United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

CONNECTICUT AIR NATIONAL GUARD, 

Middletown, CT, Employer 

__________________________________________ 

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Docket No. 16-1001 

Issued: September 8, 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 April 11, 2016 appellant filed a timely appeal of an October 14, 2015 nonmerit 

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

elapsed since the most recent merit decision dated May 21, 2014, 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 this case. 

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. 

FACTUAL HISTORY 

On April 7, 2014 a traumatic injury claim (Form CA-1) was filed on appellant’s behalf. 

The employing establishment indicated that on April 4, 2014 appellant, then a 50-year-old 

 1

 5 U.S.C. § 8101 et seq.
2

human resources specialist suffered a heart attack as he was walking to his car after running and 

engaging in his allowed physical training. Appellant stopped work that day. 

In an April 6, 2014 report, Dr. Timothy Lehmann, a Board-certified thoracic and cardiac 

surgeon, advised that appellant was admitted after having cardiac arrest. He noted that appellant 

had a history of hypertension and indicated that physical examination revealed 130/80 blood 

pressure, no soft masses, femoral and pedal pulses 2+, and no murmur. Dr. Lehmann 

recommended a coronary artery bypass. 

The employing establishment authorized medical treatment in an April 7, 2014 

Authorization for Examination and/or Treatment (Form CA-16). In an accompanying April 11, 

2014 attending physician’s report, Dr. Lehmann assessed myocardial infarction and coronary 

artery disease. He checked the boxed marked “yes” to indicate that appellant’s condition was 

caused by an employment activity and noted that he was totally disabled from April 11 through 

July 1, 2014. 

By letter dated April 15, 2014, OWCP advised appellant of the type of evidence needed 

to establish his claim. In another April 15, 2014 letter, it also requested that the employing 

establishment provide additional information. 

In an April 7, 2014 surgery report, Dr. Lehmann diagnosed coronary artery disease and 

ventricular fibrillation arrest. He noted that appellant underwent a coronary artery bypass and 

grafting times four. 

An April 7, 2014 work capacity evaluation advised that appellant underwent a quadruple 

bypass on April 7, 2014 and was unable to work until July 7, 2014. 

In an April 21, 2014 statement, James Quagliaroli, the deputy director of human 

resources, advised that “a maximum of three hours per week may be authorized for personal 

physical fitness and exercise training in order to promote better health and welfare and to help 

meet the standards for annual physical fitness testing.” He noted that appellant was authorized to 

perform physical fitness training activity on the date of injury. Multiple witness statements were 

submitted. The statements indicated that appellant collapsed after running on the track at 

Bradley Air National Guard Base. They noted that cardiopulmonary resuscitation (CPR) was 

administered and that an automated external defibrillator was used until the first responders 

arrived. 

In an April 24, 2014 attending physician’s report (Form CA-20), Dr. Lehmann checked 

the box marked “yes” to indicate that appellant’s condition was caused by an employment 

activity. He explained that appellant’s cardiac arrest occurred at work while running. 

Dr. Lehmann diagnosed severe triple vessel disease and noted that appellant had undergone a 

quadruple coronary artery bypass which rendered him unable to work until July 7, 2014. 

By decision dated May 21, 2014, OWCP denied appellant’s claim because the medical 

evidence of record was insufficient to establish causal relationship between his medical condition 

and the accepted work event. 

Appellant continued to submit evidence. In an April 4, 2014 emergency department 

report, Dr. Daniel Perl, Board-certified in family medicine, advised that appellant had a history 
3

of hypertension, high cholesterol, and a family history of cardiac disease. He noted that 

appellant sustained a syncopal episode after completing a one and a half mile run. Dr. Perl noted 

that appellant was unresponsive and bystanders performed CPR and administered a defibrillator 

shock. Physical examination revealed a normal neurologic and respiratory examination. He 

advised that appellant would be placed on continuous cardiac monitoring. 

Multiple diagnostic reports were submitted. In an April 4, 2014 diagnostic report, 

Dr. Pupinder Jaswal, a Board-certified diagnostic radiologist, advised that a computerized 

tomography (CT) scan of the head revealed mild hyper-dense hemorrhagic edema in the upper 

part of the right parietal scalp. Dr. Clifford Freling, a Board-certified diagnostic radiologist, 

advised that a computerized tomography angiography (CTA) revealed no evidence of pulmonary 

embolus. In an April 7, 2014 diagnostic report, Dr. Michael Twohig, a Board-certified 

diagnostic radiologist, advised that a chest x-ray revealed a left endotracheal tube, central venous 

pressure (CVP) line in good position, no pneumothorax, no infiltrates, and no effusions. In an 

April 8, 2014 diagnostic report, Dr. Michael Firestone, a Board-certified diagnostic radiologist 

advised that a chest x-ray revealed stable postoperative appearance, visual left chest tube, no 

pneumothorax, stable heart and lungs, and a removed endotracheal tube. Several 

electrocardiography (ECG) reports were submitted. 

In an April 5, 2014 report, Dr. Aneesh Tolat, Board-certified in internal medicine and 

cardiovascular disease, advised that appellant experienced syncope and cardiac arrest after 

completing a one-and-a-half-mile practice run with the employing establishment. He noted that 

appellant related that he felt winded after the run and fell when he walked back to his truck. 

Dr. Tolat advised that appellant indicated that he ran and exercised three to five times a week and 

smoked one pack of cigarettes a day. He diagnosed coronary artery disease, related ischemia, 

smoking-related vasospasm, or some other form of structural heart disease. 

By letter dated May 18, 2015 and received by OWCP on May 26, 2015, appellant 

requested reconsideration. Appellant argued that medical evidence was sufficient to establish his 

claim as Dr. Lehmann indicated that he sustained cardiac arrest at work while running. He 

contended that Dr. Lehmann did not merely “check a box” to establish causal relation as he 

provided an explanation as requested. Appellant submitted reports previously considered by 

OWCP. 

In an April 24, 2014 report, Dr. Lehmann advised that appellant was doing well with no 

complaints following an April 7, 2014 coronary artery bypass surgery. 

In a June 5, 2015 report, Dr. Murthappa Prakash, Board-certified in internal medicine and 

cardiovascular disease provided the history of the April 4, 2014 incident. He opined that 

appellant’s “cardiac arrest was precipitated by the activity of physical exercise, given appellant’s 

underlying condition of severe coronary artery disease.” Dr. Prakash indicated that cardiac arrest 

could occur with exercise or independent of exercise and noted that appellant’s cardiac arrest 

was possibly reflected a ruptured plaque that led to an acute ischemic event and manifested as 

ventricular fibrillation resulting in cardiac arrest. 

By decision dated October 14, 2015, OWCP denied appellant’s request for 

reconsideration as it was untimely filed and failed to demonstrate clear evidence of error. 
4

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s 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.2 

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.3

 

OWCP, however, may not deny an application for review solely because 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.

4

 OWCP regulations and procedures 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 demonstrates clear evidence of error on the part of OWCP.5

 

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

issue which was decided by OWCP.6 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.7

 Evidence which does not raise a 

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

demonstrate clear evidence of error.8 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.9 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.10 

ANALYSIS 

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

request for reconsideration. The most recent OWCP merit decision in this case was issued on 

May 21, 2014. Appellant’s request for reconsideration was not received by OWCP until May 26, 

2015, more than one year after the May 21, 2014 merit decision. Therefore, it was untimely 

 2

 20 C.F.R. § 10.607(a). 

3

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

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

5 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) 

(October 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. 

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. 

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

7 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

9 See supra note 9. 

10 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 
5

filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying 

his claim for compensation. 

The Board finds that appellant has not demonstrated clear evidence of error on the part of 

OWCP in the denial of his traumatic injury claim. The evidence submitted by appellant did not 

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

In support of reconsideration, appellant argued that medical evidence was sufficient to 

establish his claim as Dr. Lehmann indicated that he sustained cardiac arrest at work while 

running. He contended that Dr. Lehmann did not merely “check a box” to establish causal 

relation as he provided an explanation as requested. As noted, it is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion.11 Appellant’s 

argument does not raise a substantial question as to the correctness of OWCP’s decision. 

Appellant also submitted several diagnostic reports. However, these reports do not 

provide an opinion on causal relationship. As a result, these reports do not raise a substantial 

question as to the correctness of OWCP’s decision in its denial of appellant’s claim. 

In his April 4, 2014 report, Dr. Perl advised that appellant had a history of hypertension, 

high cholesterol, and a family history of cardiac disease. He noted that appellant had a syncopal 

episode after completing a one and a half mile run. In his April 5, 2014 report, Dr. Tolata 

advised that appellant experienced syncope and cardiac arrest after completing a one and a half 

mile practice run with the employing establishment. He noted that appellant related that he felt 

winded after the run and fell when he walked back to his truck. In his April 24, 2014 report, 

Dr. Lehmann advised that appellant was doing well with no complaints following an April 7, 

2014 coronary artery bypass surgery. Although these reports provide a history of the injury, they 

do not raise a substantial question as to the correctness of OWCP’s denial of appellant’s claim. 

In his June 5, 2015 report, Dr. Prakash opined that appellant’s “cardiac arrest was 

precipitated by the activity of physical exercise, given the underlying condition of severe 

coronary artery disease.” He indicated that cardiac arrest could occur during exercise or 

independent of exercise and noted that appellant’s cardiac arrest soon after exercising possibly 

reflected a ruptured plaque that led to an acute ischemic event and manifested as ventricular 

fibrillation resulting in cardiac arrest. Although Dr. Prakash’s report provides some support for 

causal relationship, it does not raise a substantial question as to the correctness of OWCP’s 

denial of appellant’s claim. The term clear evidence of error is intended to represent a difficult 

standard. 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.12

Appellant resubmitted several documents previously considered by OWCP. However, he 

has not sufficiently explained how resubmission of this evidence is sufficient to raise a 

 11 See supra note 7. 

12 D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5(a) (October 2011). 
6

substantial question as to the correctness of OWCP’s decision. Thus, this resubmitted evidence 

is insufficient to demonstrate clear evidence of error. 

On appeal appellant argued the merits of his claim. However, the Board does not have 

jurisdiction over the merits of the claim. As explained, appellant’s request for reconsideration 

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

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the October 14, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 8, 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