United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.L., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

FOREST SERVICE, CASUAL FIREFIGHTERS, 

Albuquerque, NM, Employer 

__________________________________________ 

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Docket No. 15-0931 

Issued: December 18, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 23, 2015 appellant filed a timely appeal from a December 1, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from August 1, 2013, the date of the most recent OWCP merit decision, to the filing of 

this appeal, 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 the claim.2

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

 Appellant filed a timely request for oral argument. By order dated October 16, 2015 the Board, after exercising 

its discretion, denied his request, finding that his arguments could be adequately addressed in a decision based on a 

review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0931 (issued 

October 16, 2015). 
2

FACTUAL HISTORY 

On June 19, 2013 appellant, then a 51-year-old forestry technician, filed a Form CA-1, 

traumatic injury claim, alleging that on June 16, 2013 he sustained cardiac arrest due to physical 

exertion and possible high altitude while hiking to a fire at Rocky Mountain National Park. He 

stopped work on June 16, 2013. 

By letter dated June 20, 2013, OWCP advised appellant of the type of factual and 

medical evidence needed to establish his claim and requested that he submit such evidence, 

particularly requesting that he submit a physician’s reasoned opinion addressing the relationship 

of his claimed condition and specific employment factors. 

Appellant submitted witness statements from Tim Murphy and Jose Gonzales, fellow 

firefighters, who noted on June 16, 2013 their crew was hiking to a fire at Rocky Mountain 

National Park at an elevation of 10,000 feet. During this hike appellant had several seizures and 

was slouched against a tree. Mr. Murphy and Mr. Gonzales performed coronary pulmonary 

resuscitation until the medics arrived. Appellant was subsequently transported to a hospital. 

Appellant submitted hospitalization records where he was treated by Dr. Peter Dixon 

Riley, a Board-certified internist, from June 16 to July 3, 2013, for cardiac arrest. Dr. Dixon 

noted that appellant was a firefighter in Estes Park and experienced mild shortness of breath 

which he attributed to the altitude. Appellant reported hiking to a worksite on June 16, 2013 and 

then he slumped over and had minor convulsions. Dr. Riley noted that appellant was found to 

have no pulse and was shocked, intubated, and then transferred to the hospital. He diagnosed 

cardiac arrest at Rocky Mountain Park, possible seizure activity, acute respiratory failure, 

encephalopathy, anoxic, elevated liver function tests with a normal echocardiogram. On 

June 27, 2013 appellant underwent an urgent coronary artery bypass performed by Dr. Allan 

Brants, a Board-certified thoracic surgeon, who diagnosed severe coronary artery disease, left 

ventricle ejection fraction measured at 40 percent, no significant valvular heart disease pursuant 

to an echocardiogram, presentation with myocardial infarction and cardiac arrest suffered out of 

hospital and hypertension. A discharge summary prepared by Dr. Barry Ray Smith, a Boardcertified cardiologist, dated July 3, 2013, diagnosed cardiac arrest and three vessel coronary 

artery disease. Dr. Smith noted that appellant underwent a multi-vessel bypass surgery after 

cardiac catheterization and implantation of an implantable cardioverter-defibrillator (ICD). 

In a decision dated August 1, 2013, OWCP denied appellant’s claim, finding that he had 

failed to submit sufficient medical evidence establishing that the medical condition was causally 

related to the work event. 

In an appeal request form dated July 25, 2014, but received by OWCP on September 5, 

2014, appellant requested reconsideration.3

Appellant submitted duplicate copies of his hospital admission reports from June 16 to 

July 3, 2013. He came under the treatment of Dr. Thampi K. John, a Board-certified 

cardiologist, on July 31, 2013, for coronary artery disease, cardiac arrest, and history of ICD 

 3

 Appellant initially faxed the appeal request form to his employing establishment on July 25, 2014, but did not 

send it to OWCP at that time. 
3

implantation. Dr. John noted that appellant had recently been treated for cardiac arrest. 

Appellant reported being a firefighter who worked in the Rocky Mountain National Park where 

he had a cardiac arrest. He subsequently underwent a cardiac workup which included cardiac 

catheterization and coronary artery bypass surgery. Dr. John diagnosed coronary artery disease 

status post bypass surgery, ventricular tachyarrhythmia and hypertension. In a July 9, 2014 

report, he diagnosed coronary artery disease status post bypass surgery and cardiac arrest. 

Dr. John noted that appellant had cardiac arrest when he was working as a firefighter. He noted 

that appellant’s cardiac arrest and myocardial infarction was most probably precipitated by 

strenuous activity in which he was engaged as a firefighter. 

By decision dated December 1, 2014, OWCP denied appellant’s request for 

reconsideration as it was untimely filed and failed to establish clear evidence of error. 

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.”4

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.5

 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.6

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 shift the weight of the evidence in favor of the claimant 

and raise a substantial question as to the correctness of OWCP’s decision.7

 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.607(a). 

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

7 Annie L. Billingsley, 50 ECAB 210 (1998). 
4

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 the 

evidence previously of record and whether the new evidence demonstrates clear error on the part 

of OWCP.10 The Board makes an independent determination as to whether a claimant has 

submitted clear evidence of error on the part of OWCP.11

ANALYSIS 

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

application for review. As noted, an application for reconsideration must be received by OWCP 

within one year of the date of OWCP’s decision for which review is sought.12 As appellant’s 

request for reconsideration was not received by OWCP until September 5, 2014, more than one 

year after issuance of the August 1, 2013 merit decision, it was untimely. Consequently, he must 

demonstrate clear evidence of error by OWCP in its August 1, 2013 decision denying his claim 

for compensation. 

The Board finds that appellant has not established clear evidence of error on the part of 

OWCP. In his September 15, 2014 reconsideration request, appellant disagreed with OWCP’s 

decision denying his claim for compensation. 

In support of his reconsideration request, appellant resubmitted copies of reports from his 

hospital admission from June 16 to July 2, 2013. OWCP had previously considered this 

evidence and in submitting these documents appellant did not explain how this evidence was 

positive, precise, and explicit in manifesting on its face that OWCP committed an error in 

denying his claim for compensation. It is not apparent how resubmission of this evidence is 

sufficient to raise a substantial question as to the correctness of OWCP’s decision. Thus, these 

reports are insufficient to establish clear evidence of error. 

Appellant submitted a July 31, 2013 report from Dr. John who treated him for cardiac 

arrest. He reported being a firefighter who worked in Rocky Mountain National Park when he 

suffered cardiac arrest. Dr. John diagnosed coronary artery disease status post bypass surgery, 

ventricular tachyarrhythmia and hypertension. On July 9, 2014 he noted that appellant had 

cardiac arrest when he was working as a firefighter. Dr. John noted that appellant’s cardiac 

arrest and myocardial infarction were most probably precipitated by the strenuous activity he 

engaged in as a firefighter at that time. He diagnosed coronary artery disease status post bypass 

surgery and history of cardiac arrest. While this evidence does support appellant’s claim, it is 

not enough to raise a substantial question as to the correctness of OWCP’s August 1, 2013 

decision. This evidence is not so positive, precise, and explicit that it manifests on its face that 

OWCP committed an error. The Board notes that clear evidence of error is intended to represent 

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

9 Id.

10 Id.

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

12 20 C.F.R. § 10.607(a). 
5

a difficult standard. The Board has found that the submission of 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 sufficient to establish clear evidence of 

error.13

Thus, the Board finds that appellant has not established clear evidence of error by OWCP 

in its August 1, 2013 decision. 

On appeal, appellant reiterates assertions that he made before OWCP indicating that he 

had submitted sufficient medical evidence to support that his myocardial infarction was causally 

related to the work incident of June 16, 2013. He also asserted that OWCP erred in not finding 

clear evidence of error as he submitted critical information from his cardiologist concerning 

causal relationship. However, as noted, the Board does not have jurisdiction over the merits of 

the claim. As explained, appellant has not established clear evidence of error by OWCP. 

CONCLUSION 

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

to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the December 1, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 18, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 D.G., 59 ECAB 455 (2008).