United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.P., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. 

MARSHALLS SERVICE, Omaha, NE, Employer 

__________________________________________ 

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Docket No. 15-1331 

Issued: March 18, 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 May 27, 2015 appellant filed a timely appeal from an April 30, 2015 nonmerit 

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

has elapsed from the last merit decision dated August 2, 2013 to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

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

501.3, the Board lacks jurisdiction to review the merits of the claim. 

ISSUE 

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

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

On appeal appellant argues that his lumbar problems relate to an accepted October 4, 

2004 employment injury. He contends that the medical evidence submitted establishes his 

claims and medical expenses incurred should be paid by OWCP. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On June 19, 2013 appellant, then a 38-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1) alleging that on June 18, 2013 he sustained severe lower back pain as 

the result of bending/twisting reaching for his tactical vest.2 

In a July 3, 2013 letter, OWCP informed appellant that the evidence of record was 

insufficient to establish his claim. It advised him as to the medical and factual evidence required 

to establish his claim and afforded him 30 days to provide the requested information. 

In response to OWCP’s request appellant submitted hospital and medical reports. 

In a June 20, 2013 emergency room report, Dr. Jeffrey S. Cooper, an examining Boardcertified emergency room physician, noted that appellant was seen for back pain which had 

begun two days prior and that, according to appellant, it was a recurrent problem. Appellant 

related that he first sustained a back injury in 2004, which had previously worsened. A physical 

examination revealed lumbar back tenderness, decreased range of motion, and spasm. 

A June 26, 2013 x-ray interpretation showed early lumbar spondylosis and degenerative 

disc disease with no evidence of instability. 

In a June 26, 2013 report signed by Dr. Chris A. Cornett, an examining Board-certified 

orthopedic surgeon, and Dr. Brent R. Hood, an examining osteopath, appellant was diagnosed 

with a herniated disc and lumbar degenerative disc disease. The doctors noted that appellant 

sustained a back injury in 2004. A magnetic resonance imaging (MRI) scan taken at the time 

showed L4-5, L5-S1 bulging discs. Appellant claimed to be incapacitated by back pain several 

times a year and that he recently was seen in the emergency room. Drs. Cornett and Hood 

reported that appellant had a recent episode of low back pain due to twisting and reaching for his 

tactical vest while at work. 

By decision dated August 2, 2013, OWCP denied the claim as the medical evidence of 

record failed to establish a causal relationship between the diagnosed conditions and the accepted 

June 18, 2013 incident. 

Appellant was seen on May 7, 2014 by Dr. Cornett for a follow-up from his 2004 back 

injury. He diagnosed an exacerbation of his preexisting back condition. 

On June 9, 2014 OWCP received June 23, 2013 discharge instructions from Dr. Cooper, 

a June 23, 2013 Nebraska Medical Center report by Dr. Aaron N. Barksdale, an examining 

Board-certified emergency room physician, and appellant’s statement. 

In the June 23, 2014 report, Dr. Barksdale provided physical examination findings and 

diagnosed a likely right side lumbar muscle strain. Under history of injury, he noted that 

 2

 A June 21, 2013 memorandum to file shows that appellant has prior claims under OWCP File Nos. xxxxxx337, 

xxxxxx292, xxxxxx893, xxxxxx807, and xxxxxx153. No injury dates were associated with the claim numbers. 
3

appellant had a history of recurrent back pain which had been aggravated when he reached into 

his back seat a few days prior. 

OWCP also received chiropractor reports from Mouw Family Chiropractic for the period 

April 4 to July 22, 2014 which reflected a diagnosis of subluxation and provided details of the 

treatment provided. 

In a November 24, 2014 e-mail appellant requested help from the employing 

establishment in getting his June 20, 2013 hospital bill paid. He stated that his emergency room 

visits on June 20 and 23, 2013 were due to his accepted October 4, 2004 injury. While OWCP 

paid the June 20, 2013 emergency room bill, it denied the June 23, 2013 emergency room bill.3

On December 1, 2014 OWCP received appellant’s July 11, 2014 reconsideration request 

of the August 2, 2013 decision. 

Subsequent to his request for reconsideration appellant submitted evidence regarding bills 

and payment materials for the June 23, 2013 Nebraska Medicine emergency room visit, his 

statement regarding unpaid bills for his accepted lumbar condition, and claims filed with OWCP 

for this condition. 

On February 27, 2015 OWCP accepted the condition of L4 and L5 lumbar subluxation 

due to an April 4, 2014 employment injury. 

By decision dated April 30, 2015, OWCP denied appellant’s July 11, 2014 

reconsideration request because his request was untimely filed and failed to demonstrate clear 

evidence of error. 

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a 

claimant must file his application for review within one year of the date of that decision.4 The 

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

of the discretionary authority granted OWCP under section 8128(a) of FECA.5

OWCP, however, may not deny an application for review solely as the application was 

untimely filed. When an application for review is untimely filed, it must nevertheless undertake 

a limited review to determine whether the application demonstrates clear evidence of error.6

 

OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit 

 3

 Appellant also submitted evidence detailing his prior OWCP claims including, OWCP File Nos. xxxxxx337 (an 

October 4, 2004 injury date), xxxxxx929 (a May 1, 2006 injury date), xxxxxx893 (an October 7, 2008 injury date), 

xxxxxx807 (a February 10, 2009 injury date), xxxxxx153 (an October 23, 2012 injury date), xxxxxx436 (a June 18, 

2013 injury date), and xxxxxx128 (an April 4, 2014 injury date). 

4

 20 C.F.R. § 10.607(a). 

5

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 
4

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the 

claimant’s application for review demonstrates clear evidence of error on the part of OWCP.7

To demonstrate 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 manifest on its face that OWCP committed an error.9

 Evidence which does not raise a 

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

demonstrate 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 show 

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 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.13

ANALYSIS 

OWCP properly determined that appellant failed to file a timely application for review. 

It issued its most recent merit decision in this case on August 2, 2013. OWCP received 

appellant’s July 11, 2014 request for reconsideration on December 1, 2014; thus, the request was 

outside the one-year time limit.14 Consequently, appellant must demonstrate clear evidence of 

error by OWCP in denying his traumatic injury claim.15 

 7 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e) 

(December 2011). OWCP procedures further provide 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. Id. at Chapter 2.1602.3c. 

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

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

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

11 See supra note 9. 

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

13 Leon D. Faidley, Jr., supra note 5. 

14 See Federal (FECA) Procedure Manual, Part 2 – Claims, Reconsiderations, Chapter 2.1602(e)(6) 

(August 2011). For decisions issued on or after August 29, 2011, there is still a one-year time limit for requesting 

reconsideration. The one-year period begins on the date of the original decision and the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which review is sought. 

15 20 C.F.R. § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005). 
5

The Board finds that the evidence submitted by appellant in support of his request for 

reconsideration does not raise a substantial question as to the correctness of OWCP’s August 2, 

2013 decision or shift the weight of the evidence of record in his favor. In the last merit 

decision, OWCP found the medical evidence of record insufficient to establish a causal 

relationship between appellant’s diagnosed medical conditions and the accepted June 18, 2013 

incident. 

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

which was decided by OWCP.16 Appellant has not submitted rationalized medical evidence 

addressing how the June 18, 2013 incident caused or aggravated a lumbar condition. He 

resubmitted a June 23, 2014 report by Dr. Barksdale which had been considered by OWCP in its 

August 2, 2013 decision. Appellant also submitted a June 20, 2013 hospital bill and treatment 

reports for the period April 4 to July 22, 2014 from his chiropractor. These reports postdate and 

do not discuss the June 18, 2013 incident. Appellant has not provided any well-rationalized 

medical opinion establishing error in the denial of his traumatic injury claim. The evidence 

submitted by appellant is insufficient to raise a substantial question as to the correctness of the 

last merit decision. He has not demonstrated clear evidence of error. 

On appeal appellant’s argument concerns the failure of OWCP to pay medical bills which 

he argues are clearly related to his accepted October 4, 2004 employment injury. He states that 

he had a healthy back prior to working for the employing establishment and sustained an 

accepted work injury on October 4, 2004. Since the October 4, 2004 injury appellant has had 

pain and continuing back problems. He noted that he had also filed a traumatic injury claim for 

an incident which occurred on April 4, 2014, which OWCP accepted and was as accurate as the 

June 18, 2013 claim. Appellant contended that both the June 18, 2013 and April 4, 2014 

incidents were an aggravation of his preexisting condition. In conclusion, he requested that 

OWCP pay his medical bills for the June 23, 2013 emergency room visit, the unpaid chiropractic 

treatment due to the April 4, 2014 injury, and that he be granted approval for 48 chiropractic 

visits per year. As discussed above, the Board does not have jurisdiction over the merits of the 

underlying issue of OWCP’s denial of his June 18, 2013 traumatic injury claim. Moreover, 

appellant’s arguments pertain to the failure of OWCP to approve medical expenses related to 

either the October 4, 2004 injury or aggravations of this condition. 

CONCLUSION 

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

review of the merits as his request was untimely filed and failed to demonstrate clear evidence of 

error. 

 16 Howard Y. Miyashiro, 51 ECAB 253 (1999). 
6

ORDER 

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

Compensation Programs dated April 30, 2015 is affirmed. 

Issued: March 18, 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