United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.P., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, ROBINS 

AIR FORCE BASE, Warner Robins, GA, 

Employer 

__________________________________________ 

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Docket No. 16-1402 

Issued: December 15, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 20, 2016 appellant filed a timely appeal of a June 14, 2016 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days elapsed since 

the last merit decision dated March 15, 1991 to the filing of this appeal, pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks 

jurisdiction over the merits of this case. 

ISSUE 

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

was untimely filed and failed to demonstrate clear evidence of error. 

 1

 Appellant initially filed a timely request for oral argument before the Board. On July 6, 2016 the Board 

received appellant’s letter which withdrew his request for oral argument. The Board will therefore proceed with a 

review of the record. 

2

 5 U.S.C. § 8101 et seq. 
2

On appeal appellant argues that OWCP erred in finding that he failed to demonstrate 

clear evidence of error. 

FACTUAL HISTORY 

Appellant’s claim has previously been before the Board on multiple appeals. The facts 

and circumstances of the prior appeals are set forth in the Board’s prior decisions and are 

incorporated herein by reference.3 The relevant facts are as follows. 

On July 25, 1988 appellant, then a 38-year-old computer operator, filed a traumatic injury 

claim (Form CA-1) alleging that on July 14, 1988 he injured his back when he tripped and fell 

over a box. OWCP accepted the claim for a low back strain. 

Appellant filed a recurrence of disability (Form CA-2a) alleging disability as of July 3, 

1989 causally related to his July 14, 1988 employment injury. OWCP denied this claim on 

January 16, 1990 finding that he failed to submit evidence sufficient to establish that his current 

back condition was causally related to his July 14, 1988 employment injury. On November 19, 

1990 appellant timely requested reconsideration. On March 15, 1991 OWCP reviewed the 

merits of the claim and denied modification of the prior decision. It found that the medical 

 3

 Docket No. 94-544 (issued July 19, 1995) (the Board affirmed a November 9, 1993 nonmerit OWCP decision 

denying reconsideration of a March 15, 1991 OWCP decision); Docket No. 01-798 (issued October 9, 2001) (the 

Board affirmed a November 27, 2000 decision denying appellant’s reconsideration request as it was untimely filed 

and failed to demonstrate clear evidence of error); Docket No. 03-887 (issued June 5, 2003) (the Board affirmed a 

February 11, 2003 OWCP decision denying appellant’s reconsideration request as untimely filed and failed to 

demonstrate clear evidence of error); Docket No. 03-905 (issued January 21, 2004) (the Board issued an order 

remanding the case for reconstruction of the record); Docket No. 04-64 (issued August 9, 2005) (the Board affirmed 

OWCP’s October 7, 2003 decision denying appellant’s request for reconsideration as it was untimely filed and failed 

to demonstrate clear evidence of error); Docket No. 06-875 (issued September 8, 2006 (the Board affirmed OWCP’s 

January 23, 2006 nonmerit decision denying appellant’s request for reconsideration of the March 15, 1991 decision 

as it was untimely filed and failed to demonstrate clear evidence of error); Docket No. 07-55 (issued March 27, 

2007) (the Board affirmed OWCP’s September 29, 2006 nonmerit decision denying appellant’s request for 

reconsideration of the March 15, 1991 decision as it was untimely filed and failed to demonstrate clear evidence of 

error); Docket No. 07-1907 (issued January 15, 2008) (the Board issued an order dismissing appellant’s appeal as he 

had not appealed from a final decision of OWCP); Docket No. 08-1121 (issued November 3, 2008) (the Board 

affirmed OWCP’s February 28, 2008 nonmerit decision denying appellant’s request for reconsideration of the 

March 15, 1991 decision as it was untimely filed and failed to demonstrate clear evidence of error); Docket No. 10-

334 (issued August 4, 2010) (the Board issued an order dismissing appellant’s appeal as he had failed to file a timely 

appeal of OWCP’s May 15, 2009 nonmerit decision; Docket No 11-1626 (issued February 14, 2012) (the Board 

affirmed OWCP’s July 5, 2011. On February 14, 2012 the Board affirmed a June 21, 2011 nonmerit decision 

denying appellant’s request for reconsideration of the March 15, 1991 decision as it was untimely filed and failed to 

demonstrate clear evidence of error), Erratum Docket No. 11-1626 (issued April 26, 2012), petition for recon. 

denied, Docket No. 11-1626 (issued July 26, 2012). By decision dated September 10, 2013, the Board affirmed an 

OWCP nonmerit decision dated February 1, 2013 denying his request for reconsideration as it was untimely filed 

and failed to demonstrate clear evidence of error. Docket No. 13-734 (issued September 10, 2013), petition for 

recon. denied, Docket No. 13-734 (issued May 2, 2014). On August 14, 2014 the Board issued an order dismissing 

appellant’s December 26, 2013 petition for reconsideration due to the Board’s lack of jurisdiction as the request for 

reconsideration was not filed within 30 days of the Board’s September 10, 2013 decision. By decision dated 

December 3, 2015, the Board affirmed a June 22, 2015 decision denying appellant’s request for reconsideration as it 

was untimely filed and failed to demonstrate clear evidence of error. Docket No. 15-1609 (issued 

December 3, 2015). On December 23, 2015 the Board issued an order dismissing appellant’s appeal as it was 

duplicative of an earlier appeal. Docket No. 15-1883 (issued December 23, 2015). 
3

evidence failed to demonstrate that the claimed condition or disability for work was causally 

related to appellant’s accepted employment injury. 

The March 15, 1991 decision is the last merit decision regarding appellant’s July 3, 1989 

recurrence claim. The statement of appeal rights accompanying OWCP’s March 15, 1991 merit 

decision notified appellant that any further request for reconsideration must be made within one 

year of the date of the decision, i.e., within one year of March 15, 1991. 

In letters dated April 1 and 13, 2016, appellant requested reconsideration and asked 

OWCP to review all prior decisions and the current medical evidence. He argued that OWCP 

failed to consider his mental status when finding that he failed to establish good reason for filing 

an untimely request for reconsideration. In his April 13, 2016 letter, appellant argued that the 

medical evidence established that he was entitled to receive compensation benefits and was 

totally disabled due to his accepted work injury. He further argued that OWCP failed to consider 

his mental illness when finding that he had filed an untimely request for reconsideration. 

In support of his request, appellant submitted a June 30, 2014 report from Dr. Harvey A. 

Jones, an attending general surgeon and an undated claim for a recurrence of disability (Form 

CA-2a) beginning July 14, 1988. He also resubmitted evidence previously considered by the 

Board and OWCP including a July 10, 1989 report by Dr. Jones, a March 14, 2012 report by 

Dr. Benjamin M. Johnston, a treating Board-certified internist, and an October 11, 1990 notice of 

separation by the employing establishment. 

Dr. Johnston, in his March 14, 2012 report, noted that appellant attributed his recurrent 

lumbosacral pain to a 1988 employment injury. He opined that appellant’s current spinal 

problems were the result of the July 14, 1988 employment injury. 

In his June 30, 2014 report, Dr. Jones provided a history of appellant’s treatment and 

opined that appellant had sustained a permanent injury due to the accepted 1988 work injury. He 

also reported that appellant became depressed and became narcotic dependent following the 

1989 surgery. According to Dr. Jones this resulted in appellant’s incoherence and failure to 

make proper decisions such as applying for permanent and total disability. 

By decision dated June 14, 2016, OWCP determined that appellant’s request for 

reconsideration was untimely filed and failed to demonstrate clear evidence of error. 

LEGAL PRECEDENT 

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

authority under section 8128(a) of FECA.4

 OWCP will not review a decision denying or 

terminating a benefit unless the application for review is received within one year of the date of 

 4

 5 U.S.C. § 8101 et seq. 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. See J.S., Docket No. 10-385 

(issued September 15, 2010); Andrew Fullman, 57 ECAB 574 (2006); Adell Allen (Melvin L. Allen), 55 ECAB 

390 (2004). 
4

that decision.5

 When an application for review is untimely, OWCP undertakes a limited review 

to determine whether the application demonstrates clear evidence that OWCP’s final merit 

decision was in error.6 OWCP procedures provide that it will reopen a claimant’s case for merit 

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

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

 

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears 

on the prior evidence of record.8

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

issue which was decided by OWCP.9

 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.10 Evidence which does not raise a 

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

demonstrate clear evidence of error.11 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.12 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.13 To 

demonstrate 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 shift the weight of the evidence in favor of the claimant 

and raise a substantial question as to the correctness of OWCP’s decision.14

The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP such that OWCP abused its discretion in denying 

merit review in the face of such evidence.15

 5

 20 C.F.R. § 10.607; see also E.R., Docket No. 09-1655 (issued March 18, 2010); Debra McDavid, 57 ECAB 

149 (2005); Alan G. Williams, 52 ECAB 180 (2000). 

6 B.W., Docket No. 10-323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007) Leon J. Modrowski, 55 

ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990). 

7 See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely 

application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its 

most recent merit decision. The application must establish, on its face, that such decision was erroneous.” 20 

C.F.R. § 10.607(b). 

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

9 See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992). 

10 See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991). 

11 See Leon J. Modrowski, supra note 6; Jesus D. Sanchez, supra note 6. 

12 See Leona N. Travis, supra note 10. 

13 See supra note 8. 

14 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

15 See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. 

denied, 41 ECAB 458 (1990). 
5

ANALYSIS 

Appellant seeks reconsideration of a March 15, 1991 merit decision denying modification 

of his claim that he sustained a recurrence of disability on July 3, 1989 as a result of his accepted 

July 14, 1988 employment injury. He continues to disagree with the denial of his claim and filed 

his request for reconsideration in letters dated April 1 and 13, 2016. While appellant has 

requested that the time limitation be waived due to his mental condition, he has not submitted 

any rationalized medical evidence based on objective findings to substantiate that he was 

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

following March 15, 1991.16 While Dr. Jones noted in his June 30, 2014 report that appellant 

became depressed and narcotic dependent following his 1989 surgery, he did not specifically 

address whether appellant was mentally incompetent during the relevant time period. Therefore 

his report fails to prove mental incompetence as alleged. 

Because appellant filed his request more than one year after OWCP’s March 15, 1991 

merit decision, the Board finds that appellant filed an untimely request for reconsideration. 

Thus, appellant must demonstrate clear evidence of error on the part of OWCP in denying his 

claim.17

The Board further finds that appellant’s request for reconsideration fails to demonstrate 

clear evidence of error. To demonstrate 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.18 A detailed, 

well-rationalized medical report which would have required further development if submitted 

prior to issuance of the denial decision, does not constitute clear evidence of error.19 To 

demonstrate clear evidence of error, it is insufficient merely to show that the evidence could be 

construed so as to produce a contrary conclusion. The term clear evidence of error is intended to 

represent a difficult standard.20

In support of his request, appellant submitted to OWCP a new report by Dr. Jones dated 

June 30, 2014. Dr. Jones, in his June 30, 2014 report, opined that appellant sustained permanent 

injury due to the accepted 1988 work injury. Dr. Jones did not specifically address the accepted 

low back strain or how it caused a recurrence of total disability on July 3, 1989. 

Appellant also resubmitted a July 10, 1989 report by Dr. Jones, a March 14, 2012 report 

by Dr. Johnston, and an October 11, 1990 notice of separation by the employing establishment. 

In resubmitting these documents, he 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 a 

 16 I.F., Docket No. 15-625 (issued June 2, 2015). 

17 20 C.F.R. § 10.607(b). See S.D., 58 ECAB 713 (2007); Jack D. Johnson, 57 ECAB 593 (2006).

18 See Robert G. Burns, 57 ECAB 657 (2006); supra note 14. 

19 See G.B., Docket No. 16-319 (issued April 16, 2016); Joseph R. Santos, 57 ECAB 554 (2006). 

20 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (February 2016); 

see Dean D. Beets, 43 ECAB 1153 (1992). 
6

recurrence of disability. It is not apparent how resubmission of this evidence is sufficient to raise 

a substantial question as to the correctness of OWCP’s decision.21

None of the evidence appellant has submitted manifests on its face that OWCP 

committed an error in denying appellant’s recurrence claim. Appellant has not otherwise 

submitted evidence of sufficient probative value to raise a substantial question as to the 

correctness of OWCP’s merit decision. Thus, the evidence is insufficient to demonstrate clear 

evidence of error. 

Appellant again argued that he never healed from his original injury, that OWCP 

mishandled his claim, and that the medical evidence was sufficient to establish his claim. 

Appellant’s April 1 and 13, 2015 requests for reconsideration did not establish that OWCP’s 

March 15, 1991 decision was erroneous in finding that a recurrence of disability had not been 

established. The Board will, therefore, affirm the July 14, 2016 decision denying appellant’s 

request. 

On appeal appellant contends that the evidence submitted demonstrates clear evidence of 

error. As discussed above and in prior Board decisions, appellant has failed to establish any 

error on the part of OWCP in denying his recurrence claim and in finding that he failed to 

demonstrate clear evidence of error. 

CONCLUSION 

OWCP properly refused to reopen appellant’s claim for reconsideration on the merits as 

his request for reconsideration was untimely filed and failed to demonstrate clear evidence of 

error. 

 21 J.J., Docket No. 13-1363 (issued November 6, 2013). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 14, 2016 is affirmed. 

Issued: December 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board