United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.T., Appellant 

and 

U.S. POSTAL SERVICE, VEHICLE 

MAINTENANCE FACILITY, Miami, FL, 

Employer 

__________________________________________ 

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Docket No. 14-1299 

Issued: October 8, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 21, 2014 appellant filed an application for review of the Office of Workers’ 

Compensation Programs’ (OWCP) nonmerit decision dated January 29, 2014. Because more 

than 180 days elapsed from August 6, 2012, 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 this case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for further 

review of the merits as it was untimely filed and failed to establish clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 19, 2012 appellant, then a 54-year-old automotive technician, filed a traumatic 

injury claim (Form CA-1) alleging that on June 12, 2012, he sustained hearing loss of the left ear 

after the backfire of an air compressor. Appellant’s supervisor noted that his knowledge of the 

facts about appellant’s claimed injury did not agree with appellant’s statements, writing that 

there was reason to believe that he had preexisting hearing loss because he had applied to the 

Veteran’s Administration (VA) for hearing loss. 

In a statement dated June 18, 2012, appellant described the incident alleged to have 

caused his hearing loss. On June 12, 2012 he was sent on a road call to replace a flat tire. When 

appellant had finished replacing the tire, he prepared to turn off an air compressor, which 

backfired at close range, causing a loud ringing in his left ear. He reported it to his supervisor, 

who asked him to wait a few days to see if his condition would change. Appellant stated that the 

ringing continued, causing some discomfort. 

By letter dated June 29, 2012, OWCP advised appellant that the evidence was insufficient 

to establish his claim. It requested that he respond to a questionnaire and address the employing 

establishment’s concerns about the circumstances of his injury. OWCP also requested medical 

evidence. Appellant was afforded 30 days to submit the requested evidence. 

In a report dated June 19, 2012, Dr. Theresa H. Blanco, an osteopath, noted that appellant 

stated an air compressor backfired at close range to his left ear.2 Appellant denied any previous 

injury to his left ear, but stated that his left ear had a prior history of decreased hearing. 

Dr. Blanco stated, “There is no direct trauma or injury that is directly related to this injury.” She 

diagnosed appellant with tinnitus. In subsequent progress notes, Dr. Blanco observed that his 

tinnitus was improving. 

In an August 6, 2012 decision, OWCP denied appellant’s claim. It found that the 

evidence was insufficient to establish that the June 12, 2012 incident occurred as alleged because 

he had failed to respond to OWCP’s questionnaire, raising doubt as to the validity of the claim. 

Appellant submitted a witness statement with an illegible signature dated June 26, 2012. 

He wrote at the top of the statement that it was from “the mailman himself.” The statement read, 

“On [June 12, 2012], the compressor made a loud noise when the mechanic turn[ed] it off. It 

sound[ed] like a loud explosion.” 

In a medical report dated July 11, 2012, Dr. Adrien A. Eshraghi, a Board-certified 

otolaryngologist, noted that appellant had previously experienced intermittent tinnitus on the 

right side, but not the left side, until the alleged incident of June 12, 2012. He recommended 

tinnitus cognitive therapy and to avoid coffee, stress, silence or thinking about the noise. In a 

review of an audiological test of that date, an audiologist noted that appellant had normal hearing 

sensitivity at all frequencies in both ears, except for mild sensorineural hearing loss at 4000 hertz 

in the right ear. 

 2

 Dr. Blanco’s certification as a osteopath could not be confirmed by the American Board of Medical Specialties 

or the American Osteopathic Association. 
3

On August 14, 2012 appellant responded to OWCP’s inquiries. He stated that the air 

compressor backfired when he turned it off. Appellant asserted that he had no prior history of 

hearing problems before the filing of this claim, adding “not with constant ringing in my left 

ear.” He stated that he had never applied for hearing loss through the VA. 

In a record of a telephone conversation dated January 3, 2014, appellant informed a 

claims examiner that he had submitted a request for reconsideration in June 2013. The claims 

examiner told him that she could not locate the form in the case record, but that she would see if 

she could get his telephone call treated as a reconsideration request. On January 8, 2014 a claims 

examiner left a message for appellant to inform him that the request had to be in writing. 

On January 27, 2014 appellant requested reconsideration of his claim. He did not submit 

additional evidence. 

By decision dated January 29, 2014, OWCP denied appellant’s request for 

reconsideration. It found that his request was not timely filed and failed to present clear 

evidence of error. 

LEGAL PRECEDENT 

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, 

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.3 The Board has found that the imposition of the 

one-year limitation does not constitute an abuse of the discretionary authority granted OWCP 

under section 8128(a) of FECA.4 When review is sought for merit decisions issued on or after 

August 29, 2011, timeliness is determined by the document receipt date of the reconsideration. 

If the request for reconsideration is received more than one year after the last decision, the 

request must be considered untimely.5

OWCP may not deny an application for review solely on the grounds that the application 

was not timely filed. When an application for review is not timely filed, it must nevertheless 

undertake a limited review to determine whether the application establishes clear evidence of 

error.6

 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if 

the claimant’s application for review shows clear evidence of error on the part of OWCP.7

 3

 20 C.F.R. § 10.607(a). 

4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

5

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). 

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

7

 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, see supra note 5 at Chapter 2.1602.5(a) 

(October 2011). OWCP’s procedure further provides, “The term ‘clear evidence of error’ is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake. For 

example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing 

that the claimant had a dependent but the award was not paid at the augmented rate.” 
4

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which was decided by OWCP.8

 The evidence must be positive, precise and explicit and must 

manifest on its face that OWCP committed an error.9 Evidence which does not raise a 

substantial question concerning the correctness of OWCP’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 This entails a limited review by OWCP of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record 

and whether the new evidence demonstrates clear error on the part of OWCP.12

In order to establish 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 OWCP’s decision.13 

The Board makes an independent determination of whether a claimant has submitted clear 

evidence of error on the part of OWCP such that it abused its discretion in denying merit review 

in the face of such evidence.14

ANALYSIS 

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

application for review. OWCP’s procedures provide that the one-year time limitation period for 

requesting reconsideration begins on the date of the original OWCP decision.15 A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.16 

When review is sought for merit decisions issued on or after August 29, 2011, timeliness is 

determined by the document receipt date of the reconsideration. If the request for 

reconsideration is received more than one year after the last decision, the request must be 

considered untimely.17 As OWCP received appellant’s request for reconsideration on 

January 27, 2014, more than one year after August 6, 2012, his request for reconsideration was 

 8 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

9

 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

10 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

11 See Leona N. Travis, supra note 9. 

12 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

13 See Velvetta C. Coleman, 48 ECAB 367, 370 (1997). 

14 See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993). 

15 20 C.F.R. § 10.607(a). 

16 Robert F. Stone, 57 ECAB 292, 295 (2005). 

17 Supra note 5. 
5

untimely.18 Consequently, he must demonstrate clear evidence of error by OWCP in denying his 

claim for compensation.19 

The underlying claim for compensation was denied on the grounds that appellant had not 

established a factual basis for his claim. On reconsideration, he provided a witness statement 

and responses to OWCP’s inquiries. The only factual evidence received by OWCP regarding 

appellant’s injury prior to the denial of his claim on August 6, 2012 was his statement dated 

June 18, 2012 and the Form CA-1. In OWCP’s June 29, 2012 development letter, appellant was 

informed of the information required to establish his claim and provided a questionnaire to 

complete describing the factual circumstances surrounding his claim. In requesting 

reconsideration, he contended that the additional evidence, i.e., the witness statement and his 

response to the development letter established his claim. The Board finds however that appellant 

did not submit sufficient evidence to establish clear evidence of error in OWCP’s denial of his 

claim. While these statements are generally supportive of his claim to establish that injury 

occurred on June 12, 2012 at the time, place and in the manner alleged, they do not establish 

clear evidence of error on the part of OWCP.20 As noted, it is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion. The evidence, on its 

face, must be positive, precise and explicit that the injury occurred as alleged. Appellant did not 

show clear evidence of error in OWCP’s finding as to the occurrence of an employment incident 

on June 12, 2012 and that this incident caused his tinnitus. 

While appellant submitted various medical reports documenting tinnitus in his left ear, 

this evidence is insufficient to establish that OWCP erred in its denial of his claim, as it does not 

establish, on its face, that his tinnitus was caused by the incident of June 12, 2012. Thus, the 

factual and medical evidence of record does not raise a substantial question as to the correctness 

of OWCP’s denial of his claim.21

As none of the evidence raises a substantial question as to the correctness of OWCP’s 

decision, appellant has failed to establish clear evidence of error on the part of OWCP in denying 

further merit review.22

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. 

 18 The Board notes that appellant stated that he submitted a request for reconsideration in June 2013. While new 

evidence was received at that time, there is no evidence of record indicating that appellant requested reconsideration 

until January 27, 2014. 

19 Supra note 7; see D.G., 59 ECAB 455, 458 (2008). 

20 See V.W., Docket No. 12-1901 (issued March 5, 2013). 

21 See G.B., Docket No. 13-1260 (issued December 2, 2013); J.V., Docket No. 12-90 (issued July 2, 2012). 

22 A.S., Docket No. 11-356 (issued September 16, 2011). 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 8, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board