United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.V., Appellant 

and 

U.S. POSTAL SERVICE, INSPECTION 

SERVICE, Washington, DC, Employer 

__________________________________________ 

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Docket No. 16-0915 

Issued: August 2, 2016 

Appearances: Case Submitted on the Record

John C. Lewis, III, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 31, 2016 appellant, through counsel, filed a timely appeal from an October 7, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed between August 21, 2014, the date of the most recent merit decision, 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 over the merits of appellant’s claim.3

 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. 

3

 The Board notes that appellant submitted additional evidence after OWCP rendered its October 7, 2015 decision. 

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim because his request was untimely filed and failed to 

demonstrate clear evidence of error. 

FACTUAL HISTORY 

On August 29, 2013 appellant, then a 42-year-old inspector, filed a traumatic injury claim 

(Form CA-1) alleging that he injured his right shoulder on August 19, 2013 due to a fall while 

running as a part of the employing establishment’s approved physical training program. The 

employing establishment challenged the claim noting that the claimed injury did not occur in the 

performance of duty because appellant was not on duty or participating in an approved physical 

training program at the time of the August 19, 2013 incident. An employing establishment 

official indicated that appellant initially reported that the injury was not work related and did not 

report the injury as work related until 10 days after the fact. 

In a statement dated August 30, 2013, a supervisor indicated that appellant called him on 

August 19, 2013 and let him know that he was at a park with his son when he fell on his right 

shoulder and that he would be out of work for a few days. He noted that appellant advised him 

on August 20, 2013 that he would be out of work for a few weeks on sick leave. The supervisor 

asserted that appellant did not mention in either conversation that he was injured in the 

performance of duty. In a statement dated September 4, 2013, another supervisor indicated that 

on August 20, 2013 appellant responded “no” when asked if his August 19, 2013 injury was an 

“on-the-job injury.” 

By decision dated October 17, 2013, OWCP denied appellant’s claim because he did not 

establish that he sustained an injury in the performance of duty on August 19, 2013. It indicated, 

“Your agency has provided a statement claiming you were not in [the] performance of duty at the 

time of your injury and you have not provided any other evidence that the off-duty physical 

activities you were engaged in at the time of your injury were being performed under the 

auspices of any agency[-]sponsored fitness program.” 

Appellant requested a telephone hearing with an OWCP hearing representative. During 

the hearing held on May 14, 2014, he testified that before he left work on August 19, 2013 he 

entered on the employing establishment’s electronic eDiary that he would be working out by 

running that day. Appellant explained that his son’s team was training for cross country and 

holding informal workouts in the park and that he planned on running there with his son. He 

indicated that while wrapping up his run he fell and landed on his right shoulder. Appellant 

testified that he was allowed up to three hours per week to exercise under the employing 

establishment’s physical fitness program and that these were paid hours. He asserted that he did 

call his supervisor and report he was injured while running, but the supervisor did not ask him if 

the injury was work related. 

After the hearing, appellant submitted a copy of the eDiary for August 19, 2013, the 

initial hospital treatment record dated August 19, 2013, administrative documents relating to the 

physical fitness program, and other medical evidence. In the August 19, 2013 report from the 
3

Johnson Memorial Medical Center, an emergency room nurse noted, “[Patient] was running 

relays and fell landing on [right] shoulder.” The eDiary entry for August 19, 2013 indicated that 

appellant would be participating in physical fitness activity that day. 

The employing establishment continued to challenge appellant’s claim and provided a 

June 13, 2014 statement from a supervisor reiterating that she asked appellant if his injury was 

an “on-the-job injury” and he stated “no.” The supervisor further advised appellant did not tell 

her that it occurred while he was running. In a June 16, 2014 statement, another employee noted 

that appellant initially told him he fell while at the park with his son and that he did not report he 

was running or participating in the employing establishment’s physical fitness program. 

In a decision dated August 21, 2014, the OWCP hearing representative affirmed OWCP’s 

October 17, 2013 decision. She noted that the evidence in the case record supported that 

appellant was enrolled in the employing establishment’s physical fitness program, but that the 

evidence did not clearly show that he was participating in this approved physical fitness program 

at the time of his claimed August 19, 2013 injury. 

In a letter dated August 19, 2015 and received on August 24, 2015, counsel requested 

reconsideration of OWCP’s August 21, 2014 decision. He argued that appellant sustained an 

injury in the performance of duty on August 19, 2013 because his right shoulder injury occurred 

while he was participating in a physical fitness program approved by the employing 

establishment. Counsel noted that appellant had testified that he was participating in the 

employing establishment’s approved physical fitness program when he was running with his 

son’s middle school cross country team at the time of the August 19, 2013 injury. He indicated 

that this was supported by the initial August 19, 2013 report from the Johnson Memorial Medical 

Center which noted, “Patient was running relays and fell landing on right shoulder.” Counsel 

asserted that an eDiary entry for August 19, 2013 indicated that appellant would be participating 

in the activity type of physical fitness, and that the physical-fitness type that was checked off was 

jogging. 

Appellant submitted copies of the initial August 19, 2013 report from the Johnson 

Memorial Medical Center and of the eDiary entry for August 19, 2013 which was already of 

record. Appellant also submitted an undated statement in which his son indicated that on 

August 19, 2013 both he and appellant participated in a run attended by adults and their middle 

school aged children. Appellant’s son noted that, as the run was wrapping up, he observed 

appellant trip, fall and injure his shoulder. 

In an October 7, 2015 decision, OWCP denied appellant’s request for further review of 

the merits of his claim because his request was untimely filed and failed to demonstrate clear 

evidence of error. It noted that appellant’s request for reconsideration of its August 21, 2014 

decision was untimely as it was not received until August 24, 2015, i.e., more than one year after 

the issuance of the August 21, 2014 decision. OWCP determined that the argument and 

evidence submitted by appellant did not show clear evidence of error in its August 21, 2014 

decision which found that he had not established an injury in the performance of duty on 

August 19, 2013. 
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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 end, decrease or increase the 

compensation awarded; or 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 

demonstrate clear evidence of error.8 It is not enough merely to establish 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 

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

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative and substantial 

evidence including that he or she sustained an injury in the performance of duty.12 With regard 

 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). 

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 M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447, 450 (2008). 
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to recreational activities, the Board has held that such activities arise in the course of 

employment when: (1) they occur on the premises during a lunch or recreational period as a 

regular incident of the employment; or (2) the employer, by expressly or impliedly requiring 

participation, or by making the activity part of the service of the employee, brings the activity 

within the orbit of employment; or (3) the employer derives substantial direct benefit from the 

activity beyond the intangible value of improvement in employee health and morale that is 

common to all kinds of recreation and social life.13 OWCP’s procedures address “Employing 

Agency Physical Fitness Programs” and provides that “employees enrolled in a physical fitness 

program are in the performance of duty for FECA purposes while doing authorized physical 

fitness program exercise, including off-duty exercises.”14 

ANALYSIS 

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

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.15 As appellant’s request for 

reconsideration was not received by OWCP until August 24, 2015, more than one year after 

issuance of its August 21, 2014 merit decision, it was untimely filed. Consequently, he must 

demonstrate clear evidence of error by OWCP in its August 21, 2014 decision. 

Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing 

its August 21, 2014 decision. In the untimely reconsideration request, counsel argued that 

appellant sustained an injury in the performance of duty on August 19, 2013 because his right 

shoulder injury occurred while he was participating in a physical fitness program approved by 

the employing establishment. He indicated that this was supported by the initial August 19, 2013 

report from the Johnson Memorial Medical Center in which it was noted, “Patient was running 

relays and fell landing on right shoulder.” Counsel asserted that an eDiary entry for August 19, 

2013 indicated that appellant would be participating in the activity type of physical fitness, and 

that the physical fitness-type was jogging.16 The Board notes that OWCP has already considered 

the same evidence and argument and concluded that they did not establish that appellant 

sustained an injury in the performance of duty on August 19, 2013. In denying appellant’s 

claim, OWCP had noted various inconsistencies in reporting the claimed August 19, 2013 injury 

and found that the evidence did not show that appellant was participating in an approved 

physical fitness program at the time of the injury on August 19, 2013. The evidence and 

argument submitted by appellant on reconsideration does not address such inconsistencies or 

 13 See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993). 

14 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994). 

15 See supra note 4. On appeal, counsel argued that appellant actually filed a timely reconsideration request. 

However, he did not explain how the evidence of record supported this argument. 

16 Appellant submitted copies of these documents which were already of record. 
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otherwise manifest on its face that OWCP committed error when finding that he was not in the 

performance of duty on August 19, 2013.17 

The Board notes that clear evidence of error is intended to represent a difficult standard 

and the evidence and argument submitted by appellant, most of which had been previously 

considered, does not reach this standard.18 For these reasons, the evidence submitted by 

appellant does not raise a substantial question concerning the correctness of OWCP’s August 21, 

2014 decision and OWCP properly determined that appellant did not show clear evidence of 

error in that decision. 

CONCLUSION 

 The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim because his request was untimely filed and failed to 

demonstrate clear evidence of error. 

 17 See supra note 5. Appellant also submitted an undated statement in which his son indicated that on August 19, 

2013 both he and appellant participated in a run attended by adults and their middle school aged children. However, 

it has not been disputed that appellant engaged in physical activity on August 19, 2013. Rather, OWCP found that 

appellant has not established participation in an approved physical fitness program on that date. 

18 See supra notes 6 through 8. 
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ORDER 

 IT IS HEREBY ORDERED THAT the October 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 2, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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