United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.A., Appellant 

and 

DEPARTMENT OF TREASURY, INTERNAL 

REVENUE SERVICE, Fresco, CA, Employer 

__________________________________________ 

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Docket No. 15-1293 

Issued: November 2, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 21, 2015 appellant, through counsel, filed a timely appeal from a November 24, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because 

more than 180 days elapsed between the last relevant OWCP merit decision dated June 12, 2013 

to the filing of this appeal, the Board lacks jurisdiction to review the merits of this case. 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to review this nonmerit decision. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 6, 2012 appellant, then a 51-year-old customer service representative

(CSR), filed a traumatic injury claim (Form CA-1) alleging that on November 16, 2012 she 

attempted to sit down on her chair, stepped on the chair wheel and slipped, hitting her left 

hand/wrist on the edge of the desk. She alleged that her left hand/wrist was fractured. The 

employing establishment contended that appellant informed a supervisor on November 20, 2012 

of a scheduled doctor’s appointment on November 26, 2012, but did not mention a 

November 16, 2012 injury. Appropriate development followed. 

By decision dated January 29, 2013, OWCP denied the claim finding that fact of injury 

was not established. It explained that the factual component was not satisfied. 

On March 14, 2013 OWCP received appellant’s request for reconsideration along with 

medical evidence. It received a number of medical reports from Dr. Robert M. Mochizuki, a 

Board-certified orthopedic surgeon, dated November 26, 2012. In the November 26, 2012 

report, Dr. Mochizuki related that appellant had been involved in a motor vehicle accident on 

July 3, 2012, at that time her left wrist was caught in a door handle and she developed 

ecchymosis and swelling around the dorsum of the left wrist and thumb, with complaints of 

persistent pain and aching of the thumb and dorsum of her wrist as well as diminished sensation 

of the tips of the digits. In an amendment to this report, he related that she had called and stated 

that she had forgotten that she had injured her left wrist at work on November 16, 2012 when she 

fell and hit her left wrist on a desk. After reviewing x-rays of appellant’s left wrist 

Dr. Mochizuki diagnosed possible intra-articular fracture of the left distal radius, possible 

intra-articular tear of the scapholunate ligament, possible carpel tunnel syndrome of the left 

upper extremity, and possible de Quervain’s tenosynovitis. In an attending physician’s report 

dated January 14, 2013, he indicated by check mark that appellant had injured her left wrist at 

work on November 16, 2013. 

By decision dated June 12, 2013, OWCP affirmed the denial of the claim. It modified the 

prior decision to reflect fact of injury was established, but denied the claim on the basis causal 

relationship was not established. OWCP noted the evidence established that appellant had 

injured her left wrist in a July 3, 2012 motor vehicle accident and it was unknown if the current 

left wrist condition was due to the motor vehicle accident or whether it was related to the 

November 16, 2012 employment incident. 

On July 15, 2013 OWCP received appellant’s July 11, 2013 request for reconsideration. 

Appellant resubmitted Dr. Mochizuki’s January 14, 2013 form report. By decision dated 

October 3, 2013, OWCP denied the request for reconsideration as the evidence was insufficient 

to warrant a merit review. 

On August 26, 2014 OWCP received appellant’s August 1, 2013 request for 

reconsideration. In an undated letter, also received August 26, 2014, appellant advised that she 

was submitting additional medical evidence which supported her claim. 

OWCP received a duplicate copy of a January 14, 2013 attending physician’s report 

(Form CA-20) from appellant’s physician, which was reviewed in the previous decision, and a 
3

Form CA-2 (occupational disease claim) dated July 15, 2013. In the July 15, 2013 claim form, 

appellant explained that she had a preexisting right hand injury due to a March 25, 2010 injury. 

She also alleged that she continued working and injured her left wrist at work on 

November 16, 2012. Appellant’s supervisor noted on this claim form that appellant had stopped 

work on January 25, 2013. 

In an August 1, 2013 report, Dr. Kathleen Baron, a Board-certified family practitioner, 

noted that appellant had indicated that on November 16, 2012 she fractured her left wrist after 

she slipped at work. She indicated that she was not the primary treating physician for that claim. 

Dr. Baron indicated that appellant originally injured her right hand March 25, 2010, which was 

an accepted claim for which she was the primary treating physician. She presented findings on 

examination and diagnosed right wrist strain and right shoulder strain, for which she opined that 

appellant, was totally disabled. 

By decision dated November 24, 2014, OWCP denied her reconsideration request 

because it was untimely filed and did not 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.2 

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

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

application for review shows clear evidence of error on the part of OWCP.3 In this regard, 

OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior 

evidence of record.4 

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.5

 

 2

 20 C.F.R. § 10.607(a). 

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

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

5 Robert G. Burns, 57 ECAB 657 (2006). 
4

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.6

 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.7

 

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 

June 12, 2013. Appellant’s request for reconsideration was received on August 26, 2014, more 

than one year after the June 12, 2013 merit decision. Therefore, it was untimely filed. 

Consequently, appellant must establish clear evidence of error by OWCP in denying her request 

for a merit review of her claim. 

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

June 12, 2013 decision. OWCP denied appellant’s claim because she had not established causal 

relationship between her left wrist condition and the November 16, 2012 employment incident. 

Appellant requested reconsideration on the belief that the medical evidence established such 

causal relationship. The issue of causal relationship is a medical issue, one that must be 

addressed by rationalized medical opinion evidence.8

 Appellant’s belief is irrelevant. 

With respect to the medial evidence submitted with the application for reconsideration, 

appellant has not established clear evidence of error by OWCP. The copy of the January 14, 

2013 attending physician’s report (Form CA-20) was reviewed in the previous decision and 

found insufficient to establish causal relationship. The Form CA-2 dated July 16, 2013 along 

with Dr. Baron’s August 1, 2013 report pertain to a different injury or claim are insufficient on 

its face to establish clear evidence of error in the denial of her alleged November 16, 2012 left 

wrist injury. 

The evidence and arguments submitted on reconsideration do not raise a substantial 

question as to the correctness of OWCP’s decision in its denial of appellant’s claim. 

Consequently, OWCP properly found that the untimely reconsideration request did not establish 

clear evidence of error. 

On appeal, counsel argues that OWCP’s decision is contrary to fact and law. However, 

for the reasons set forth above, appellant did not meet her burden of proof to establish that her 

untimely reconsideration request presented clear evidence of error in OWCP’s June 12, 2013 

merit decision. The Board affirms OWCP’s November 24, 2014 decision. 

 6

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

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

7 Nancy Marcano, 50 ECAB 110 (1998). 

8 Mary J. Briggs, 37 ECAB 578 (1986). 
5

CONCLUSION 

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

untimely filed and lacking clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the November 24, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board