United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.F., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 15-625 

Issued: June 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 26, 2015 appellant filed a timely appeal from a December 19, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for 

reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of 

error. Because more than 180 days elapsed between the last relevant OWCP merit decision 

dated August 17, 2010 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.2

 1

 5 U.S.C. § 8101 et seq. 

2

 An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the 

decision. 20 C.F.R. § 501.3(e). 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s reconsideration request 

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

FACTUAL HISTORY 

On March 17, 2010 appellant, then a 29-year-old customer service representative, filed a 

traumatic injury claim indicating that on March 11, 2010 he was “assaulted” when his manager 

grabbed/groped his left shoulder, causing him to turn his neck suddenly. He alleged a left 

trapezius muscle strain and secondary laceration of right fifth finger “due to the drowsiness 

effect of his prescribed flex meds.” The employing establishment controverted the claim. 

Further development followed. 

In support of his claim, appellant submitted notes from the employing establishment 

health unit. In a note dated March 13, 2010, Frank Aguayo, a physician assistant, related that 

appellant was seen for left trapezius muscle pain, after his boss grabbed him by the shoulder two 

days prior. OWCP also received an unsigned report from the Cleveland Veterans Affairs 

Medical Center, dated March 16, 2010, which noted that appellant had been seen for laceration 

of the fifth finger. 

By decision dated April 29, 2010, OWCP denied the claim. It found that the March 11, 

2010 claimed event supported that the manager grabbed appellant’s shoulder; however, there 

was no medical evidence which provided a diagnosis in connection to the event. OWCP further 

found that he failed to describe how the finger injury was sustained and, thus, fact of injury was 

not established. 

On June 2, 2010 OWCP received appellant’s May 27, 2010 request for reconsideration. 

Appellant explained that medication he was taking as a result of his assault caused him to 

become “woozy” and lose his balance. When he lost his balance his right hand then went 

through a window and caused a laceration of the right finger. Appellant resubmitted medical 

evidence of record. 

By decision dated August 17, 2010, OWCP denied modification of its April 29, 2010 

decision. It found the evidence on file clearly established that appellant’s supervisor placed his 

hand on appellant’s left shoulder to gain his attention on March 11, 2010; however, there was 

insufficient medical evidence on file to establish that a medical condition arose from that 

incident. OWCP also found that the evidence submitted was insufficient to establish that the 

injury to his right fifth finger occurred as reported. 

On September 25, 2014 OWCP received another request for reconsideration. Appellant 

contended that he was disabled at the time of the filing of his workers’ compensation claim due 

to his physical and mental conditions and requested that time limitations pertaining to his claim 

be waived. He submitted a March 26, 2013 favorable decision from the Social Security 

Administration which found that he had severe impairments, which included a left shoulder 

injury, degenerative disc disease, depression and post-traumatic stress disorder, which were 

disabling as defined in the Social Security Act as of March 13, 2010. 
3

By decision dated December 19, 2014, OWCP denied his reconsideration request on the 

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

LEGAL PRECEDENT 

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

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is received within one year of the date of that decision.3

 

Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding 

the one-year filing limitation set forth in section 10.607 of OWCP regulations, if the claimant’s 

application for review shows clear evidence of error on the part of OWCP.4

 In this regard, 

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

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

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

evidence of error. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary conclusion. 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. To show clear 

evidence of error, the evidence submitted 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.6

 

OWCP procedures note 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.7

 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.8

 

 3 Id. at § 10.607(a) (2011). 

4 Id. at § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000). 

5 See Alberta Dukes, 56 ECAB 247 (2005). 

6 Robert G. Burns, 57 ECAB 657 (2006). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011); 

James R. Mirra, 56 ECAB 738 (2005). 

8 Nancy Marcano, 50 ECAB 110 (1998). 
4

ANALYSIS 

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

request for reconsideration. The most recent OWCP merit decision in this case was issued on 

August 17, 2010. Appellant did not request reconsideration until September 25, 2014, more than 

one year after the August 17, 2010 merit decision. Therefore, his reconsideration request was 

not timely filed. While appellant has requested that the time limitation be waived due to his 

physical and mental condition, he has not submitted any medical evidence to substantiate that he 

was incompetent and incapable of filing a request for reconsideration during the year following 

August 17, 2010.9

 Consequently, he must demonstrate clear evidence of error by OWCP in 

denying his request for a merit review of his claim. 

The Board finds that appellant has not established clear evidence of error in OWCP’s 

December 19, 2014 decision. As noted, the occurrence of the March 11, 2010 work incident is 

not in dispute. The claim was denied because the medical evidence did not establish that the 

March 11, 2010 incident caused an injury or that appellant sustained a laceration secondary to 

the March 11, 2010 work incident. 

In support of his untimely request for reconsideration, appellant submitted a March 26, 

2013 decision from the Social Security Administration which found that he met the medical 

requirements for social security disability benefits as of March 13, 2010. Although the Social 

Security Administration decision noted a left shoulder condition, as well as degenerative disc 

disease, depression, and post-traumatic stress disorder, it is insufficient to establish clear 

evidence of error. The Board has reviewed a similar case, B.U.,10 wherein appellant alleged that 

a Social Security Administration decision regarding a claim for disability benefits, established 

her FECA claim. The Board held that entitlement to benefits under another statute does not 

establish entitlement to benefits under FECA. Thus, the Social Security Administration decision 

was not relevant to the underlying issue and was not of sufficient probative value to shift the 

weight of the evidence or raise a substantial question as to the correctness of OWCP’s decision.11

The Board therefore finds that the March 26, 2013 Social Security Administration 

decision that appellant submitted in support of his reconsideration request did not establish clear 

evidence of error. Appellant has not established clear evidence of error in August 17, 2010 

decision which denied his claim. 

CONCLUSION 

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

untimely filed and failed to establish clear evidence of error. 

 9 See D.B., Docket No. 10-976 (issued December 1, 2010). 

10 Docket No. 10-721 (issued October 25, 2010). 

11 Id. 
5

ORDER 

IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 2, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board