, as alleged.

6

Steven R. Piper, 39 ECAB 312 (1987). Mere temporal relationships are thus distinguished from relationships of
causation.

6

ORDER
IT IS HEREBY ORDERED THAT the January 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Marietta, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-967
Issued: August 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 15, 2008 appellant filed a timely appeal of a November 8, 2007 decision of
the Office of Workers’ Compensation Programs, denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits
of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On September 17, 2003 appellant, a 58-year-old diesel engineer, filed an occupational
disease claim alleging that he developed reactive airway disease, asthma and coronary artery
disease with angina beginning in October 1997 due to his federal employment. By decisions
dated March 24 and April 18, 2005, the Office denied his claim on the grounds that the evidence

failed to establish that he sustained a medical condition causally related to factors of his
employment.
The Office developed additional medical evidence submitted by appellant. On
November 4, 2005 it accepted reactive airway disease as causally related to his employment. In
a November 4, 2005 decision, the Office found that appellant had no periods of disability caused
by his accepted reactive airway disease. It also denied his claim for a cardiac condition as
causally related to his employment.
On December 16, 2005 appellant requested a review of the written record by the Branch
of Hearings and Review. By decision dated January 30, 2006, the Office denied his request for a
review of the written record because it was not timely filed within 30 days of the November 4,
2005 decision.
On January 18, 2007 appellant requested reconsideration of the November 4, 2005
decision.
In a report dated May 12, 2004, Dr. William R. Beam, a specialist in internal medicine,
reviewed appellant’s medical history for several conditions and provided findings on physical
examination. He diagnosed occupational-induced asthma, worsening airflow obstruction,
obstructive sleep apnea, hypertension, dyslipidemia, osteoarthritis, gout, benign prostatic
hypertrophy with a history of kidney stones, gastroesophageal reflux disease and ischemic
cardiomyopathy with coronary artery disease status post myocardial infarction and bypass
surgery. Dr. Beam stated that there had been a deterioration in spirometry (pulmonary function)
over the past one or two years compared to previous pulmonary function tests. He noted that
appellant attributed his worsening pulmonary function to exposure to toxic agents at work.
Appellant submitted copies of general articles on occupational asthma and chronic
obstructive pulmonary disease printed from the internet. He also submitted evidence previously
of record.
By decision dated November 8, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it was not timely filed within one year of the last merit
decision on November 4, 2005 and the medical evidence failed to show clear evidence of error.1
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
1

Subsequent to the November 8, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

5 U.S.C. § 8128(a).

3

Thankamma Mathews, 44 ECAB 765 (1993).

2

compensation.4 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the request for reconsideration is filed within one year of
the date of that decision.5 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).6
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7 To establish clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by the Office.8 The evidence must be positive, precise and
explicit and must be manifest on its face that the Office committed an error.9 Evidence which
does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.10 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.11 To show 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
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.12 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.13
ANALYSIS
The merits of appellant’s case are not before the Board. His request for reconsideration
was dated January 18, 2007. As this request was made more than one year after the Office’s

4

Id. at 768.

5

20 C.F.R. § 10.607; see also Alberta Dukes, 56 ECAB 247 (2005).

6

Thankamma Mathews, supra note 3 at 769.

7

20 C.F.R. § 10.607(b); see also Donna M. Campbell, 55 ECAB 241 (2004).

8

Dean D. Beets, 43 ECAB 1153 (1992).

9

Leona N. Travis, 43 ECAB 227 (1991).

10

Darletha Coleman, 55 ECAB 143 (2003).

11

Leona N. Travis, supra note 9.

12

Darletha Coleman, supra note 10.

13

Pete F. Dorso, 52 ECAB 424 (2001).

3

November 4, 2005 merit decision, it was not timely. The issue to be determined is whether
appellant demonstrated clear evidence of error in his untimely request for reconsideration.
The Board finds that the Office properly denied appellant’s untimely request for
reconsideration on the grounds that the evidence failed to demonstrate clear evidence of error in
the November 4, 2005 merit decision.
Dr. Beam diagnosed a number of medical conditions including coronary artery disease
and “occupational-induced” asthma. He noted that appellant attributed a worsening pulmonary
function during the past one or two years to exposures to toxic agents at work. However, as
noted, it is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion. Evidence which does not raise a substantial question concerning the
correctness of the Office’s decision is insufficient to establish clear evidence of error. Dr. Beam
addressed only appellant’s belief regarding causal relationship. He did not provide adequate
medical rationale explaining how appellant’s asthma and coronary artery disease were related to
factors of his federal employment. Therefore, Dr. Beam’s report does not raise a substantial
question as to the correctness of the Office’s November 4, 2005 decision or demonstrate clear
evidence of error.
Appellant submitted copies of general articles on occupational asthma and chronic
obstructive pulmonary disease. The Board has held that newspaper clippings, medical texts and
excerpts from publications are of no evidentiary value in establishing the necessary causal
relationship between a claimed condition and employment factors because such materials are of
general application and are not determinative of whether the specifically claimed condition is
related to the particular employment factors alleged by the employee.14 Therefore, these articles
do not demonstrate clear evidence of error in the November 4, 2005 merit decision.
For these reasons, the Office properly denied appellant’s request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that his request was untimely and failed to demonstrate clear evidence of error.

14

William C. Bush, 40 ECAB 1064 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 8, 2007 is affirmed
Issued: August 13, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Slate Hill, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Katherine Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1099
Issued: October 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 16, 2014 appellant, through counsel, filed a timely appeal from a March 7, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
an emotional condition. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal, appellant’s counsel contends that the medical report by appellant’s physician
was sufficient to establish that her emotional condition was causally related to the accepted
factor of her federal employment. Further, OWCP failed to properly develop the medical
evidence and appellant sustained other compensable factors of employment, including the fact
that she developed anxiety from having to work in multiple unfamiliar settings.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 3, 2010 appellant, then a 59-year-old sales service and distribution
associate, filed an occupational disease claim alleging a nervous breakdown due to the duties of
her federal employment. She stated that she broke down due to the stress of never knowing
where she was going to work, the time she was going to work or how she was going to get to
work. Appellant alleged that, after 23 years, there was nothing solid anymore in her career. The
employing establishment noted that she was employed as a part-time flexible clerk. Appellant
stopped work on November 19, 2010 and had not yet returned to work. In support of her claim,
she submitted a disability certificate from Dr. Raymond C. Hui, Board-certified in family
practice, who noted that she was totally incapacitated from November 19 to December 13, 2010.
Dr. Hui advised that appellant was able to return to her regular work duties on
December 14, 2010.
By letter dated December 22, 2010, OWCP advised appellant that the information
submitted was insufficient to establish her claim. It requested additional information, including
factual and medical evidence.
Appellant responded that since June 2010 she has been assigned to work at different
offices of the employing establishment every day. After two hours in one office, she was told to
report to a different office and some days she worked in two or three offices without prior notice.
Appellant stated that the worst thing was when the employing establishment directed her to go
close an office as she had never been trained how to close and was told to do the best she can.
She stated that her postmaster did not know how to process her requests for travel pay.
Appellant found being sent to different offices was overwhelming and resulted in a nervous
breakdown.
In a February 3, 2011 letter, Jean Breyer, a manager, noted that all job duties within the
postal service had been changing due to decreases in mail volumes and automation. As the
workforce diminished, employees were tasked to meet the needs of the service. Ms. Breyer
noted that appellant was a part-time flexible employee and, as such, was assigned where needed.
She noted that training for close out procedures could be provided to appellant and that she
would look into her travel pay.
In a January 26, 2011 hand written note, Dr. Manouchehr Lavian, a psychiatrist, stated
that appellant had been under his care since December 17, 2010. Appellant reported that she had
a nervous breakdown at work, manifested by feeling depressed, crying and that the employing
establishment was trying to get rid of her. Dr. Lavian diagnosed an adjustment disorder with
anxiety and depressed mood.
By decision dated June 2, 2011, OWCP denied appellant’s claim. It found that she failed
to establish a compensable factor of employment.
On June 14, 2011 appellant requested reconsideration. She reiterated that she was a
part-time flexible employee who had been assigned to the same office for 23 years, but had
recently been directed to report to different offices. Appellant reiterated that she was told to
close offices but had not received training. She alleged poor management and harassment, which

2

resulted in a nervous breakdown. Appellant noted that social security had deemed her disabled
and that she would receive a disability retirement.
By decision dated September 16, 2011, OWCP denied modification of the June 2, 2011
decision.
On December 6, 2011 appellant again requested reconsideration. She contended that
OWCP misunderstood her previous letters. It was not just the travel involved but when sent to
different offices appellant did not know where she would be working or the employees and
customers. She feared for her life as she did not know who was capable of “going postal.” At
her own office, appellant knew everyone and had no fear of anyone. She also stated that being
responsible for a drawer of money at each location was nerve wracking.
By decision dated March 16, 2012, the hearing representative found that appellant had
established a factor of employment in that she had to perform closing procedures at various
stations and had not received any training. OWCP denied her claim as she had not submitted
sufficient medical evidence to establish that this factor caused her emotional condition.
On March 13, 2013 appellant, through counsel, requested reconsideration. Counsel
contended that appellant suffered from fear and anxiety regarding her ability to perform the dayto-day duties of her job. She contended that, when the employing establishment started moving
appellant around, her day-to-day duties caused her to become sick. Appellant noted that the
additional requirement that she be responsible for closing without any training aggravated her
condition and caused total disability. Counsel also contended that the claim be reopened for
development of the medical evidence.
In a July 25, 2012 note, Dr. Lavian stated that appellant had been under his care since
December 17, 2010 and diagnosed with an adjustment disorder with mixed depression and
anxiety. Appellant was easily overwhelmed and anxious and cannot remain focused. It was
Dr. Lavian professional opinion that she could not return to work. In a December 21, 2012 note,
he reiterated his opinion that the aggravation appellant faced in the workplace had a causal
relationship with her inability to work and perform her job.
By decision dated May 29, 2013, OWCP denied modification of its March 16, 2012
decision.
By letter dated October 31, 2013, appellant’s counsel requested reconsideration. She
submitted a March 27, 2013 note from Dr. Lavian, who stated that it was his professional
opinion that the job requirement that appellant perform closing procedures without adequate
training aggravated her underlying condition and contributed to her current disability.
By decision dated March 7, 2014, OWCP denied modification of the May 29, 2013
decision.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional condition in the performance of
duty, an employee must submit the following: (1) medical evidence establishing that he or she
has an emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
3

incidents alleged to have caused or contributed to his or her condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to his or her emotional condition.
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 Workers’ compensation law does not apply
to each and every injury or illness that is somehow related to an employee’s employment.3
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage of workers’ compensation.4 Where
the disability results from an employee’s emotional reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.5
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of FECA. Mere disagreement with or dislike of actions taken by a
supervisor or manager will not be compensable absent evidence establishing error or abuse.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the facts alleged or implicated by the employee did, in fact,
occur.10 Mere perceptions of harassment or discrimination are not compensable under FECA.11
A claimant must substantiate allegations of harassment or discrimination with probative and
2

20 C.F.R. § 10.5(q).

3

L.D., 58 ECAB 344 (2007).

4

A.K., 58 ECAB 119 (2006).

5

See supra note 1. Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

See also H.C., Docket No 12-457 (issued October 19, 2012); see William H. Fortner, 49 ECAB 324 (1998).

7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
8

See William H. Fortner, supra note 6.

9

Ruth S. Johnson, 46 ECAB 237 (1994).

10

K.W., 59 ECAB 271 (2007).

11

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

4

reliable evidence.12 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.13 Perceptions and feelings
alone are not compensable. To establish entitlement for benefits, a claimant must establish a
basis in fact for the claim by supporting his or her allegations with probative and reliable
evidence.14
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.15 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.16 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.17
ANALYSIS
OWCP determined that appellant established a compensable factor of employment in that
she was assigned to close offices without receiving training. It determined that the other alleged
factors were not compensable factors of employment. The Board will initially address the other
alleged factors of employment.
Assigning work is an administrative function of the supervisor.18 The manner in which a
supervisor exercises his/her discretion generally falls outside FECA’s coverage. This principle
recognizes that supervisors must be allowed to perform their duties and at times employees will
disagree with their supervisor’s actions.19 Appellant attributed her anxiety and stress to her
assignment to different offices, often in the same day. The Board has held a disability is not
covered where it results from such factors as frustration from not being permitted to work in a
particular environment or hold a particular position.20 As noted by Ms. Breyer, a part-time
flexible employee can be assigned where needed. She noted that its workload at the employing
establishment had changed due to decreases in mail volumes and automation. Appellant stated
12

J.F., 59 ECAB 331 (2008).

13

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005).

14

L.M., Docket No. 13-267 (issued November 15, 2013).

15

D.L., 58 ECAB 217 (2006).

16

K.W., supra note 10; David C. Lindsey, Jr., 56 ECAB 263 (2005).

17

Robert Breeden, 57 ECAB 622 (2006).

18

Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 116 (2004).

19

L.M., supra note 14.

20

See Thomas D. McEuen, supra note 7; Lillian Cutler, supra note 5.

5

her preference to work at the office where she knew the employees and customers, as opposed to
the various offices where she was assigned. She noted that she was fearful at the other stations.
Appellant’s reaction to her assignments can be described as self-generated and not arising in the
performance of duty but due to her personal frustration in not being permitted to work at a
particular work environment.21 Accordingly, there was no management abuse in assigning her to
work in different offices as needed by the employing establishment.
The Board also notes that appellant’s difficulty in getting reimbursed for travel expenses
involves an administrative function. There is no evidence of record that appellant submitted
forms for travel reimbursement and Ms. Breyer indicated that she will look into the issue of
travel pay. The Board finds that appellant has not submitted evidence to establish error or abuse
in the part of the employing establishment with respect to its handing of this administrative
matter.22
Appellant also made general allegations with regard to harassment and poor management.
An employee’s dissatisfaction with perceived poor management is not compensable under
FECA.23 Furthermore, mere perceptions of harassment are not compensable under FECA.24 To
establish entitlement to benefits with regard to harassment, a claimant must establish a factual
basis for the claim by supporting his or her allegations with probative and reliable evidence.25
Appellant did not explain her allegations of harassment, nor provide any evidence of harassment.
Appellant noted that her request for a disability retirement had been granted. The Board
notes that determinations of other federal agencies or governmental bodies are not relevant to the
issue of disability under FECA. The Board has long held that entitlement to benefits under
statutes that have varying standards for establishing disability and eligibility for benefits are not
dispositive in FECA proceedings.26
The Board finds that appellant established a compensable factor under Cutler in that she
had to close various offices without training. The Board finds that the evidence submitted from
Dr. Hui is insufficient to establish causal relation. Dr. Lavian diagnosed adjustment disorder and
mixed depression and anxiety. In a December 21, 2012 one-sentence note, he stated that it was
his professional opinion that the aggravation appellant faced in the workplace established a
causal relationship with her inability to work and perform her job. In a March 27, 2013 two
sentence note, Dr. Lavian stated that it was his professional opinion that requiring her to perform
closing procedures aggravated her underlying condition and contributed to her current disability.
To be of probative medical value, however, a physician’s opinion regarding the cause of an
emotional condition must relate the condition to the specific incidents or conditions of
employment accepted as factors of employment, must be based on a complete and accurate
21

See L.R., Docket No. 14-302 (issued June 6, 2014).

22

See R.C., Docket No. 13-1636 (issued June 16, 2014).

23

Robert Breeden, supra note 17.

24

K.W., supra note 10.

25

D.P., Docket No. 12-1859 (issued March 27, 2013).

26

R.S., Docket No. 10-2221 (issued August 19, 2011).

6

factual history and must contain adequate medical rationale in support of the conclusions.27
Dr. Hui failed to submit a medical report with a full or accurate history of appellant’s psychiatric
condition, family background, prior medical treatment or results of any diagnostic testing. His
brief statements on causal relationship express his conclusion without adequate rationale based
on a full or complete medical history. Although Dr. Lavian did address the compensable factor
in his March 27, 2013 report, his report is not sufficiently well rationalized to establish causal
relation. He did not discuss the nature of appellant’s underlying disability. Dr. Lavian did not
address the specific tasks involved in closing of offices or explain how such tasks caused or
aggravated her emotional condition. In his March 27, 2013 note, he does not discuss appellant’s
current medical diagnosis. Accordingly, Dr. Lavian’s brief notes of record are not sufficiently
well rationalized to establish that her emotional condition is causally related to her federal
employment.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 7, 2014 is affirmed.
Issued: October 22, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

27

Mary J. Ruddy, 49 ECAB 545 (1998); see also L.B., Docket No. 13-1640 (issued March 21, 2014).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-452
Issued: April 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 24, 2014 appellant filed a timely application for review from an October 9,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because
more than 180 days elapsed from November 12, 2013, the date of the most recent merit decision,
to the filing of this appeal, and pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 14, 2010 appellant, then a 58-year-old census clerk, filed a traumatic injury claim
(Form CA-1) alleging that on July 8, 2010 she twisted her right knee when she stepped into a dip
1

5 U.S.C. § 8101 et seq.

in the floor while walking back from a copy center to get labels. She stopped work on July 8,
2010 and returned on July 12, 2010. OWCP accepted appellant’s claim for a sprain of the right
lateral collateral ligament of the knee on September 30, 2010.
In a report dated September 7, 2010, Dr. Jerry Withrow, Board-certified in family
medicine, noted that appellant injured her right knee on July 8, 2010, and reinjured her right knee
at home on July 14, 2010. He diagnosed her with right knee strain.
In a diagnostic report dated October 9, 2010, Dr. Victor Ho, a Board-certified radiologist,
examined the results of a magnetic resonance imaging (MRI) scan of appellant’s right knee. He
reported findings of severe tendinopathy and a partial tear of the quadriceps tendon, which was
incompletely visualized on the study.
On October 19, 2010 Dr. Thomas Buter, a Board-certified orthopedic surgeon, noted that
appellant was not presently working. He stated that her tendon was intact and that surgery was
not indicated. Dr. Buter noted that full recovery was expected and that appellant would be left
with no permanent disability. He released her to return to work without restrictions.
In a record of a telephone conversation dated April 26, 2011, an OWCP representative
noted that appellant stated that, as of late, she was experiencing trouble with her knee and that a
physician had advised her that she had a ligament tear. He informed her that he would need to
see the medical reports to determine how to proceed.
Appellant submitted
September 10, 2010.

physical

therapy

notes

dated

between

August 20

and

A notification of personnel action dated September 25, 2010 noted that appellant had
been terminated from the employing establishment due to the expiration of her appointment.
In a record of a telephone conversation dated June 9, 2011, appellant told an OWCP
representative that new activities at a local school where she now worked, including walking up
and down steps, were causing problems with her knee. The claims examiner advised her that this
activity was a new intervening factor and that she would have to pursue a claim against her
private-sector employer and bill her private insurance.
On September 26, 2013 appellant filed a claim for recurrence. She explained that the
recurrence occurred because she had to stand for a long period. Appellant noted that she had not
been informed during initial treatment that favoring her injured leg could cause additional
distress. She noted that two years of favoring this leg had resulted in severe lower back pain
with a disc out of place and bones on the top half of her body out of alignment. Appellant did
not list a specific date of recurrence. A compensation specialist noted that appellant had
separated from the employing establishment on September 25, 2010 and that the employing
establishment had no knowledge of what other factors may have contributed to her current
condition. The specialist stated that no medical documentation had been submitted linking her
original injury to her current condition.
By letter dated October 9, 2013, OWCP informed appellant of the evidence necessary to
support her claim for recurrence. It noted that she had not submitted medical evidence of her
continued treatment from the date she last received treatment in 2010. OWCP afforded appellant
2

30 days to submit additional evidence and to respond to its inquiries. However, appellant did not
submit additional evidence.
By decision dated November 12, 2013, OWCP denied appellant’s claim for recurrence.
It found that the evidence was not sufficient to establish that she required additional medical
treatment due to worsening of her accepted work-related condition, as she had not submitted
medical evidence indicating a continued need for medical treatment.
By letter dated November 8, 2013 and received on November 20, 2013, appellant
responded to OWCP’s inquiries. She stated that an MRI scan had been performed after her
initial diagnosis revealing a partially torn tendon, with no follow-up after the MRI scan.
Appellant explained that she developed a gait that favored her injured leg, and that this posture
eventually required a visit to a physician for realignment and assistance from back pain. She
noted that she had been unemployed since the 2010 injury.
In a medical note dated January 31, 2014, Dr. Asim Otey, Board-certified in physical
medicine and rehabilitation, referred appellant to physical therapy for evaluation of chronic knee
pain with an old quadriceps tear. He diagnosed her with knee strain.
Appellant submitted reports from physical therapists dated February 5 and 20, 2014.
By letter dated September 25, 2014, appellant explained that in 2013 she had to stand for
a period and that before the end of the day, she had to leave an event earlier than planned due to
the pain. Shortly after OWCP denied her claim for recurrence, participation in a moderate
exercise class caused her knee to swell, and she sought treatment at an emergency room.
Appellant noted that a physician ordered x-rays of her knee and back, which revealed arthritis
and a bone out of alignment at the end of her vertebrae. She further noted that, on the weekend
of September 20, 2014, she went to a fair with her granddaughter, and that she had to sit due to
the pain in her leg and back. Shortly thereafter, appellant was standing in line at a store when
she lost strength in her right leg, and had to catch herself before she fell.
By form letter received on September 29, 2014, appellant requested reconsideration of
OWCP’s November 12, 2013 decision.
By decision dated October 9, 2014, OWCP denied appellant’s request for reconsideration
of her claim and did not review the merits of her case. It noted that the January 31, 2014 letter
from Dr. Otey was irrelevant to her claim, as it did not contain a rationalized medical explanation
as to the relationship of her current condition to the accepted July 8, 2010 incident. OWCP
further noted that the reports from a physical therapist were also irrelevant, as they did not
constitute medical evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new

3

evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.3
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.4 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.5
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.6
ANALYSIS
OWCP issued a November 12, 2013 decision denying appellant’s claim for recurrence, as
she did not submit sufficient medical evidence in support of the claim. By form received on
September 29, 2014, appellant requested reconsideration of this decision.
As noted above, the Board does not have jurisdiction over the merits of the November 12,
2013 decision. The issue presented on appeal is whether appellant met any of the requirements
of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her
claim. In her September 29, 2014 request for reconsideration, and in a statement dated
September 25, 2014, appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, or advance a new and relevant legal argument not previously considered.
Thus, she is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).
The relevant issue in this case is whether appellant has submitted a physician’s reasoned
opinion as to the relationship between her current condition and the incident of July 8, 2010.7 A
claimant may be entitled to a merit review by submitting new and relevant evidence, but
appellant did not submit any new and relevant evidence in this case. The medical report from
Dr. Otey dated January 31, 2014 merely referred appellant for physical therapy, with no
additional commentary on the issue of how her current condition was causally related to the
July 8, 2010 injury. As such, this report was not relevant to the grounds upon which appellant’s
claim for recurrence was denied and was insufficient to require a merit review of appellant’s
claim. The physical therapy reports dated February 5 and 20, 2014 were irrelevant, as they did

2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

3

20 C.F.R. § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

4

See Daniel Deparini, 44 ECAB 657, 659 (1993).

5

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
6

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

7

See Ronald A. Eldridge, 53 ECAB 218, 220 (2001).

4

not constitute probative medical evidence from a physician.8 Similarly, appellant’s own lay
opinion did not constitute medical evidence.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 9, 2014 is affirmed.
Issued: April 16, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

8

See Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000).

9

See R.M., Docket No. 14-1749 (issued December 23, 2014).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.K., Appellant
and
DEPARTMENT OF THE NAVY, HICKHAM
AIR FORCE BASE, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kristie K. Kaululaau, for the appellant
Office of Solicitor, for the Director

Docket No. 12-571
Issued: August 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2012 appellant, through his representative, filed a timely appeal from a
January 12, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying waiver of recovery of an overpayment.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the overpayment decision.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of a $7,541.21
overpayment of compensation; and (2) whether it properly recovered $6,041.21 of the
overpayment from the amount it owed appellant on a schedule award.
1

The record also contains a January 12, 2012 schedule award decision for a two percent impairment of the left
lower extremity. Appellant has not appealed this decision and thus it is not before the Board at this time. See 20
C.F.R. § 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated November 25, 2011,
the Board affirmed an October 4, 2010 decision denying appellant’s request for a prerecoupment
hearing as untimely.3 The Board further affirmed OWCP’s determination that he received an
overpayment of $7,541.21 from August 17, 2009 to January 1, 2010 because it paid him
compensation at an inaccurate pay rate. The Board found, however, that appellant was not at
fault in the creation of the overpayment and remanded the case for OWCP to consider whether
he was entitled to wavier. The facts and circumstances as set forth in the prior decision are
hereby incorporated by reference.
By letter dated December 5, 2011, OWCP requested that appellant complete and submit
an overpayment recovery questionnaire within 30 days. It further advised him that he could
request a telephone conference or a decision based on the written evidence.
In an overpayment questionnaire dated December 21, 2011, received by OWCP on
January 4, 2012, appellant listed his monthly income as $6,701.00. He provided expenses of
$1,450.00 for housing, $1,200.00 for food, $100.00 for clothing, $600.00 for utilities and other
expenses of $1,900.00. Appellant indicated that he made installment payments of $359.13 for an
education loan, $491.85 to the Department of Education, $240.00 to Union Plus, $100.00 to
Health One Visa, $130.00 to Pentagon Federal Credit Union Visa, $150.00 to Hickam Federal
Credit Union Visa, $203.00 to Discover and $150.00 to OWCP, for a total of $1,823.98. He had
savings of $2,167.13. Appellant related that he gave cash to his children in 2010 and 2011 of
$2,000.00 and a loan of $1,500.00 to a daughter for a car. He requested a decision based on the
written evidence and provided supporting financial information.
In an internal memorandum dated January 4, 2012, OWCP noted that appellant had
submitted $1,500.00 as payment of the overpayment, and that a balance remained of $6,041.21.
In a decision dated January 5, 2012, OWCP denied waiver of recovery of the
overpayment. It determined that appellant had not provided a completed overpayment recovery
questionnaire.
In an amended overpayment decision dated January 12, 2012, OWCP denied waiver of
recovery of the overpayment of compensation after considering appellant’s overpayment
recovery questionnaire. It determined that the overpayment recovery questionnaire established
that he had monthly income of $6,701.00 and expenses of $5,250.00, for a difference of
$1,451.00. OWCP denied waiver based on its finding that his income exceeded his expenses
such that he did not require substantially all his income to meet ordinary and necessary living
expenses. It determined that it would recover the remaining overpayment from his schedule
award.4
3

Docket No. 11-543 (issued November 25, 2011). OWCP accepted that appellant sustained a left knee sprain
and left medial meniscal tear on June 14, 2009. It paid him compensation for disability from August 17, 2009 to
January 1, 2010 based on a 40-hour workweek rather than a 72-hour workweek.
4

See supra note 1.

2

By decision dated January 12, 2012, OWCP granted appellant a schedule award for a two
percent permanent impairment of the left lower extremity. The period of the award ran for 5.76
weeks from September 8 to October 18, 2012, for a total amount of $6,554.69. OWCP indicated
that it was deducting the remaining balance of the overpayment, $6,041.12, from the schedule
award.
On appeal, appellant’s representative appeals the overpayment decision, arguing that he
submitted the requested financial information.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA provides that an overpayment must be recovered unless “incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience.” (Emphasis
added.) Thus, a finding that appellant was without fault does not automatically result in waiver
of the overpayment. OWCP must then exercise its discretion to determine whether recovery of
the overpayment would defeat the purpose of FECA or would be against equity and good
conscience.5
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.6 An individual’s liquid assets
include but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds
and certificates of deposits.7 Nonliquid assets include but are not limited to the fair market value
of an owner’s equity in property such as a camper, boat, second home and furnishings and
supplies.8
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.9 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and

5

Supra note 2 at 8129(b).

6

20 C.F.R. § 10.436. OWCP’s procedures provide that assets must not exceed a resource base of $4,800.00 for
an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
7

Id.

8

Id.

9

20 C.F.R. § 10.436.

3

that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.10
ANALYSIS -- ISSUE 1
On prior appeal the Board remanded the case for OWCP to consider waiver of recovery
of the $7,541.21 overpayment of compensation. An overpayment cannot be waived unless
recovery would defeat the purpose of FECA or would be against equity and good conscience. In
order to establish that repayment of the overpayment would defeat the purpose of FECA,
appellant must show that he requires substantially all of his income to meet current ordinary and
necessary living expenses and that his assets do not exceed the resource base as determined by
OWCP’s procedures.11
Appellant completed an overpayment recovery questionnaire on December 21, 2011. He
indicated that he had $2,167.13 in savings. Consequently, appellant’s assets do not exceed the
resource base of $8,000.00 for an individual with a spouse or dependent.12
The next issue is whether appellant requires substantially all of his income to meet
ordinary and necessary living expenses. He indicated that his monthly income was $6,701.00.
Appellant listed expenses of $1,450.00 for housing, $1,200.00 for food, $100.00 for clothing,
$600.00 for utilities and miscellaneous expenses of $1,900.00, which totaled $5,250.00.13
OWCP subtracted $5,250.00 from $6,701.00 to find that he had a monthly surplus of $1,451.00.
An individual is deemed to need substantially all of his monthly income to meet current and
ordinary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.14 Consequently, as appellant’s income exceeded his expenses by more than $50.00, he
did not need substantially all of his income for ordinary and necessary living expenses.
Additionally, the evidence does not demonstrate that recovery of the overpayment would
be against equity and good conscience. Appellant submitted no evidence that he relied upon the
incorrect payments to his detriment or that he would experience severe financial hardship
attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery of the
overpayment.
10

Id. at § 10.437(b)(1).

11

Id. at § 10.436.

12

See supra note 6.

13

Appellant indicated that he made installment payments on loans of $359.13 for an education loan, $491.85 to
the Department of Education, $240.00 to Union Plus, $100.00 to Health One Visa, $130.00 to Pentagon Federal
Credit Union Visa, $150.00 to Hickam Federal Credit Union VISA, $203.00 to Discover and $150.00 to OWCP, for
a total of $1,823.98. While he also indicated $1,900.00 in miscellaneous expenses, he provided no financial
documentation supporting such expenses or explaining whether these expenses were separate from the installment
payments on his loans. It is appellant’s burden to provide the financial information necessary to support his request
to waive recovery of the overpayment. See W.P., 59 ECAB 514 (2008).
14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1) (October 2004); Desiderio Martinez, 55 ECAB 336 (2004).

4

On appeal, appellant notes that he timely submitted the overpayment recovery
questionnaire. As discussed, however, the information contained on the questionnaire is
insufficient to establish that he is entitled to wavier of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.15 Section
10.441(a) of the regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or his or her attention is called to same. If no
refund is made, [OWCP] shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”16
If a sufficiently large lump-sum payment of compensation is due the debtor for a single
period of past entitlement or for a schedule award, the debt should be recovered in full by a
single deduction from compensation owed.17
ANALYSIS -- ISSUE 2
Appellant forwarded OWCP $1,500.00 in payment of the overpayment. The Board does
not have jurisdiction over the recovery of this amount as its jurisdiction with respect to the
recovery of an overpayment is limited to those cases where OWCP seeks recovery from
continuing compensation benefits under FECA.18 OWCP, however, also recovered a portion of
the overpayment, $6,041.21, from a schedule award decision. As this constitutes compensation
benefits under FECA, the Board has jurisdiction over the recovery of this amount.19 OWCP’s
procedures provide that, if a sufficiently large lump-sum payment of compensation is due the
debtor for a single period of past entitlement or for a schedule award, the debt should be
recovered in full by a single deduction from compensation owed.20 Consequently, it properly
recovered the $6,041.21 from appellant’s schedule award as repayment of the remainder of the
overpayment.21 Further, the record reflects that appellant’s monthly income was $6,701.00 and
15

Lorenzo Rodriguez, 51 ECAB 295 (2000).

16

20 C.F.R. § 10.441(a).

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.8.b
(May 2004).
18

See D.R., 59 ECAB 148 (2007).

19

See generally A.P., Docket No. 07-326 (issued June 5, 2007).

20

See supra note 16.

21

See Levon H. Knight, 40 ECAB 658 (1989).

5

his expenses were $5,250.00, which resulted in an excess of $1,451.00 per month, and thus there
is no evidence that recovery from the schedule award would result in hardship.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of a $7,541.21
overpayment of compensation. It further finds OWCP properly recovered $6,041.21 of the
overpayment from the amount owed on a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ALABAMA VETERANS
HOSPITAL, Montgomery, AL, Employer
_________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-2184
Issued: May 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 5, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decisions dated March 20, 2008 which denied his reconsideration
request on the grounds that it was untimely filed and failed to present clear evidence of error.
Because more than one year has elapsed between the most recent Office merit decision, dated
July 7, 2006, and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue on appeal is whether the Office properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
On July 17, 2001 appellant, then a 27-year-old plastics worker filed a traumatic injury
claim alleging that on July 10, 2001 he injured his back when lifting a mold at work. He stopped
work on July 10, 2001 and returned on July 17, 2001 and worked intermittently thereafter. A

July 21, 2000 magnetic resonance imaging scan of the lumbar spine revealed minimal disc bulge
at L4-5 and an annular disc bulge at L5-S1. The Office accepted appellant’s claim for a lumbar
sprain/strain and paid appropriate benefits including wage-loss compensation for intermittent
periods.
Appellant came under the treatment of Dr. Harvey C. Jenkins, a Board-certified
orthopedic surgeon, for lumbar pain which developed after the lifting incident. Dr. Jenkins
diagnosed chronic musculoligamentous strain, minimal disc bulge at L4-5 and L5-S1 and
cervical spine strain with probable lumbar stenosis. On March 8 and June 1, 2006 he treated
appellant for intravertebral disc disorder of the lumbar spine. Dr. Jenkins advised that appellant
was unable to work since November 10, 2004 and his disability was due to his work injury.
Appellant was also treated, from April 2, 2004 to July 28, 2005, by Dr. Darryl D. Robinson, a
Board-certified anesthesiologist, who administered several epidural injections at L4-5 and L5-S1
in 2006. Appellant was treated on September 10, 2004 by Dr. Stephen B. Hopper, a Boardcertified psychiatrist, for anxiety and depression starting in 2004.
On April 14, 2006 appellant filed a Form CA-7, claim for compensation, for the period
beginning November 10, 2004. In a June 9, 2006 statement, he contended that his claims
examiner was unprofessional.
In a decision dated July 7, 2006, the Office denied appellant’s claim for compensation for
the period beginning December 1, 2004. The decision was sent to appellant’s address of record.
In a letter dated October 9, 2007, appellant wrote to the Office to inquire as to the status
of a December 23, 2006 reconsideration request. He noted speaking with a claims examiner who
had no record of his reconsideration request and allegedly told appellant that there were
problems dealing with the prior claims examiner. Appellant alleged that the claims examiner
instructed him to resubmit his reconsideration request. He submitted a copy of a December 23,
2006 request for reconsideration. Also submitted was a partial copy of a July 6, 2006 decision
which noted an address which was crossed out and replaced with appellant’s current address of
record and a copy of a portion of an envelope addressed to the Office. Appellant submitted a
Form CA-7, claim for compensation, for the period beginning November 10, 2004 and reports
from Dr. Jenkins previously of record.
On January 3, 2007 Dr. Jenkins noted treating appellant for intravertebral disc disorder of
the lumbar spine. He advised that appellant was temporarily totally disabled beginning
November 10, 2004 due to his back condition. Dr. Jenkins had treated appellant since 2001 for
problems related to the work injuries.
By decision dated March 20, 2008, the Office denied appellant’s application for
reconsideration on the grounds that the request was not timely and did not present clear evidence
of error by the Office.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office 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 own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”1
The Office, 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)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.2
However, the Office will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation, if the claimant’s application for review shows clear evidence of error
on the part of the Office in its most recent merit decision. To establish clear evidence of error, a
claimant must submit evidence relevant to the issue that was decided by the Office. The
evidence must be positive, precise and explicit and must be manifested on its face that the Office
committed an error.3
To show 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 prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office’s decision.4
Evidence that does not raise a substantial question concerning the correctness of the
Office’s decision is insufficient to establish clear evidence of error.5 It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion.6 This entails a
limited review by the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.7 The Board makes an independent

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

3

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

4

Annie L. Billingsley, supra note 2.

5

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

6

Id.

7

Id.

3

determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.8
ANALYSIS
The Office denied appellant’s claim for compensation in a July 7, 2006 decision. In an
October 9, 2007 letter, appellant requested reconsideration and asserted that he had previously
requested reconsideration on December 23, 2006. The Board has reviewed the case record and
notes that no request dated December 23, 2006 was submitted prior to appellant’s October 9,
2007 letter. On appeal, appellant argues that he timely filed his reconsideration request and that
it was error by the Office that it did not receive the correspondence and that it could have gotten
lost in the holiday mail. Pursuant to the mailbox rule, it is presumed, in the absence of evidence
to the contrary, that a notice mailed to an individual in the ordinary course of business was
received by that individual.9 This presumption arises when it appears from the record that the
notice was properly addressed and duly mailed in the ordinary course of business.10 The
appearance of a properly addressed copy in the case record, together with the mailing custom or
practice of the Office itself, will raise the presumption that the original was received by the
addressee.11 This Board has held that this rule applies equally to claimants and the Office alike,
provided that the conditions which give rise to the presumption remain the same, namely,
evidence of a properly addressed letter together with evidence of proper mailing in the course of
business.12
On October 9, 2007 appellant submitted an appeal form dated December 23, 2006
requesting reconsideration of an Office decision of July 6, 2006.13 However, he submitted no
evidence that the December 23, 2006 appeal form was duly mailed. There is no certified mail
receipt or copy of the envelope to show whether appellant mailed this letter to the proper address
or whether the envelope bore proper postage. Unlike the Office, law firms or other businesses,
appellant is an individual and may not establish proper mailing by business use or custom. With
no evidence of proper mailing, no presumption of receipt arises from the mailbox rule.
Accordingly, the Board finds that appellant’s October 9, 2007 request for reconsideration was

8

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

9

George F. Gidicsin, 36 ECAB 175 (1984) (when the Office sends a letter of notice to a claimant, it must be
presumed, absent any other evidence, that the claimant received the notice).
10

Michelle R. Littlejohn, 42 ECAB 463 (1991).

11

See Larry L. Hill, 42 ECAB 596 (1991).

12

Id.

13

The Board notes that the July 6, 2006 partial Office decision appellant submitted with his October 9, 2007
reconsideration request appears to be identical to the July 7, 2006 decision in the record. It appears as though the
July 6, 2006 decision was originally addressed to appellant at 2424 Knox Road; however, this address was crossed
out and appellant’s current address was noted as 4325 SE 12. It is unclear who made the address change but
appellant noted receiving the decision at his current address. In any event, the record indicates that, on July 7, 2006,
the decision was issued and sent to appellant’s correct address.

4

untimely. Appellant made this request more than one year following the Office’s merit decision
of July 7, 2006.14
The Board also finds that appellant has not established clear evidence of error on the part
of the Office. In the reconsideration request received on October 17, 2007, he asserted that he
timely filed his reconsideration request. These assertions do not purport to show clear evidence
of error in the underlying Office decision which determined that appellant did not establish
work-related disability beginning December 1, 2004.
Appellant submitted reports from Dr. Jenkins dated March 8 and June 1, 2006; however,
the Office had previously considered this evidence in its July 7, 2006 decision. He did not
explain how this evidence was positive, precise and explicit in manifesting on its face that the
Office committed an error. The submission of such cumulative material is not sufficient to raise
a substantial question as to the correctness of the Office’s decision. The January 3, 2007 report
from Dr. Jenkins noted treating appellant for intravertebral disc disorder of the lumbar spine and
opined that appellant was totally disabled since November 10, 2004 due to his work-related back
condition. However, this evidence is insufficient to establish that the Office erred in its denial of
his claim on July 7, 2006. The Board notes that clear evidence of error is intended to represent a
difficult standard. Evidence such as a detailed, well-rationalized medical report which, if
submitted before the merit denial might require additional development of the claim, is
insufficient to establish clear evidence of error.15 Dr. Jenkins’ reports do not raise a substantial
question as to the correctness of the Office’s July 7, 2006 merit decision or demonstrate clear
evidence of error. Consequently, the Office properly found that appellant’s reconsideration does
not establish clear evidence of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

14

See Joseph G. Cutrufello, Docket No 97-2546 (issued June 21, 1999).

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c)
(January 2004).

5

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Y., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-2202
Issued: February 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 6, 2007 nonmerit decision denying her request for further review
on the grounds that it was untimely filed and did not establish clear evidence of error. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this nonmerit decision.
The last merit decision of record was the Office’s June 11, 2005 decision. Because more than
one year has elapsed between the last merit decision and the filing of this appeal on August 30,
2007, the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On January 12, 2005 appellant, then a 49-year-old special use park coordinator, filed a
traumatic injury claim alleging that on December 13, 2004 she was rear-ended while a passenger
in a government vehicle and sustained a left shoulder condition and a headache.
In an April 25, 2005 letter, the Office informed appellant that the evidence was
insufficient to support her claim and requested additional information.
On June 1, 2005 the Office denied appellant’s claim on the grounds that evidence was
insufficient to establish that she sustained an injury in the performance of duty as there was no
diagnosed condition but did accept that the claimed event occurred.
In a June 12, 2005 letter to the Office, appellant explained the actions she took
subsequent to the accident. Additional emergency room records dated December 13, 2004 were
submitted. An unidentified physician noted that appellant had motor vehicle collision with left
shoulder pain and headache.
On March 8, 2007 appellant requested reconsideration. In a separate March 8, 2007
letter, the employing establishment stated that neither they nor appellant received a copy of the
June 1, 2005 decision.
In a June 6, 2007 nonmerit decision, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.2 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3 The Office procedures state
that the Office 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 application for review shows clear

1

5 U.S.C. §§ 8101-8193

2

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

Veletta C. Coleman, 48 ECAB 367 (1997).

2

evidence of error on the part of the Office.4 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.6 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 the Office 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 the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinions or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.7 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.8
ANALYSIS
Appellant claims that she never received the June 1, 2005 decision. She did not assert
that her address changed or that the address used by the Office was otherwise incorrect. The
address used by the Office in its June 1, 2005 decision is the same as the address of record and
the same as the one appellant used in her July 12, 2005 letter. The Board has found that, in the
absence of evidence to the contrary, a letter properly addressed and mailed in the due course of
business, such as in the course of the Office’s daily activities, is presumed to have arrived at the
mailing address in due course. This is known as the mailbox rule.9 Other than the employer’s
statement that the June 1, 2005 decision had not been received, appellant submitted no evidence
substantiating why the presumption would not apply. Whether or not the employer received the
decision on appellant’s claim is not relevant to the issue of whether appellant’s decision letter
was properly addressed and mailed in the due course of business. Therefore the Board finds that
appellant is presumed to have received the June 1, 2005 decision.

4

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: [The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.
20 C.F.R. § 10.607(b).
5

See Nelson T. Thompson, 43 ECAB 919 (1992).

6

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

9

Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

3

The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.10 In this case,
appellant’s March 8, 2007 letter requesting reconsideration was submitted more than one year
after the last merit decision of record, June 1, 2005, and thus, it was untimely. Consequently, she
must demonstrate clear evidence of error by the Office in denying her traumatic injury claim.11
Under the clear evidence of error standard it is not enough that evidence could be
construed to provide a contrary conclusion but must be of sufficient probative value to shift the
weight of the evidence in favor of appellant and raise a substantial question as to the correctness
of the merits of the Office’s decision.12 The weight of the evidence has not been shifted in favor
of appellant. On its face the evidence submitted does not establish that appellant sustained a
traumatic injury in the performance of duty. The Office accepted that the incident occurred as
alleged but found that the medical evidence did not establish that appellant had a diagnosed
condition as a result of the incident. In support of her untimely request for reconsideration,
appellant submitted an emergency room note wherein a physician stated that appellant had a
headache and left shoulder pain. However, a physician’s mere diagnosis of pain does not
constitute a basis for payment of compensation,13 and is clearly of insufficient probative value to
shift the weight of the evidence in favor of appellant and raise a substantial question as to the
correctness of the merits of the Office’s decision. Therefore the Office did not abuse its
discretion when it found that appellant had not established clear evidence of error.
CONCLUSION
The Board finds that the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not establish clear evidence of error.

10

Supra note 3.

11

20 C.F.R. § 10.607(b); Donna M. Campbell, 55 ECAB 241 (2004).

12

See supra note 3.

13

Robert Broome, 55 ECAB 493 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 12, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5