United States Department of Labor 

Employees’ Compensation Appeals Board 

A.C., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Richmond, VA, Employer 

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Docket No. 14-1883 

Issued: January 26, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 25, 2014 appellant filed a timely appeal of an August 14, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP), finding that her request for 

reconsideration was untimely and failed to show clear evidence of error. Pursuant to the Federal 

Employees’ Compensation Act1 (FECA), the Board has jurisdiction over the August 14, 2014 

nonmerit decision. The Board lacks jurisdiction over the merits of the claim.2 

ISSUE 

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

reconsideration of the merits on the grounds that her request was untimely filed and failed to 

demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The last merit decision was an OWCP decision dated May 20, 2013, denying authorization for right total knee 

replacement. A claimant has 180 days to file an appeal with the Board following an adverse decision by OWCP. 

20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY 

On September 20, 2011 appellant, then a 44-year-old clerk, slipped on a wet step as she 

entered the employing establishment. She alleged that she injured her right knee, right wrist, 

mid-way of her arm, and right shoulder in the performance of duty. On April 24, 2012 appellant 

underwent a revision of a right total knee arthroplasty. 

In a June 25, 2012 decision, OWCP denied appellant’s claim. It found that the medical 

evidence did not demonstrate that the claimed medical condition was causally related to the 

accepted injury as appellant failed to submit, as requested, a detailed narrative report from her 

physician which rationally explains how the accepted work event brought about the diagnosis. 

On July 13, 2012 appellant requested reconsideration and submitted additional medical 

evidence. In an October 19, 2012 decision, OWCP denied modification of the prior decision. 

On March 10, 2013 appellant requested reconsideration. In a December 18, 2012 report, 

Dr. Robert E. Booth, a Board-certified orthopedic surgeon, noted that he was treating appellant 

for persistent pain in her right knee following a slip and fall on steps at her workplace on 

September 20, 2011. He noted her April 24, 2012 right total knee revisional arthroplasty. 

Dr. Booth opined that “I feel the need for revisional knee surgery was precipitated by the slip and 

fall that occurred on September 20, 2011.” 

In an April 15, 2013 report, Dr. Kevin Hanley, a Board-certified orthopedic surgeon and 

second opinion physician, noted appellant’s history of injury and treatment and examined 

appellant. He advised that the September 20, 2011 fall aggravated her underlying condition, a 

total knee replacement. However, Dr. Hanley opined that it did not lead to a loosening of the 

prosthesis. He explained that she had loss of bone in the sub-prosthetic area, which argued 

against a temporary traumatic worsening. Dr. Hanley noted that the work-related aggravation 

was temporary and had long since resolved. He explained that the revision surgery was 

necessary because of the natural history of the knee replacement and because she was 

overweight. 

By decision dated May 20, 2013, OWCP vacated the October 19, 2012 decision. It 

accepted the claim for complications due to internal orthopedic device, implant and graft, 

temporary, now resolved. In a separate May 20, 2013 decision, OWCP denied authorization for 

revision of right total knee replacement. It found that the work injury did not lead to the need for 

the April 24, 2012 total right knee replacement revision surgery. OWCP found that the weight of 

the medical opinion rested with the second opinion physician, Dr. Hanley.3

 

On July 18, 2014 appellant requested reconsideration of the denial of authorization for 

surgery. In an April 22, 2014 report, Dr. Carver Hills, an internist, noted that appellant was 

 3

 On June 8, 2013 appellant claimed intermittent wage-loss compensation from November 8, 2011 to 

April 13, 2012. The employing establishment indicated that the claim was for leave buyback. Accompanying this 

claim was another copy of Dr. Booth’s April 16, 2012 report as well as disability and treatment notes. On April 8, 

2014 OWCP advised her and the employing establishment that it could not process the claim for leave buyback at 

that time and advised appellant and the employing establishment of the information needed to take further action on 

the request. On April 17, 2014 it informed appellant that it could not authorize leave buyback associated with a 

surgery that was not approved by OWCP. 
3

under his care since September 2012 for multiple medical conditions including osteoarthritis of 

multiple joints and lumbar disc disease. He advised that in October 2013 appellant sustained a 

fall resulting in increased pain of her bilateral knees and right shoulder. Dr. Hills explained that 

her examination revealed laxity of both knees and pain with movement and gait imbalance 

requiring the use of a cane. He opined that appellant was totally disabled from the time of the 

recurrence of her injury. Appellant also submitted October 31, 2011 right knee x-rays. 

In an August 14, 2014 decision, OWCP denied appellant’s request for reconsideration for 

the reason that it was not timely filed and failed to present clear evidence of error. 

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.4

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be filed within one year of the date of OWCP’s 

decision for which review is sought.5

 Imposition of this one-year filing limitation does not 

constitute an abuse of discretion.6

 OWCP may not deny a reconsideration request solely on the ground that it was not timely 

filed. When a claimant’s application for review is not timely filed, it must nevertheless 

undertake a limited review to determine whether it establishes clear evidence of error. If an 

application demonstrates clear evidence of error, OWCP will reopen the case for merit review.7

To establish clear evidence of error, a claimant must submit evidence that is relevant to 

the issue that was decided by OWCP,8 is positive, precise, and explicit, and manifests on its face 

that OWCP committed an error.9 The evidence must not only be of sufficient probative value to 

create a conflict in medical opinion or establish a clear procedural error, but must also shift the 

weight of the evidence in favor of the claimant and raise a substantial question as to the 

correctness of OWCP’s decision for which review is sought. Evidence that does not raise a 

substantial question is insufficient to establish clear evidence of error. It is not enough merely to 

show that the evidence could be construed so as to produce a contrary conclusion. A 

determination of whether the claimant has established clear evidence of error entails a limited 

 4 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

5

 20 C.F.R. § 10.607(a). See also D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340 

(issued June 22, 2009). 

6 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

7 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011) (“the term ‘clear evidence of error’ is 

intended to represent a difficult standard”). 

8 See Dean D. Beets, 43 ECAB 1153 (1992). 

9 See Leona N. Travis, 43 ECAB 227 (1991). 
4

review of how the evidence submitted with the reconsideration request bears on the evidence 

previously of record.10

ANALYSIS 

In its August 14, 2014 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It rendered its last merit decision on May 20, 2013. Appellant’s 

July 18, 2014 request for reconsideration was submitted more than one year after the May 20, 

2013 merit decision and was, therefore, untimely. 

The Board also finds that appellant’s untimely request failed to demonstrate clear 

evidence of error. In its last merit decision dated May 20, 2013, OWCP accepted that her 

September 20, 2011 fall at work aggravated her underlying condition, a previous total right knee 

replacement, but found that this aggravation had resolved and that it did not necessitate the 

April 24, 2012 revision of right total knee replacement. On reconsideration, appellant did not 

make any arguments. She did submit medical evidence around the time of her request. In an 

April 22, 2014 report, Dr. Hills advised that in October 2013 appellant sustained a fall resulting 

in increased pain of her bilateral knees and right shoulder. He opined that she was totally 

disabled from the time of the recurrence of her injury. The Board notes 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 of a 

miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which 

if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error and would not require a review of a case.11 

Dr. Hills’ report does not establish clear evidence of error. Appellant also submitted right knee 

x-rays dated October 31, 2011 right knee x-rays but these were not accompanied by a physician’s 

report and she did not otherwise explain how these established clear evidence of error. She also 

resubmitted Dr. Booth’s April 16, 2012 report but she did not indicate how resubmission of this 

report showed clear evidence of error. 

Appellant has not otherwise provided any argument or evidence of sufficient probative 

value to shift the weight of the evidence in her favor and raise a substantial question as to the 

correctness of OWCP’s May 20, 2013 decision. Consequently, OWCP properly denied her 

reconsideration request as her request does not establish clear evidence of error. 

CONCLUSION 

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

reconsideration of the merits on the grounds that it was untimely filed and failed to show clear 

evidence of error. 

 10 See J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued 

September 2, 2010). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011). 
5

ORDER 

IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 26, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board