United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.M., Appellant 

and 

DEPARTMENT OF LABOR, OFFICE OF 

FEDERAL CONTRACT COMPLIANCE 

PROGRAMS, San Francisco, CA, Employer 

__________________________________________ 

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Docket No. 15-1873 

Issued: January 6, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On September 10, 2015 appellant filed a timely appeal from a March 20, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 

days has elapsed since the most recent merit decision dated December 20, 2013 and the filing of 

this appeal, and pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3,2

 the Board lacks jurisdiction to review the merits of appellant’s case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

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

On appeal, appellant argues the merits of her claim. 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the March 20, 2015 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

final decision. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On September 20, 2013 appellant, a 58-year-old equal employment opportunity 

specialist, filed an occupational disease claim (Form CA-2) alleging that she developed trigger 

finger due to factors of her federal employment. On the claim form, the employing 

establishment indicated that she had been out of work since April 2013, that the medical 

evidence she provided was more than a year old, and that she had intervening bilateral carpal 

tunnel surgery. 

In a September 24, 2013 letter, OWCP notified appellant of the deficiencies of her claim 

and afforded her 30 days to submit additional evidence and respond to its inquiries. 

Appellant submitted an October 15, 2013 narrative statement indicating that she met with 

her doctor on October 11, 2013 and was awaiting his medical report. 

By decision dated December 20, 2013, OWCP denied the claim finding that appellant 

had failed to establish fact of injury. It found that the evidence was insufficient to establish a 

medical diagnosis causally related to a compensable factor of employment. 

Appellant requested reconsideration on an appeal request form dated December 18, 2014 

and received by OWCP on December 23, 2014. She submitted the first page of an occupational 

disease claim (Form CA-2) indicating that her federal duties included continuous computer 

typing, lifting, and carrying work-related equipment and materials. Appellant also submitted a 

June 23, 2006 letter from the employing establishment stating that she was “required to keyboard 

and has carried materials, including laptops” during the course of her federal employment. She 

further submitted pages one and six of an incomplete October 17, 2012 second opinion report 

from Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, who indicated that appellant had 

an accepted claim for bilateral carpal tunnel syndrome under OWCP File No. xxxxxx231 and 

found that she had “trigger fingers in both little fingers,” as well as triggering of the right ring 

finger and mild triggering of the left ring finger. In a December 19, 2014 report Dr. Maury 

Harwood, a Board-certified orthopedic surgeon, opined that appellant’s carpal tunnel syndrome 

contributed to the development of trigger fingers and that her condition was a direct result of her 

severe bilateral carpal tunnel syndrome. He concluded that trigger fingers should be included in 

appellant’s bilateral carpal tunnel syndrome claim under File No. xxxxxx231. 

By decision dated March 20, 2015, OWCP denied appellant’s request for reconsideration 

as it was untimely filed and failed to present clear evidence of error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3

 OWCP, through its regulations, has imposed limitations on the exercise of its 

discretionary authority under section 8128(a).4 One such limitation provides that an application 

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

                                                             3 See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

4 See Annette Louise, 54 ECAB 783, 789-90 (2003). 
3

review is sought.5

 The Board has found that the imposition of this one-year time limitation does 

not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).6 

Section 10.607(b) states that OWCP will consider an untimely application for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. The reconsideration request must establish that OWCP’s decision was, on its face, 

erroneous.7 

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

issue, which was decided by OWCP.8

 The evidence must be positive, precise and explicit and 

must be manifest on its face that OWCP committed an error.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 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.12 

To establish clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflict in 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 the OWCP decision.13 The Board makes 

an independent determination of whether a claimant has submitted clear evidence of error on the 

part of OWCP such that OWCP abused its discretion in denying merit review in the face of such 

evidence.14 

ANALYSIS 

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

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

                                                             5

 20 C.F.R. § 10.607(a). 

6 See F.R., Docket No. 09-575 (issued January 4, 2010). 

7

 20 C.F.R. § 10.607(b). 

8 See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992). 

9 See M.L., Docket No. 09-956 (issued April 15, 2010). 

10 See Richard L. Rhodes, 50 ECAB 259, 264 (1999). 

11 See Leona N. Travis, 43 ECAB 227, 241 (1991). 

12 See Jimmy L. Day, 48 ECAB 652 (1997). 

13 See Velvetta C. Coleman, 48 ECAB 367, 370 (1997). 

14 See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993). 
4

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

request for reconsideration. OWCP’s regulations15 and procedures16 establish a one-year time 

limit for requesting reconsideration, which begins on the date of the original OWCP decision. 

The most recent merit decision was OWCP’s December 20, 2013 decision. Appellant had one 

year from the date of this decision to make a timely request for reconsideration. Since OWCP 

did not receive her request until December 23, 2014, it was filed outside the one-year time 

period.17 As appellant’s December 23, 2014 request for reconsideration was submitted more 

than one year after the December 20, 2013 merit decision, it was untimely filed. Consequently, 

she must demonstrate clear evidence of error by OWCP in the denial of her claim.18 

In its December 20, 2013 decision, OWCP originally denied appellant’s occupational 

disease claim because she had failed to establish fact of injury. It found that the evidence was 

insufficient to establish a diagnosis causally related to a compensable factor of employment. An 

incomplete October 17, 2012 second opinion report from Dr. Swartz relating to conditions from 

another claim cannot establish error in the December 20, 2013 OWCP decision. Dr. Swartz did 

not address the present claim and matters pertaining to OWCP File No. xxxxxx231 are not 

presently before the Board. This report does not establish clear evidence of error, nor does it 

raise a substantial question as to the correctness of OWCP’s decision. 

In Dr. Harwood’s December 19, 2014 report, the trigger finger conditions were said to be 

related to appellant’s carpal tunnel syndrome. Dr. Harwood failed to address the present claim. 

His report does not establish clear evidence of error, nor does it raise a substantial question as to 

the correctness of OWCP’s decision. 

To establish clear evidence of error, it is not sufficient merely to show that the evidence 

could be construed so as to produce a contrary conclusion. The term clear evidence of error is 

intended to represent a difficult standard.19 None of the evidence submitted manifests on its face 

that OWCP committed an error in denying appellant’s claim. Appellant has not otherwise 

submitted evidence of sufficient probative value to raise a substantial question as to the 

correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of 

error. 

                                                             15 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005). 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011); see 

supra note 13. 

17 OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new regulations provide 

that the date of the reconsideration request for timeliness purposes was changed from the date the request was 

mailed to the date the request was received by OWCP. See 20 C.F.R. § 10.607 (2011). Therefore, OWCP utilized 

the new regulations and found that as OWCP received appellant’s request for reconsideration on December 23, 

2014, or over one year after the December 20, 2013 decision, appellant’s request was untimely filed. 

18 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 

19 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011); see 

Dean D. Beets, supra note 8. 
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On appeal, appellant argues the merits of her claim. The Board noted above that it only 

has jurisdiction over OWCP’s March 20, 2015 nonmerit decision which denied her request for 

reconsideration and, therefore, is precluded from conducting a merit review. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the March 20, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board