United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.T., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINSTRATION 

MEDICAL CENTER, Sioux Falls, SD, Employer 

__________________________________________ 

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Docket No. 14-0410 

Issued: July 22, 2015 

Appearances: Case Submitted on the Record

Shawn M. Nichols, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On December 12, 2013 appellant, through counsel, filed a timely appeal of an August 20, 

2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her 

request for reconsideration. As more than 180 days elapsed from the most recent merit decision 

in appellant’s record, dated January 23, 2013 to the filing of this appeal, the Board lacks 

jurisdiction to review the merits of appellant’s claim, pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2 

 1

 5 U.S.C. § 8101 et seq.

2

 Counsel submitted additional evidence on appeal. The Board, however, is precluded from reviewing this 

evidence for the first time on appeal. 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). 
2

ISSUE 

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

reconsideration of the merits because her request was untimely filed and failed to demonstrate 

clear evidence of error. 

FACTUAL HISTORY 

On February 8, 2012 appellant, then a 49-year-old nurse, filed a traumatic injury claim 

alleging that on February 3, 2012, she slipped on ice on a parking lot sidewalk while in the 

performance of duty. She fractured her right wrist, bruised her right hip and sustained a sore 

neck and shoulder. Appellant stopped work on February 3, 2012. On February 6, 2012 she 

underwent surgery, an open reduction and internal fixation of extra articular distal radius fracture 

with significant dorsal commination. On April 5, 2012 OWCP accepted the claim for closed 

fracture shaft radius and ulna of the right wrist and sprain of the neck. 

On April 20, 2012 appellant filed a Form CA-7 claim for compensation for the period 

April 9 to 20, 2012. In an April 25, 2012 report, Dr. Timothy L. Walker, a Board-certified 

orthopedic surgeon and treating physician, found that she could return to work with no 

limitations. 

In a June 6, 2012 decision, OWCP denied appellant’s claim for wage-loss compensation 

for the period April 9 to 20, 2012 based on the report of Dr. Walker. 

In a June 26, 2012 report, Dr. Todd Sorenson, a family practitioner and a treating 

physician, found that appellant could return to work with no restrictions due to the accepted wrist 

and neck conditions.3

 

Based on appellant’s treating physicians, in a July 2, 2012 decision, OWCP terminated 

appellant’s eligibility for wage-loss benefits effective that date. It noted that her file would 

remain open for medical treatment for the accepted cervical and wrist conditions. 

On July 5, 2012 appellant requested a hearing for the June 6, 2012 denial of her wageloss claim for the period April 9 to 20, 2012. The hearing was held on November 13, 2012. 

Appellant submitted a September 26 2012 report from Dr. Sorenson in which he 

diagnosed depression and postconcussion syndrome. 

 

 3

 In a June 11, 2012 report from Dr. Sorenson, appellant was advised to return to work only two hours a day. 

OWCP determined, however, that the reduction in hours of work was related to appellant’s anxiety which was not 

an accepted condition due to the February 3, 2012 work-related injury. 
3

In a January 23, 2013 decision, an OWCP hearing representative affirmed the June 6, 

2012 decision denying appellant’s period of wage loss due to the wrist and neck conditions.4 

In a letter dated June 26, 2013 and received by OWCP on July 5, 2013, appellant 

requested reconsideration of the July 2, 2012 termination decision. She claimed she was unable 

to work due to the newly accepted condition of postconcussion syndrome. 

By decision dated August 20, 2013, OWCP denied appellant’s request for reconsideration 

of the termination of benefits effective July 2, 2012 as it was untimely filed and failed to present 

clear evidence of error. It noted that at the time of that decision, appellant’s attending physicians 

had released appellant to full, unrestricted duty. 

LEGAL PRECEDENT 

To be entitled to a merit review of an OWCP 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.5

 

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

of the discretionary authority granted OWCP under section 8128(a) of FECA.6

OWCP, however, may not deny an application for review solely on the grounds that 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.”7 OWCP regulations and procedure provide that it 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.8

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

which was decided by OWCP.9 The evidence must be positive, precise and explicit and must 

 4

 Appellant submitted an April 17, 2013 letter to OWCP requesting a formal decision regarding her request to 

expand her accepted condition to include postconcussion syndrome. She submitted additional medical evidence in 

support of her request and OWCP accepted postconcussion syndrome on June 6, 2013. Appellant was advised that 

if she had any temporary total disability or intermittent wage loss attributable to the newly accepted condition, she 

would need to submit medical evidence. She was formally advised of the acceptance by letter dated July 16, 2013. 

5

 20 C.F.R. § 10.607(a). 

6

 5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

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

8 Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a 

(October 2011). OWCP procedure further provides, “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 a mistake. For 

example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing 

that the claimant had a dependent but the award was not paid at the augmented rate. 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.” 

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

manifest on its face that OWCP committed an error.10 Evidence which does not raise a 

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

clear evidence of error.11 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.12 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.13

ANALYSIS 

 OWCP determined that appellant failed to file a timely reconsideration request of the 

July 2, 2012 termination decision. Its procedures provide that the one-year time limitation period 

for requesting reconsideration begins on the date of OWCP’s decision and the request must be 

received by OWCP within one year of the date of the decision.14 A right to reconsideration 

within one year also accompanies any subsequent decision on the issues.15 As appellant’s 

June 26, 2013 request for reconsideration was not received until July 5, 2012, more than one year 

after the July 2, 2012 termination decision, her request was untimely. Consequently, she must 

demonstrate clear evidence of error by OWCP in denying her request for reconsideration. 

OWCP terminated appellant’s compensation for wage-loss benefits effective July 2, 2012 

as it found that the medical evidence from her treating physicians established that she no longer 

had any disability due to her accepted wrist and neck conditions. The Board finds that the 

evidence submitted by appellant in support of her request for reconsideration does not raise a 

substantial question as to the correctness of OWCP’s July 2, 2012 decision, nor does it shift the 

weight of the evidence of record in her favor. OWCP terminated appellant’s wage-loss benefits 

effective July 2, 2012 based upon the April 25, 2012 report of Dr. Walker and the June 26, 2012 

report of Dr. Sorenson, both treating physicians, who determined that appellant could return to 

work with no restrictions based on the accepted wrist and neck conditions. 

On reconsideration, appellant has presented no evidence that any disability was based on 

the accepted conditions. Rather, she has argued that any disability was related to the now 

accepted condition of postconcussion syndrome.16 To establish clear evidence of error, a 

claimant must submit evidence which raises a substantial question concerning the correctness of 

OWCP’s decision. The Board finds that appellant has failed to meet her burden of proof. There 

is no evidence establishing any error in the July 2, 2012 termination decision. 

 10 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

12 See Leona N. Travis, supra note 10. 

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

14 20 C.F.R. § 10.607(a). 

15 Robert F. Stone, 57 ECAB 393 (2005). 

16 If appellant were to claim total or intermittent wage loss attributable to the postconcussion syndrome (Form 

CA-7), OWCP develop those claims as appropriate. 
5

On appeal, counsel argues that appellant relied on advice from OWCP office in Kentucky 

that the request would be timely so long as it was “post-marked” before July 2, 2013. He 

provides no proof or documentation of this advice. Furthermore, the July 2, 2012 OWCP 

decision clearly advised in bold print that the request for reconsideration needed to be “received” 

within one calendar year of the date of the decision.17 Contrary to the argument advanced by 

counsel, appellant had sufficient notice that any request for reconsideration had to be received by 

OWCP within one year of the date of the July 2, 2012 termination decision. 

Additionally, counsel argues on appeal that OWCP’s acceptance of postconcussion 

syndrome supported clear evidence of error in the previous termination decision. However, there 

is no evidence to support that the July 2, 2013 decision was in error.18 

CONCLUSION 

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

reconsideration of the merits as it was untimely filed and failed to show clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the August 20, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed.19

Issued: July 22, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 17 Effective August 29, 2011 OWCP amended its regulations to reflect that an application for reconsideration 

must be received by OWCP within one year of the date of OWCP’s decision for which review is sought. 20 C.F.R. 

§ 10.607(a). Under the Federal (FECA) Procedure Manual, it clearly states that: “[t]imeliness is determined by the 

document receipt date of the reconsideration request [the ‘received’ date in the Integrated Federal Employees’ 

Compensation System (iFECS)].” Supra note 5 at 2.1602(4)(b). 

18 The Board notes that any claimed wage loss associated with the later accepted condition of postconcussion 

syndrome would have to be decided by OWCP prior to any review by the Board. 

19 Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member 

of the Board effective December 27, 2014.