United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.H., Appellant 

and 

DEPARTMENT OF STATE, NEAR EASTERN 

AFFAIRS, Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-0978 

Issued: October 22, 2015 

Appearances: Case Submitted on the Record

Matthew T. Singer, 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 March 31, 2015 appellant, through counsel, filed a timely appeal from the 

December 10, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1

 The last merit decision in this case was issued by OWCP on November 15, 2013. As 

more than 180 days have elapsed between the last merit decision by OWCP 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 has jurisdiction to review the merits of this case. 

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

 Appellant also filed a timely request for oral argument in this case. By order dated August 14, 2015, the Board 

denied appellant’s request for oral argument because the matter on appeal pertains to an analysis of the factual 

evidence of record. It would further delay issuance of a Board decision and not serve a useful purpose. Docket No. 

15-0978 (issued August 14, 2015). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 17, 2012 appellant, then a 30-year-old Foreign Service Security Protective 

Specialist, filed a traumatic injury claim (Form CA-1) alleging injury to his right knee while 

playing rugby outside the compound where he worked, the United States Embassy in Baghdad, 

Iraq. He stopped work on October 17, 2012 and did not return. OWCP accepted the claim for 

medial meniscus tear of the right knee and paid compensation benefits, including right knee 

surgery on April 25, 2013. On August 10, 2013 appellant’s limited noncareer appointment as a 

Foreign Service Security Protective Specialist expired. He received medical benefits and wageloss compensation payments from OWCP as a result of his disability from work. 

In a September 25, 2013 report, Dr. Stephen Benz, a Board-certified orthopedic surgeon, 

released appellant to full duty and indicated that he could perform activities as tolerated without 

any restrictions. Appellant returned to nonfederal work as a teacher and reinjured his knee on 

October 6, 2013. 

On October 10, 2013 OWCP issued a notice of proposed termination of appellant’s wageloss compensation based on Dr. Benz’s September 25, 2013 report. By decision dated 

November 15, 2013, it finalized the termination of appellant’s wage-loss compensation effective 

November 15, 2013. 

On December 2, 2013 OWCP received appellant’s request for reconsideration of the 

November 15, 2013 termination decision and submitted additional evidence. By decision dated 

February 28, 2014, it denied his request for reconsideration, as the evidence submitted was 

insufficient to warrant review of the November 15, 2013 merit decision. 

On November 21, 2014 OWCP received appellant’s November 14, 2014 request for 

reconsideration. Appellant’s counsel requested that wage-loss compensation be reinstated as 

appellant had not returned to his previous position because he could not perform the strenuous 

requirements of that position due to pain and the teaching position in which he currently works 

pays significantly less than his previous active employment. He also indicated that appellant 

continues to have pain and requires medical treatment. 

By decision dated December 10, 2014, OWCP denied appellant’s reconsideration request 

finding it was untimely filed and failed to 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.3

 

The one-year period begins on 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 

 3

 20 C.F.R. § 10.607(a) (2011). 
3

following reconsideration, any merit decision by the Board and any merit decision following 

action by the Board, but does not include prerecoupment hearing decisions.4 

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

notwithstanding the one-year filing limitation set forth under section 10.607 of its regulations, if 

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

 In 

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

the prior evidence of record.6

 

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.7 

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.8 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.9 

ANALYSIS 

OWCP issued its most recent merit decision on November 15, 2013 which terminated 

appellant’s wage-loss compensation benefits. Appellant’s request for reconsideration dated 

November 14, 2014 was received on November 21, 2014, more than one year after the 

November 15, 2013 merit decision, and was therefore untimely filed. 

 4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (October 2011). 

5

 20 C.F.R. § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000). 

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

7 Robert G. Burns, 57 ECAB 657 (2006). 

8 Supra note 4 at Chapter 2.1602.5(a) (October 2011); James R. Mirra, 56 ECAB 738 (2005). 

9 Nancy Marcano, 50 ECAB 110 (1998). 
4

Appellant’s counsel alleges on appeal that the request for reconsideration was sent in a 

timely manner, or in the alternative, if the mail service delayed delivery, justice requires that the 

request be considered timely. However, the regulations are clear that the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.10 Appellant’s reconsideration request was therefore untimely filed. Thus, he 

must establish clear evidence of error in OWCP’s November 15, 2013 decision. 

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

November 15, 2013 decision. In his request for reconsideration, appellant’s counsel alleged that 

appellant was still disabled because he could not return to his date-of-injury position. The lay

opinion of appellant’s counsel has no evidentiary value regarding a medical issue.11 Counsel’s 

assertion thus does not show clear evidence of error in OWCP’s November 15, 2013 decision, 

which was based upon the medical evidence of record. 

Appellant’s counsel also noted that appellant still required medical benefits. The 

November 15, 2013 decision, however, only terminated appellant’s wage-loss compensation. 

Therefore, counsel’s assertion does not establish error in the November 15, 2013 decision. 

The arguments submitted on reconsideration do not raise a substantial question as to the 

correctness of OWCP’s decision in its termination of appellant’s wage-loss compensation 

benefits. Consequently, the Board finds that OWCP properly found that the untimely 

reconsideration request did not establish clear evidence of error. 

On appeal, appellant’s counsel alleges that OWCP based its decision on erroneous 

hearsay evidence regarding a nonexistent intervening injury, and that OWCP further 

mischaracterized Dr. Benz’s reports which released appellant to full duty with no restrictions 

despite the reports stating that he was released as tolerated. However, he is arguing the merits of 

the case, of which the Board does not have jurisdiction.12 

CONCLUSION 

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

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

 10 20 C.F.R. § 10.607(a) (2011). 

11 See Patricia Stanley, Docket No. 92-1755 (issued August 20, 1993). 

12 20 C.F.R. § 501.2(c). 
5

ORDER 

IT IS HEREBY ORDERED THAT the December 10, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 22, 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