United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.E., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, AIR 

COMBAT COMMAND, RANDOLPH AIR 

FORCE BASE, TX, Employer 

__________________________________________ 

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Docket No. 15-750 

Issued: June 12, 2015 

Appearances: Case Submitted on the Record

Greg Thomas, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 10, 2015 appellant, through counsel, filed a timely appeal from a 

November 25, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Because more than 180 days has elapsed between the last merit decision dated 

September 5, 2013 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 her case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

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

On appeal, counsel argues that appellant has established his claim and clear evidence of 

error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On February 19, 2013 appellant, then a 45-year-old work/life consultant, filed a traumatic 

injury claim alleging that on February 4, 2013 he injured his lower back when he slipped and fell 

on an icy walkway. 

In a February 6, 2013 report, Dr. John M. Harris, a treating physician, related that 

appellant was seen that day for complaints of pain which began two days prior. Appellant stated 

that he had slipped and fallen on ice at work. A physical examination revealed posterior spinal 

and coccyx tenderness with no paravertebral spasm, edema, or abnormality. Review of an x-ray 

interpretation of the sacrum and coccyx showed no fracture. Dr. Harris diagnosed a tailbone 

injury. 

In an April 1, 2013 report, Ronnie L. Reese, a certified physician assistant, reported that 

appellant was seen for back pain and that appellant has a history of chronic low back pain. 

Appellant stated that he has had increased low back pain since February 4, 2013 when he slipped 

on ice, landed on his tailbone, and then fell flat onto his back. He also informed Mr. Reese that 

he continued working following the incident. Complaints included lumbosacral moderate back 

pain which was worsening. Appellant related that his pain radiated to the left leg and that it was 

exacerbated by bending. A physical examination of the low back revealed no palpable spasm, 

decreased range of motion due to pain, and diffuse lumbar spine tenderness. Mr. Reese 

diagnosed low back pain which had been exacerbated by the fall on February 4, 2013. 

In a follow-up visit on May 15, 2013, Mr. Reese diagnosed low back pain. Physical 

examination findings included low back diffuse tenderness which was mostly muscular, 

decreased range of motion due to pain, and some left sciatic tenderness. 

In a July 8, 2014 report, Dr. Wesley L. Smeal, an examining Board-certified physiatrist, 

diagnosed lumbar strain, lumbar radiculitis, and low back pain radiating into the left leg. Under 

history of illness, he related that appellant had intermittent buttock and leg symptoms and back 

pain following a February 4, 2013 slip and fall on ice at work. A physical examination revealed 

some L1-2 discomfort and at the lumbosacral joint going into the buttock. 

By letter dated July 23, 2013, OWCP informed appellant that the evidence of record was 

insufficient to establish his claim. Appellant was advised as to the medical and factual evidence 

required and given 30 days to submit this information. 

In a July 29, 2013 attending physician’s form report (Form CA-20), Dr. Larry L. Brown, 

a treating Board-certified internist, diagnosed acute and chronic low back pain which had been 

aggravated by the February 4, 2013 slip and fall at work. 

By decision dated September 5, 2013, OWCP denied appellant’s claim for traumatic 

injury finding that he had not submitted sufficient medical evidence to establish a causal 

relationship between his diagnosed condition and the February 4, 2013 incident. It also noted 

that the medical evidence failed to establish any aggravation of a preexisting condition and 

explained the evidence required to support an aggravation. 
3

On September 16 and 22, 2014 OWCP received appellant’s September 12, 2014 request 

for reconsideration. In support of the reconsideration request, appellant submitted a 

September 12, 2014 report from Dr. Smeal, who related that he first saw appellant on July 8, 

2013 for a February 4, 2013 slip and fall at work. Dr. Smeal related that prior to the February 4, 

2013 incident appellant stated that he had a history of low back pain. He then related the 

treatment provided to appellant for his significant increase in symptoms following the 

February 4, 2013 incident. In concluding, Dr. Smeal opined that appellant’s preexisting lumbar 

condition had been exacerbated by the slip and fall on February 4, 2014 based on appellant’s 

description of the incident and increased musculoskeletal and discogenic low back pain. 

By decision dated November 25, 2014, OWCP denied appellant’s request for 

reconsideration as it was untimely and failed to establish clear evidence of error on the part of 

OWCP. It stated that the September 12, 2014 request for reconsideration was not received 

within one year from the September 5, 2013 decision and was not received and imaged until 

September 22, 2014 and are therefore, untimely. OWCP further found that the evidence 

submitted with the untimely request for reconsideration did not establish clear evidence of error 

and was not sufficient to require it to reopen appellant’s claim for consideration of the merits. 

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.2

 

The Board has found that the imposition of the one-year time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.3

OWCP, however, may not deny an application for review solely because the application 

was not timely filed. When an application for review is not timely filed, it must nevertheless 

undertake a limited review to determine whether the application establishes clear evidence of 

error.

4

 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

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

the claimant’s application for review shows clear evidence of error on the part of OWCP.5

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

which was decided by OWCP.6

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

 2

 20 C.F.R. § 10.607(a). 

3

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

4 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

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

OWCP procedures further provide 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. Id. at Chapter 2.1602.5(a). 

6 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 
4

manifest on its face that OWCP committed an error.7

 OWCP procedures were changed effective 

August 29, 2011. Section 10.607 of the new regulations provide that the date of the 

reconsideration request for timeliness purposes was changed from the date the request was 

mailed to the date the request was received by OWCP.8

 Evidence which does not raise a 

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

clear evidence of error.9

 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.10 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.11 To show 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.12

ANALYSIS 

The only decision before the Board on this appeal is that of OWCP dated November 25, 

2014 in which it declined to reopen appellant’s case on the merits because the request was not 

timely filed, and did not show clear evidence of error. OWCP denied appellant’s traumatic 

injury claim as there was insufficient medical evidence to establish that his February 4, 2013 

employment incident resulted in an injury as alleged. In its September 5, 2014 decision, it 

specifically noted that there was no medical evidence based on a proper factual background 

which established that his preexisting back condition had been aggravated by the February 4, 

2013 incident. Appellant submitted a request for reconsideration received by OWCP on 

September 16 and 22, 2014. As the received date is more than one year following OWCP’s 

September 5, 2014 merit decision, the Board finds that appellant’s reconsideration request is 

untimely. 

The Board also finds that appellant failed to show clear evidence of error. With his 

request for reconsideration, he submitted additional medical evidence from Dr. Smeal opining 

that his preexi++sting lumbar condition had been exacerbated by the slip and fall on February 4, 

2014 based on his description of the incident and increased musculoskeletal and discogenic low 

back pain. However, this report is insufficient to establish clear evidence of error. To establish 

clear evidence of error, it is not enough 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. The submission of a detailed well-rationalized medical report, which, if 

 7 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

8

 20 C.F.R. § 10.607. 

9 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

10 See supra note 7. 

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

12 Leon D. Faidley, Jr., supra note 3. 
5

submitted before the denial was issued, would have created a conflict in medical opinion 

requiring further development, is not clear evidence of error.13 This evidence is not so positive, 

precise, and explicit that it manifests on its face that OWCP committed an error. Consequently, 

the Board finds that Dr. Smeal’s report submitted on reconsideration is insufficient to raise a 

substantial question as to the correctness of OWCP’s decision. Thus, appellant has not 

established clear evidence of error by OWCP in its November 25, 2014 decision. 

On appeal, counsel argued that OWCP was too stringent in the September 5, 2014 

decision regarding appellant’s burden of proof and whether the February 4, 2013 incident 

aggravated his preexisting back condition. He argued that as appellant was asymptomatic prior 

to the incident that the fact that he became symptomatic following the slip and fall on 

February 4, 2013 supports a finding of aggravation. In addition, counsel argues that Dr. Smeal’s 

September 12, 2014 report establishes the fact that appellant’s preexisting back condition had 

been aggravated by the February 4, 2013 incident. Contrary to appellant’s contention the mere 

fact that he was asymptomatic prior to the February 4, 2013 incident is insufficient, without 

sufficient rationale, to establish a causal relationship between his preexisting back condition and 

aggravation.14 Furthermore, as explained above, Dr. Smeal’s report is insufficient to establish 

clear evidence of error. 

The Board finds that in its November 25, 2014 decision, OWCP properly declined to 

reopen appellant’s claim on the basis that his request for reconsideration was not timely filed 

within the one-year time limitation period set forth in 20 C.F.R. § 10.607 and did not show clear 

evidence of error was proper and did not constitute an abuse of discretion. 

CONCLUSION 

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

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

 13 D.G., 59 ECAB 455 (2008); Joseph R. Santos, 57 ECAB 554 (2006); see Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011). 

14 Michael S. Mina, 57 ECAB 379 (2006). 
6

ORDER 

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

Compensation Programs dated November 25, 2014 is affirmed. 

Issued: June 12, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board