United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.E., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY HOSPITAL, Tampa, FL, 

Employer 

__________________________________________ 

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Docket No. 16-0574 

Issued: August 18, 2016 

Appearances: Case Submitted on the Record

Capp A. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 1, 2016 appellant, through counsel, filed a timely appeal of September 2 and 

November 10, 2015 nonmerit decisions of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days has elapsed from the last merit decision, dated April 30, 2013, 

and 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 to review the merits of the claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

The issues are: (1) whether OWCP properly denied appellant’s August 10, 2015 request 

for reconsideration as it was untimely filed and failed to demonstrate clear evidence of error; and 

(2) whether OWCP properly denied appellant’s October 13, 2015 reconsideration request under 

5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

This case has previously been before the Board on appeal. On September 26, 2012 

appellant, then a 43-year-old mail clerk filed a traumatic injury claim (Form CA-1) alleging that 

on September 7, 2012 his mailroom supervisor kicked him unexpectedly in the back of his right 

leg which caused a low back injury. On the reverse of the form, appellant’s supervisor, S.H., 

stated that the investigation did not reveal witnesses to confirm that the incident actually 

happened. In a letter dated October 4, 2012, OWCP requested additional factual and medical 

evidence supporting that the event occurred as alleged and that a medical condition resulted from 

the alleged employment event. 

A report of September 14, 2012, provided by the employing establishment, noted that 

appellant attempted to file assault and battery charges against mailroom supervisor, F.C., on 

September 13, 2012 as the result of alleged actions on September 7, 2012. Appellant reported to 

the police that F.C. “mule kicked” him on Friday, September 7, 2012 at 1:50 p.m. and that he 

sought treatment at the emergency room after his workday. F.C. denied any incident that would 

result in injury to appellant. He noted that appellant also alleged that he had struck him with a 

rolled stack of paper on September 12, 2012 while training him on a piece of equipment. F.C. 

also denied the paper incident. He stated that the allegations had no validity and that if the 

events occurred at all there was no intentional or violent harm, but rather playful intent. Five 

possible witnesses were interviewed and denied witnessing either of the situations alleged by 

appellant. Appellant stated on September 7, 2012 that F.C. kicked him twice to the knee area 

making him awkwardly catch himself from falling and resulting in pain in his low back. He 

stated that he believed that F.C. was “goofing around” and did not intend to cause him harm. 

S.H. verbally counseled F.C. to refrain from any physical contact with any employee. 

Appellant submitted a statement and alleged that there were witnesses to the kicking 

incident, but that his coworkers refused to come forward. In a separate, undated statement he 

reported that F.C. kicked him twice on September 7, 2012 landing the second kick to the back of 

his right knee or thigh. Appellant had to catch himself to prevent a fall and felt pain in his lower 

back and thigh. He sought medical treatment. On September 12, 2012 F.C. struck appellant 

with a rolled stack of papers three or four times in front of a trainer. Appellant stated that F.C. 

was acting playfully and not fighting him, but that he felt that, like sarcasm, these events were 

underhanded acts of violent intent. On September 27, 2012 appellant repeated his earlier 

allegations and noted that a repairman was present when F.C. kicked him, but denied witnessing 

the event. 

Appellant submitted a statement from O.W., a coworker, noting that F.C. was initially 

employed as a work-study student and that he liked to touch people in unexpected ways, such as 

a pat on the back or shoulder. O.W. reported that F.C. had punched him in the side of his 
3

stomach and patted him on the back. He noted that F.C. meant no harm, but that these actions 

aggravated a back injury. O.W. stated that when F.C. returned as a supervisor he kicked a mail 

clerk as a joke. 

In a nurse’s note dated September 7, 2012, appellant reported right leg pain following a 

kick. He stated that his supervisor kicked him while playing and joking around. Appellant again 

sought medical treatment on September 8, 2012. Dr. Samy F. Bishai, an orthopedic surgeon, 

completed a form report on September 25, 2012 and diagnosed lumbosacral strain. He examined 

appellant on October 5, 2012 and noted an increase in pain. Dr. Bishai found that appellant was 

totally disabled pending further testing. He completed a duty status report on October 24, 2012 

and diagnosed lumbosacral strain with muscle spasm and reduced range of motion. 

F.C. completed a statement on October 25, 2012 and denied doing anything to harm 

anyone on September 7, 2012. He stated that he treated all employees with dignity and respect. 

Appellant submitted an additional statement on October 29, 2012 reviewing the 

submitted evidence and describing his symptoms. He noted that he had a previous servicerelated injury to his lower back, knees, and legs. 

By decision dated November 8, 2012, OWCP denied appellant’s claim as he did not 

submit the necessary factual evidence to establish that his employment incident occurred as 

alleged. It noted that there were inconsistencies in the factual record which cast doubt upon 

whether the employment incident occurred as alleged. Appellant requested an oral hearing 

before an OWCP hearing representative on November 13, 2012. 

In a September 25, 2012 narrative report, Dr. Bishai noted that appellant stated that his 

supervisor had kicked him in the back of the leg causing a back injury. He diagnosed 

dorsolumbar strain, herniated lumbar disc, and bilateral radiculopathy in the legs. Dr. Bishai 

diagnosed herniated lumbar disc with radiculopathy on October 24, 2012. He completed a 

narrative report on December 4, 2012 and repeated his diagnoses and opined that appellant was 

totally disabled. Dr. Bishai noted that appellant was experiencing an aggravation of his 

preexisting back condition which initially developed in the military. He concluded, “[I]t is my 

opinion that [appellant’s] injuries of September 7, 2012 when he was kicked in the leg and back 

caused an injury and aggravation of a preexisting condition of his back and it is a permanent 

aggravation of this condition.” 

Appellant testified at the oral hearing on February 14, 2013. He stated that he was 

talking with F.C. and saw him kick behind him and then strike him with the second kick. 

Appellant lost his balance and landed in a chair to keep from falling. He noted that he had 

problems with balance due to his service-related disability. Appellant stated that he caught 

himself with his arms leaning into the chair. The incident resulted in back and leg pain. He 

stopped work and did not return. 

During the oral hearing, counsel read a statement from a coworker who reported seeing 

appellant falling backwards. She stated that appellant tried to grab a chair and table to break his 

fall. The coworker stated that she did not see F.C. kick appellant, but that he gave her a ride 
4

home and stated that he and appellant played like that. She admonished him not to put his feet 

on people even playing. 

Following the oral hearing appellant submitted additional reports from Dr. Bishai dated 

February 27 and March 6, 2013. Dr. Bishai noted appellant’s complaints of neck pain and pain 

in his lower back. He continued to support appellant’s disability for work. 

S.H. reviewed the hearing transcript on March 18, 2013 and stated that he interviewed the 

coworker during that initial investigation and she did not state that she had witnessed anything 

related to appellant’s traumatic event. He disputed her allegation that she had reported 

appellant’s stumble to him. 

By decision dated April 30, 2013, the hearing representative found that the case record 

did not contain any witness statements supporting appellant’s version of events. She noted that 

the claim form was filed two weeks after the alleged incident and that she did not find his 

testimony to be credible. The hearing representative stated that F.C. denied that the incident 

occurred and that the medical records failed to provide a reasoned opinion supporting that the 

diagnosed conditions were causally related to appellant’s alleged work incident. She found that, 

due to the late reporting and lack of contemporaneous medical evidence, the incident did not 

occur as alleged. 

Appellant submitted additional reports from Dr. Bishai dated April 11 and May 16, 2013. 

These reports repeated the findings and conclusions in the February 27 and March 6, 2013 

reports. Appellant also resubmitted the September 25 and October 24, 2012 as well as the 

March 6, 2013 reports from Dr. Bishai. He submitted a series of reports dated July 1, August 13, 

and October 3 and 29, 2013 as well as December 11, 2013, January 4, 2014 from Dr. Claude 

Barosy, a family practitioner. These medical reports provided a September 7, 2012 date of 

injury, findings, and diagnoses of lumbar sprain, lumbar disc syndrome, and bilateral 

radiculopathy. Dr. Barosy found herniated discs at L3-4 and L5-S1. He recommended physical 

therapy. 

Appellant requested reconsideration on February 7, 2014 and stated that he was 

submitting new medical evidence from Dr. Bishai. He also asked that OWCP review O.W.’s 

statement, the statement dated February 7, 2013 from the other coworker and a March 29, 2013 

statement from the union president. Counsel argued that the coworker saw appellant fall, 

although she did not see the actual horseplay that appellant alleged led to the fall, and that her 

statement was therefore significant. On March 29, 2013 D.P., a union president, discussed 

appellant’s claim with another employee who stated that F.C. had kicked appellant and that O.W. 

witnessed this event. 

In a January 9, 2014 report, Dr. Bishai noted that appellant had preexisting back 

problems due to military service, but this did not include radicular symptoms. He reported 

appellant’s statements that on September 7, 2012 he was kicked in the leg by a coworker during 

horseplay, which caused him to lose his balance and break his fall by catching himself on a chair. 

Appellant reported that he immediately felt pain in his low back. Dr. Bishai stated, “[I]t is my 

opinion that [appellant] suffered lumbar disc herniation with bilateral lower extremity 

radiculopathy as a result of the incident at work on September 7, 2012.” 
5

In a decision dated February 21, 2014, OWCP declined to reopen appellant’s claim for 

consideration of the merits. It found that he had failed to submit relevant or pertinent new 

evidence or argument in support of his request for reconsideration. Counsel appealed this 

decision to the Board. In a decision dated October 9, 2014,3

 the Board found that OWCP 

properly declined to reopen appellant’s claim for review of the merits on February 21, 2014. 

Following OWCP’s February 21, 2014 decision, appellant submitted additional medical 

evidence. In a note dated February 25, 2014, Dr. Eduardo L. Gonzalez, a Board-certified family 

practitioner, diagnosed dorsolumbar strain, herniated disc at L3-4 and L5-S1, as well as bilateral 

lower extremity radiculopathy. He treated appellant on March 25, 2014 for upper extremity 

radiculopathy, cervicalgia, dorsolumbar strain, and as well as the previously diagnosed lumbar 

conditions. On June 4, 2014 Dr. Gonzalez repeated his diagnoses and opined that appellant was 

totally disabled. He performed an epidural injection on August 26, 2014. 

Dr. Rosana Rodriquez, a podiatrist, examined appellant on April 11, 2014 and noted his 

history of a kick by his supervisor on September 7, 2012. She diagnosed abnormal gait, 

Morton’s neuroma, and posterior tibial dysfunction bilaterally, as well as severe pes planus. 

Dr. Robert R. Reppy, an osteopath, examined appellant on October 23, 2014 and 

diagnosed bulging disc at L3-4, and L4-5, lumbar stenosis and wedge compression of the C5 

vertebra. 

Counsel requested reconsideration of OWCP’s prior decisions through a letter dated 

August 4, 2015 and received by OWCP on August 10, 2015. He argued that he was submitting 

the coworker’s statement that she saw appellant fall and that this statement established fact of 

injury as the employment incident actually occurred. Counsel further argued that Dr. Bishai’s 

January 9, 2014 report was sufficient to establish that appellant sustained a medical condition as 

a result of this fall. 

By decision dated September 2, 2015, OWCP declined to reopen appellant’s claim for 

consideration of the merits finding that his request for reconsideration was untimely filed and 

failed to demonstrate clear evidence of error. It reviewed the new evidence and noted that the 

record did not contain a written statement from the coworker as alleged by counsel. 

Counsel again requested reconsideration through a letter dated October 9, 2015 and 

received by OWCP on October 13, 2015. He again alleged that he was submitting a statement 

from appellant’s coworker dated February 7, 2013, which had not been considered by OWCP 

and which required merit review of appellant’s claim. In a handwritten narrative dated 

February 7, 2013, the coworker indicated that she witnessed appellant falling backward on 

September 7, 2012. She related that he stated, “ouch,” and tried to grab a chair which moved and 

then tried to grab the table and almost missed the chair completely. 

By decision dated November 10, 2015, OWCP declined to reopen appellant’s claim for 

consideration of the merits of his claim. It found that he had not submitted sufficient new 

evidence or argument to require merit review of his claim. 

 3

 Docket No 14-1047 (issued October 9, 2014). 
6

LEGAL PRECEDENT -- ISSUE 1 

Section 8128(a) of FECA4 does not entitled a claimant to a review of an OWCP decision 

as a matter of right.5

 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.6

 OWCP, through regulations has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP will 

not review a decision denying or terminating a benefit unless the application for review is timely. 

In order to be timely, a request for reconsideration must be received by OWCP within one year 

of the date of OWCP‘s merit decision for which review is sought. Timeliness is determined by 

the document receipt date of the reconsideration request (the “received date” in the Integrated 

Federal Employee’s Compensation System (iFECS)).7 The Board has found that the imposition 

of this one-year time limitation does not constitute an abuse of the discretionary authority 

granted OWCP under 5 U.S.C. § 8128(a).8

In those cases where requests for reconsideration are untimely filed, the Board has held 

that OWCP must nevertheless undertake a limited review of the case to determine whether there 

is clear evidence of error pursuant to the untimely request.9 OWCP’s procedures state that 

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing 

limitation set forth in OWCP’s regulations, if the claimant’s request for reconsideration 

demonstrates “clear evidence of error” on the part of OWCP.10

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

issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and 

must be manifest on its face that OWCP committed an error.12 Evidence which does not raise a 

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

clear evidence of error.13 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.14 This entails a limited review by OWCP of how the 

 4

 5 U.S.C. § 8128(a). 

5 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

6 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

7

 20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(October 2011). G.F., Docket No. 15-1053 (issued September 11, 2015). 

8

 Supra note 5 at 769; Jesus D. Sanchez, supra note 6 at 967. 

9

 Supra note 5 at 770. 

10 See Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5 (October 2011). 

11 Supra note 5. 

12 Leona N. Travis, 43 ECAB 227, 241 (1991). 

13 Jesus D. Sanchez, supra note 6 at 968. 

14 Supra note 12. 
7

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.15 

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 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.16 

The Board must make an independent determination of whether a claimant has submitted 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.17

ANALYSIS -- ISSUE 1 

Counsel requested reconsideration of the April 30, 2013 merit decision through a letter 

dated August 4, 2015 and received by OWCP on August 10, 2015. As this request was received 

by OWCP more than one year after the most recent merit decision, the request for 

reconsideration was untimely filed. 

OWCP proceeded to evaluate in the new evidence in appellant’s case record under the 

clear evidence of error standard and found that he had not met this standard. In support of his 

request for reconsideration, appellant submitted additional medical evidence from Drs. Gonzalez, 

Reppy, and Rodriquez. These physicians did not address the central issue in this claim, whether 

his employment incident occurred as alleged. As these reports are irrelevant, the Board finds 

that they are insufficient to demonstrate clear evidence of error on the part of OWCP. 

LEGAL PRECEDENT -- ISSUE 2 

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.18

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

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that 

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.19

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. The one-year period begins on 

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

16 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 

17 Nancy Marcano, 50 ECAB 110 (1998). 

18 5 U.S.C. § 8128(a). 

19 20 C.F.R. § 10.607(a). 
8

the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following a reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board, but does not 

include prerecoupment hearing decisions.20 Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the Integrated Federal Employees 

Compensation System (iFECS)). If the request for reconsideration has a document received date 

greater than one year, the request must be considered untimely.21

OWCP will consider an untimely application 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.22

The term clear evidence of error is intended to represent a difficult standard. If clear 

evidence of error has not been present, OWCP should deny the application by letter decision, 

which includes a brief evaluation of the evidence submitted and a finding made that clear 

evidence of error has not been shown.23

ANALYSIS -- ISSUE 2 

The most recent adverse decision reviewing the merits of appellant’s case was OWCP’s 

April 30, 2013 decision. As the appeal rights attached to that decision explained, appellant had 

one calendar year from the date of that decision, April 30, 2014, to ensure receipt by OWCP of 

any reconsideration request. 

OWCP received appellant’s request for reconsideration on October 13, 2015. As the 

received date was more than one year beyond April 30, 2013, his request must be considered 

untimely. The proper standard of review for an untimely reconsideration request is the clear 

evidence of error standard. 

In denying appellant’s reconsideration request, OWCP did not determine whether his 

reconsideration request was untimely filed and did not review the request under the clear 

evidence of error standard. Rather, it applied the standard of review for timely requests for 

reconsideration. As OWCP applied the wrong standard of review to the untimely request for 

reconsideration, the Board will set aside OWCP’s November 10, 2015 decision and remand the 

case for proper review under the clear evidence of error standard as required by regulations.24

 20 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.4b (October 2011). 

21 Id. 

22 20 C.F.R. § 10.607. 

23 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5a (October 2011). 

24 See 20 C.F.R. § 10.607(b). See W.L., Docket No. 15-1842 (issued January 14, 2016); L.D., Docket No. 15-

0865 (issued October 6, 2015). 
9

CONCLUSION 

The Board finds that OWCP properly denied appellant’s August 10, 2015 request for 

reconsideration on the basis that it was not timely filed and did not establish clear evidence of 

error. The Board further finds that OWCP improperly denied his October 13, 2015 

reconsideration request under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the September 2, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. It is further ordered that the November 10, 2015 

decision of the Office of Workers’ Compensation Programs be set aside and the case is 

remanded for further review under the clear evidence of error standard. 

Issued: August 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board