United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

U.S. POSTAL SERVICE, CAPITAL VEHICLE 

MAINTENANCE FACILITY, Washington, DC, 

Employer 

__________________________________________ 

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Docket No. 14-60 

Issued: May 27, 2014 

Appearances: Case Submitted on the Record

Brian McLaurin, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 17, 2013 appellant, through his representative, filed a timely appeal from a 

July 12, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) 

denying his untimely request for reconsideration. Because more than 180 days elapsed from the 

most recent merit decision dated November 3, 2011 to the filing of this appeal, the Board lacks 

jurisdiction to review the merits of the case pursuant to the Federal Employees’ Compensation 

Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

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

untimely filed and lacking clear evidence of error. 

On appeal, appellant’s representative contends that appellant sustained an injury on 

August 29, 2011 while in the performance of duty. He further contends that appellant provided 

 1

 5 U.S.C. § 8101 et seq. 
2

the additional information regarding the August 29, 2011 incident requested by OWCP to his 

immediate supervisors who failed to forward the information to OWCP. 

FACTUAL HISTORY 

On September 6, 2011 appellant, then a 48-year-old body and fender mechanic, filed a 

traumatic injury claim alleging that on August 29, 2011 he developed pain in his neck as a result 

of a work-related motor vehicle accident. He stated that he was towing a vehicle when the back 

of the vehicle being towed was hit by a trash truck while he was stopped at a traffic light. 

In a September 5, 2011 verification of treatment report, Dr. Glen M. Jacob, a Boardcertified internist, stated that appellant was treated on that day for neck pain related to a motor 

vehicle accident. 

By letter dated September 27, 2011, OWCP advised appellant that the evidence submitted 

was insufficient to establish his claim. It requested factual and medical evidence. Appellant was 

afforded 30 days to submit the requested evidence. 

In a November 3, 2011 decision, OWCP denied appellant’s claim. It found that the 

evidence was insufficient to establish that the incident occurred as alleged and that he failed to 

submit any medical evidence containing a medical diagnosis in connection with his injury. 

By letter dated April 16, 2013, received by OWCP on April 23, 2013, appellant, through 

his union representative, requested reconsideration and submitted new evidence. 

In a March 28, 2012 narrative statement and an undated narrative statement, appellant 

described the August 29, 2011 incident. He was stopped at a traffic light when a vehicle he was 

towing was struck in the rear by a dumpster truck. Appellant immediately contacted his current 

supervisor, Mr. Posey, who arrived at the accident scene within 20 minutes. When he returned to 

the employing establishment, he reported having pain on the right side of his neck to Mr. Posey. 

Appellant sought medical treatment on September 5, 2011 and filed a report with a Mr. Bowser 

on the same day. 

In a September 5, 2011 progress note, Abebech Haile, a registered nurse, listed a history 

of injury that appellant had a motor vehicle accident while driving a tow truck on 

August 29, 2011. Nurse Haile stated that he had neck pain with spasm due to the accident. 

In a September 5, 2011 narrative report, Dr. Jacob advised that appellant had cervicalgia 

caused by a motor vehicle accident. 

In progress notes dated September 8 through October 11, 2011, Dr. Rupa A. Varma, a 

Board-certified internist, listed a history that he evaluated appellant after having a motor vehicle 

accident driving a tow truck on August 29, 2011. He provided findings on physical examination 

and diagnosed, among other things, neck muscle strain and cervicalgia. In verification of 

treatment reports dated September 27 and October 11 and 26, 2011, Dr. Varma advised that 

appellant sustained neck strain with radiculopathy due to a work-related motor vehicle accident 

on August 29, 2011. Appellant was unable to work from September 27 through 
3

October 28, 2011. Dr. Varma released appellant to return to light-duty work with restrictions on 

October 31, 2011. 

In a September 28, 2011 report, Dr. Jan K. Walecki, a Board-certified radiologist, 

advised that diagnostic imaging revealed straightening of the cervical spine due to muscle spasm. 

He further advised that the examination was sonographically normal. 

Progress notes from appellant’s physical therapists and physical therapy assistant 

addressed the treatment of his cervical pain from September 29 to October 26, 2011. 

An unsigned report dated September 22, 2011 from Kaiser Permanente indicated that 

appellant’s blood pressure was checked and found to be at a goal of 139/89 or lower. 

In a July 12, 2013 decision, OWCP denied appellant’s request for reconsideration, 

without a merit review. It found that it was not filed within one year of its November 3, 2011 

decision and did not establish clear evidence of error. 

LEGAL PRECEDENT 

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

claimant must file his or her application for review within one year of the date of that decision.2 

The Board has found that the imposition of the one-year time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.3

OWCP, however, 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.4

 OWCP’s 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.5

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

which was decided by OWCP.6 The evidence must be positive, precise and explicit and must 

 2

 20 C.F.R. § 10.607(a). 

3

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

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

5 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004). 

OWCP’s procedures further provide that 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 an error (for example, proof that a 

schedule award was miscalculated). Evidence such as a detailed well-rationalized medical report which, if 

submitted before the denial was issued, would have created a conflict in medical opinion requiring further 

development, is not clear evidence of error. Id. at Chapter 2.1602.3c. 

6 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 
4

manifest on its face that OWCP committed an error.7 Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to establish 

clear evidence of error.8

 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.9

 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.10 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 OWCP’s decision.11

ANALYSIS 

The Board finds that appellant filed an untimely request for reconsideration. OWCP 

procedures provide that the one-year time limitation period for requesting reconsideration begins 

on the date of the original OWCP decision.12 A right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues.13 As appellant’s April 16, 2013 

request for reconsideration was received on April 23, 2013, more than one year after the last 

merit decision of record dated November 3, 2011, it was untimely.14 Consequently, he must 

demonstrate clear evidence of error by OWCP in denying his claim for compensation.15

The Board finds that appellant’s untimely request for reconsideration failed to 

demonstrate clear evidence of error. In its November 3, 2011 decision, OWCP denied 

appellant’s claim because he failed to submit sufficient evidence demonstrating that he was 

involved in a work-related motor vehicle accident on August 29, 2011. Thereafter, the only 

additional factual evidence submitted was appellant’s own narrative statements, describing the 

August 29, 2011 incident. The record does not show any report or document issued by the 

employing establishment or police report confirming that the August 29, 2011 motor vehicle 

accident occurred as alleged. The Board finds, therefore, that OWCP properly found that 

appellant’s narrative statements did not establish clear evidence of error. 

 7 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

9 See supra note 7. 

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

11 Leon D. Faidley, Jr., supra note 3. 

12 20 C.F.R. § 10.607(a). 

13 See Robert F. Stone, 57 ECAB 292 (2005). 

14 See supra note 5 at Chapter 2.1602.4 (October 2011). For decisions issued on or after August 29, 2011, the 

one-year period begins on the date of the original decision and the application for reconsideration must be received 

by OWCP within one year of the date of OWCP’s decision for which review is sought. 

15 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 
5

Although the progress notes and reports from Nurse Haile and Drs. Jacob and Varma 

found that appellant injured his neck as a result of a motor vehicle accident that occurred while 

he was driving a tow truck on August 29, 2011, none of this evidence indicated whether the tow 

truck was owned by his employing establishment. The remaining medical evidence did not 

provide a history of the claimed injury. As none of the evidence raises a substantial question 

concerning the correctness of OWCP’s November 3, 2011 decision, the Board finds that 

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

merit review. 

CONCLUSION 

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

the basis that it was untimely filed and did not establish clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the July 12, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed.16

Issued: May 27, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision was no longer a member 

of the Board after May 16, 2014.