United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.B., Appellant 

and 

DEPARTMENT OF THE ARMY, ABERDEEN 

PROVING GROUNDS, Aberdeen, MD, 

Employer 

__________________________________________ 

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Docket No. 15-1575 

Issued: October 27, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 July 16, 2015 appellant filed a timely appeal from a June 1, 2015 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed since 

the last merit decision dated July 18, 2013, pursuant to the Federal Employees’ Compensation 

Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of 

this case. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s application for 

reconsideration was untimely filed and failed to show clear evidence or error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 15, 2012 appellant, then a 61-year-old engineering equipment operator, filed a 

traumatic injury claim (Form CA-1) alleging that on May 12, 2012 he sustained injury to his left 

index finger while in the performance of duty. He stated on the claim form that his finger was 

caught as he pulled a gate shut. On August 6, 2012 OWCP accepted the claim for open wound 

of the finger without complications, left. 

Appellant submitted a claim for compensation (Form CA-7) on May 2, 2013, checking a 

box indicating that he was claiming a schedule award. By letter dated June 16, 2013, OWCP 

advised him that he needed to submit medical evidence with a diagnosis, a detailed description of 

any permanent impairment, and a rating of the impairment under the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides). 

By decision dated July 18, 2013, OWCP denied appellant’s claim for a schedule award, 

finding that the medical evidence was insufficient to establish permanent impairment. 

On July 23, 2013 OWCP received a July 12, 2013 report from Dr. Ramon DeJesus, a 

Board-certified hand surgeon, who provided results on examination. Dr. DeJesus reported that 

appellant’s grip strength of the left hand was 4/5. He noted that appellant had reached maximum 

medical improvement. Dr. DeJesus diagnosed a finger contusion. On September 16, 2013 

appellant submitted a revised copy of the July 12, 2013 report from Dr. DeJesus, containing an 

additional diagnosis of finger open wound and a note: “correction [September 9, 2013] to 

include original diagnosis.” Follow-up on the same injury. 

The record contains a January 28, 2014 e-mail correspondence from an employing 

establishment compensation specialist requesting that OWCP schedule a second opinion 

physician examination. The compensation specialist stated that appellant was having difficulty 

obtaining a permanent impairment rating. 

On November 4, 2014 OWCP received a reconsideration request dated October 10, 2014. 

Appellant did not submit additional evidence or argument. 

By decision dated June 1, 2015, OWCP found that the reconsideration request was 

untimely and failed to establish clear evidence or error. The reconsideration request was 

accordingly denied. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.2

 The 

 2

 5 U.S.C. § 8128(a). 
3

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”3

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.4

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.5

 It, through regulations, 

has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a) of 

FECA.6

 As one such limitation, 20 C.F.R. § 10.607 provides that an application for 

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

review is sought.7

 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 

evidence must be positive, precise, and explicit and must manifest on its face that OWCP 

committed an error.8

 

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.9

 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.10 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.11 A determination of whether the claimant has 

established clear evidence of error entails a limited review of how the evidence submitted with 

the reconsideration request bears on the evidence previously of record.12

ANALYSIS 

In the present case, appellant submitted an application for reconsideration on 

November 4, 2014. When the underlying compensation issue is a schedule award, an initial 

question is whether the claimant has submitted an application for reconsideration or has 

 3

 20 C.F.R. § 10.605 (2012). 

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

5

 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 

6

 5 U.S.C. §§ 8101-8193. 

7

 20 C.F.R. § 10.607 (2012). 

8 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

9 Annie L. Billingsley, 50 ECAB 210 (1998). 

10 Jimmy L. Day, 48 ECAB 652 (1997). 

11 Id. 

12 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 
4

requested an increased schedule award. Even if appellant has requested “reconsideration,” if 

there is new and relevant evidence with respect to an increased permanent impairment, then a 

claimant may be entitled to a merit decision on the issue.13 However, when a claimant does not 

submit any relevant evidence with respect to an increased schedule award, then OWCP may 

properly determine that appellant has filed an application for reconsideration of a schedule award 

decision.14 In this case, appellant did not submit any relevant evidence with respect to an 

increased permanent impairment. He did not submit any medical evidence or refer to any 

medical evidence submitted after July 18, 2013. The July 12, 2013 report from Dr. DeJesus, 

submitted on July 23, 2013, does not provide an opinion as to a permanent impairment under the 

A.M.A., Guides. The September 9, 2013 addendum report from Dr. DeJesus also does not 

address a permanent impairment. Therefore OWCP properly considered appellant’s submission 

as an application for reconsideration. 

As an application for reconsideration of the July 18, 2013 decision, it must have been 

received by OWCP within one year of OWCP’s decision from which review is sought, to be 

considered timely. The application in this case was received on November 4, 2014. As this was 

more than one year after the July 18, 2013 decision, it is untimely filed. 

An untimely application for reconsideration must show clear evidence or error by 

OWCP. The Board finds that appellant did not show clear evidence of error in this case. 

Appellant did not submit any evidence or argument with respect to error by OWCP in 

determining that he was not entitled to a schedule award. OWCP found that the medical 

evidence was insufficient to establish an employment-related permanent impairment to a 

scheduled member or function of the body, and no clear evidence of error was presented. 

On appeal, appellant indicates that he had requested that OWCP schedule a second 

opinion examination. He may at any time request an increased schedule award and submit new 

and relevant medical evidence to OWCP with respect to an employment-related permanent 

impairment. The Board’s review in the present case is limited to the clear evidence of error 

issue. For the reasons stated, the Board will affirm the June 1, 2015 decision. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s application for 

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

 13 See Linda T. Brown, 51 ECAB 115 (1999). 

14 See W.J., Docket No. 12-1746 (issued February 5, 2013). 
5

ORDER 

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

Compensation Programs dated June 1, 2015 is affirmed. 

Issued: October 27, 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