R.F. and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, WA (Board decision, September 15, 2010)

ECAB final decision. The Board affirmed OWCP's May 14, 2009 denial of R.F.'s request to reconsider his occupational disease claim. It found the request untimely and unsupported by clear evidence of error in the last merits decision. The Board did not review whether workplace exposures caused his leukemia. The Board's decision binds OWCP and is generally not subject to court review under 5 U.S.C. § 8128(b). A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

R.F., a Navy shipyard electronics technician, claimed that workplace exposures caused chronic myelocytic leukemia. OWCP denied the claim after finding insufficient medical evidence of a causal connection. More than a year after the last merits decision, R.F. requested reconsideration and submitted letters to and from his congressional representative, without new medical evidence. The Board found those letters did not address the medical reason for denial or show clear error. It affirmed OWCP's refusal to reconsider and did not reach the underlying disease claim.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.607 govern untimely OWCP reconsideration requests.
• Outcome: May 14, 2009 denial of reconsideration affirmed; underlying claim not reviewed.
• Key point: The letters did not provide medical evidence or show clear error in the earlier decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.F., Appellant
)
)
and ) Docket No. 10-295
) Issued: September 15, 2010
DEPARTMENT OF THE NAVY, PUGET
)
SOUND NAVAL SHIPYARD, Bremerton, WA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On November 9, 2009 appellant filed a timely appeal of the May 14, 2009 decision of the Office of Workers’ Compensation Programs denying his request for reconsideration. Because more than one year has elapsed from the last merit decision dated March 7, 2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits of his case pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.1

ISSUE

The issue is whether the Office properly denied appellant’s request for reconsideration on the grounds that his request was untimely filed and failed to establish clear evidence of error.

1
For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).
 FACTUAL HISTORY

On March 21, 1993 appellant, then a 52-year-old electronics technician, filed a claim for an occupational injury. He alleged that he developed chronic myelocytic leukemia due to exposure to asbestos, mercury, vehicle exhaust fumes, welding and paint fumes, cleaning chemicals and other toxic materials at work. By decisions dated January 23, 2002, March 19, 2003, May 4, 2004, April 11 and May 18, 2006, March 7, 2007 and March 24, 2008, the Office denied appellant’s claim.

On March 19, 2009 appellant requested reconsideration. He submitted a copy of a March 19, 2009 letter to his Congressman requesting that he submit a reconsideration request on his behalf and a March 19, 2009 inquiry from the Congressman to the Office. No medical evidence was submitted.

By decision dated May 14, 2009, the Office denied appellant’s request for reconsideration on the grounds that the request was untimely and failed to establish clear evidence of error in the last merit decision dated March 7, 2007.

LEGAL PRECEDENT

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 provides that an application for reconsideration must be sent within one year of the date of the Office decision for which review is sought. The Office will consider an untimely application only if the application demonstrates clear evidence on the part of the Office in its most recent merit decision. The application must establish, on its face, that such decision was erroneous.2 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.3

ANALYSIS

The merits of appellant’s case are not before the Board. His request for reconsideration was dated March 19, 2009, more than one year after the Office’s March 7, 2007 merit decision and, therefore, is not timely. The issue to be determined is whether appellant demonstrated clear evidence of error in the Office’s March 7, 2007 decision.

The Office’s merit decision on March 7, 2007 denied appellant’s claim for leukemia because the medical evidence was insufficient to establish causal relationship between his condition and factors of his federal employment. The two March 19, 2009 letters submitted with appellant’s request for reconsideration from appellant and his Congressman were not medical evidence addressing the issue of causal relationship. As such, the letters did not raise a

2
20 C.F.R. § 10.607.
3
Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004).

2 substantial question as to the correctness of the Office’s March 7, 2007 merit decision or establish clear evidence of error.

Because appellant’s untimely request for reconsideration did not demonstrate clear evidence of error in the March 7, 2007 merit decision, the Office properly denied his untimely request for reconsideration.

On appeal, appellant argues the merits of his claim and contends that the Office did not properly develop it. As noted, the March 7, 2007 merit decision is not within the Board’s jurisdiction. The issue is whether he submitted with his request for reconsideration medical evidence establishing clear evidence of error in the Office’s March 7, 2007 merit decision. Appellant submitted no medical evidence. The Office properly denied his untimely reconsideration request in its May 14, 2009 decision.

CONCLUSION

The Board finds that the Office properly denied his request for reconsideration on the grounds that it was untimely and failed to demonstrate clear evidence of error in the March 7, 2007 merit decision.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated May 14, 2009 is affirmed.

Issued: September 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3