United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.J., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-1195 

Issued: October 8, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On April 29, 2014 appellant filed a timely appeal from a January 28, 2014 decision of the 

Office of Workers’ Compensation Programs (OWCP) which denied appellant’s reconsideration 

request on the grounds that it was untimely filed and failed to present clear evidence of error. 

Because more than 180 days has elapsed between the most recent OWCP merit decision, dated 

January 10, 2013, and the filing of this appeal on April 29, 2014, the Board lacks jurisdiction to 

review the merits of appellant’s claim 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 determined that appellant’s request for 

reconsideration was not timely filed and failed to present clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 9, 2012 appellant, then a 37-year-old special agent, filed a Form CA-2, 

occupational disease claim, alleging that she participated in a cardiovascular workout on 

November 1, 2012 and while at work she felt lightheaded and experienced chest pains and 

nausea and was taken to the hospital. She first became aware of her condition and realized it was 

causally related to her employment on November 1, 2012. Appellant stopped work on 

November 1, 2012. 

Appellant was treated by Dr. Jonathan Reiner, a Board-certified cardiologist, on 

November 1, 2012 for chest pains which developed after working out. He performed a 

cardiovascular catheterization and successfully repaired an acutely occluded left anterior 

descending coronary artery. On November 1, 2012 appellant was treated by Dr. Allen Solomon, 

a Board-certified cardiologist, for severe chest pain and atrial fibrillation. Dr. Solomon noted 

that appellant underwent a catheterization and was found to have an occluded artery which was 

repaired. In a November 4, 2012 report, Dr. Richard J. Katz, a Board-certified cardiologist, 

performed a transthoracic echocardiogram and diagnosed small, circumferential pericardial 

effusion and left ventricular segmental wall motion abnormality, extensive injury or infarction of 

the septal, anterior and anterolateral walls. 

In a letter dated December 5, 2012, OWCP advised appellant of the type of factual and 

medical evidence needed to establish her claim and requested that she submit such evidence. It 

also requested the employing establishment provide comments from a knowledgeable supervisor 

addressing appellant’s statements. No response was received. 

In a decision dated January 10, 2013, OWCP denied appellant’s claim as the evidence 

was not sufficient to establish that the injury and events occurred as alleged. 

In an appeal form dated January 9, 2014, and received by OWCP on January 10, 2014, 

appellant requested reconsideration. In a statement dated January 8, 2013, she indicated that as 

part of her employment she was authorized to exercise for three hours per week and she 

participated in an approved exercise program which was followed by chest pain and a diagnosed 

myocardial infarction. Appellant asserted that as a result of the cardiovascular exercise required 

as part of her job she had a myocardial infarction. 

Appellant submitted new evidence and evidence previously of record. New evidence 

included a report from Dr. Miriam L. Fishman, a cardiology fellow, who noted that on 

November 1, 2012 appellant was catheterized and diagnosed with an occlusion of the proximal 

left anterior descending artery which was stented and myocardial infarction. Appellant 

submitted discharge instructions from a nurse dated November 3, 2012, who diagnosed heart 

attack and returned appellant to restricted duty. A report from Dr. Reiner dated January 23, 2013 

diagnosed status post myocardial infarction. In a May 3, 2013 report, Dr. Katz noted that an 

exercise stress test was normal. 

By decision dated January 28, 2014, OWCP denied appellant’s request for 

reconsideration as it was untimely and did not establish clear evidence of error. 
3

LEGAL PRECEDENT 

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

it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his 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.”2

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

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

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

one year of the date of OWCP’s decision for which review is sought.3

 However, OWCP 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 OWCP 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 OWCP. The evidence must be positive, precise and 

explicit and must be manifest on its face that OWCP committed an error.4

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 OWCP’s decision.5

 

Evidence that does not raise a substantial question concerning the correctness of OWCP’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.7 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.8

 The Board makes an independent determination 

as to whether a claimant has submitted clear evidence of error on the part of OWCP.9

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607(a). 

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

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

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

7 Id.

8 Id.

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 
4

ANALYSIS 

OWCP issued its most recent merit decision on January 10, 2013 which denied 

appellant’s claim for an occupational disease. The January 28, 2014 nonmerit decision found 

that appellant’s request for reconsideration dated January 9, 2014, and received January 10, 

2014, was untimely. Since her request for reconsideration was received by OWCP on 

January 10, 2014, it was filed within one year of OWCP’s January 10, 2013 merit decision and 

therefore was timely. The Board finds that appellant’s reconsideration request was timely filed. 

On remand OWCP should treat as timely appellant’s January 10, 2014 request for 

reconsideration and consider whether the request is sufficient to warrant a merit review under the 

standard for evaluating a timely reconsideration request.10 Following this and such other 

development as necessary, it shall issue an appropriate decision. 

CONCLUSION 

The Board finds that OWCP improperly denied as untimely appellant’s request for 

reconsideration of the January 10, 2013 decision. 

 10 See 20 C.F.R. § 10.606(b). 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 28, 2014 decision of OWCP is set 

aside and remanded for further proceedings consistent with this decision of the Board. 

Issued: October 8, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board