United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.S., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SHOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 16-0902 

Issued: September 28, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 29, 2016 appellant filed a timely appeal from a March 2, 2016 nonmerit 

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

elapsed since the last merit decision dated November 25, 2014, 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 merit decision by OWCP. 

ISSUE 

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

review of the merits as it was untimely filed and failed to demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On October 14, 2014 appellant, then a 50-year-old helper trainee of ship inactivation and 

dismantling, filed an occupational disease claim (Form CA-2) alleging that he developed two 

herniated discs as a result of his federal employment duties. He notified his supervisor, first 

received medical care, and stopped work on October 1, 2014. On the reverse side of the form, 

the employing establishment challenged the claim stating that the cause of injury was unclear as 

appellant was only hired on August 18, 2014. 

By letter dated October 22, 2014, OWCP informed appellant that the evidence of record 

was insufficient to support his claim. Appellant was advised of the medical and factual evidence 

needed and was afforded 30 days to respond. OWCP requested appellant to describe in detail the 

employment-related activities which he believed contributed to his back condition, how often he 

performed the activities described, the length and period of the described activities, when he first 

noticed his condition, the symptoms he experienced, what treatment he had done, prior 

orthopedic injuries to his back, whether he had ever undergone surgery for these injuries, any 

diagnosis or treatment for a prior back condition, and activities he engaged in outside of his 

federal employment. 

In support of his claim, appellant submitted a Notification of Personnel Action (Form SF50) for a helper trainee, an official position description, and a U.S. Office of Personnel 

Management Certificate of Medical Examination which provided a description of employment 

duties for ship inactivation and dismantling. 

In an October 1, 2014 urgent care discharge sheet, Dr. Andrew R. Hamilton, Boardcertified in family medicine, diagnosed musculoskeletal pain and ataxia. Medical work 

restrictions dated October 2, November 12, and 14, 2014 were also provided. 

By letter dated November 3, 2014, the employing establishment controverted the claim 

arguing that appellant’s herniated discs were not causally related to his October 1, 2014 injury as 

he failed to establish fact of injury, causal relationship, and that the injury occurred in the 

performance of duty. 

In a November 17, 2014 medical report, Dr. Bruce R. Christen, Board-certified in 

occupational medicine, reported that appellant was a ship dismantler and presented for 

assignment of temporary work limits and accommodations due to his October 6, 2014 spinal 

surgery for T4-5 discectomy and fusion. He diagnosed thoracic radiculopathy and released 

appellant to work with restrictions. 

By decision dated November 25, 2014, OWCP denied appellant’s claim finding that the 

evidence of record failed to establish that the occupational exposure occurred as alleged. It noted 

that appellant failed to establish fact of injury because he did not respond to the questions 

provided in its October 22, 2014 development letter. 

In an October 18, 2015 narrative statement, appellant described his employment duties at 

the employing establishment, which entailed dismantling and recycling ships and submarines. 

He reported that on September 3 through 5, 2014, he was tasked with shoveling up linoleum and 
3

cement grout flooring material which he bagged, labeled, and moved to the staging area 

approximately 75 feet. Appellant described other employment duties he was required to perform 

and stated that the work activities of September 3 through 5, 2014 caused his back problems. He 

concluded that his work was physically demanding while his home life was sedentary with no 

physically excessive hobbies. 

In a November 17, 2014 memorandum to employee, the employing establishment 

advised appellant that his medical work limitations expired on December 17, 2014 and he was 

required to resume work on that date. 

In an undated narrative statement received on November 30, 2015, appellant noted that 

he was writing this statement in direct response to correspondence he received from Ms. Sandra 

Knivilla-Ritchie and statements he received from two of his supervisors. He explained that his 

letter was being submitted to refute and clarify his assigned work duties at the employing 

establishment as fact of injury and causal relationship were denied based on statements from his 

assigned supervisors. Appellant provided a detailed description of his assigned work duties. He 

noted that he passed a rigorous physical examination to qualify working for the employing 

establishment and as such, his back injury was caused by his employment duties. Appellant 

further discussed his medical treatment and reports submitted in support of his claim. 

By letter dated December 1, 2015, Ms. Knivilla-Ritchie, a Department of Navy Human 

Resources Specialist, noted that the employing establishment received appellant’s November 30, 

2015 letter and refuted his statements via an attached statement from his Resource Manager 

refuting his statements. 

On January 20, 2016 appellant’s representative, Rachel Montoy, submitted a facsimile to 

OWCP noting that its office received a copy of appellant’s reconsideration packet on 

November 30, 2015. She provided appellant’s undated narrative statement previously received 

by OWCP on November 30, 2015. 

By decision dated January 28, 2016, OWCP denied appellant’s reconsideration request as 

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

In a February 25, 2016 note, appellant’s representative argued that appellant timely filed 

his reconsideration request with accompanying documents on October 30, 2015 which was 

submitted to the employing establishment compensation office. An appeal request form dated 

October 29, 2015 was submitted documented by a stamp stating, “FECA RECEIVED 

October 30, 2015.” In support of his claim, appellant submitted evidence previously of record as 

well as medical reports dated October 2, 2014 through October 18, 2015 documenting treatment 

for his back. A November 24, 2015 email correspondence from appellant’s supervisor was also 

submitted. The supervisor described appellant’s employment duties and stated that his work was 

not strenuous, nor was he required to move beyond the designated weight limits. 

By decision dated March 2, 2016, OWCP denied appellant’s reconsideration request 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’s application for review must be received within one year of the date of that decision.2

 

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.3

 

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year 

filing limitation, if the claimant’s application for review demonstrates clear evidence of error on 

the part of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a 

claimant must submit evidence relevant to the issue decided by OWCP. The evidence must be 

positive, precise, and explicit and it must manifest on its face that OWCP committed an error.4

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

sufficient probative value to create a conflicting 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 OWCP’s decision.5

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to demonstrate clear evidence of error.6 It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion.7

 This entails a 

limited review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.8

 The Board makes an independent determination 

as to whether a claimant has demonstrated clear evidence of error on the part of OWCP.9

ANALYSIS 

In its March 2, 2016 decision, OWCP denied appellant’s request for reconsideration of 

the November 25, 2014 decision, finding that it was untimely filed and failed to demonstrate 

clear evidence of error. The Board finds that OWCP properly determined that his request for 

reconsideration was untimely filed within the one-year time limitation period set forth in 20 

C.F.R. § 10.607. 

 2

 20 C.F.R. § 10.607(a). 

3

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

4

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

5 Annie L. Billingsley, 50 ECAB 210 (1998). 

6 Jimmy L. Day, 48 ECAB 652 (1997). 

7 Id. 

8 Id. 

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 
5

OWCP’s procedures were changed effective August 29, 2011.10 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.11 

OWCP issued its most recent merit decision, denying appellant’s occupational disease claim, on 

November 25, 2014. The one-year time limitation for reconsideration began to run on the date of 

the original decision, and the application for reconsideration must be received by OWCP within 

one year of the date of OWCP’s decision for which review is sought.12 Therefore, appellant had 

one year from November 25, 2014 to submit a timely request for reconsideration. The time for 

requesting reconsideration of OWCP’s November 25, 2014 decision ended on 

November 25, 2015. 

The Board notes initially that on November 6, 2015 OWCP received appellant’s 

October 18, 2015 narrative statement, in which he described his employment duties in response 

to the October 22, 2014 development letter. This statement however did not contain a 

discernable request for reconsideration of the November 25, 2014 decision.13 

Appellant’s undated narrative statement disputing OWCP’s denial was not received until 

November 30, 2015.14 His representative did not notify OWCP of a request for reconsideration 

until January 20, 2016 when she submitted a copy of appellant’s reconsideration packet received 

in her office on November 30, 2015. As OWCP did not receive appellant’s request for 

reconsideration by November 25, 2015, it properly found that the request was untimely filed.15 It 

proceeded to deny appellant’s request for reconsideration utilizing the clear evidence of error 

standard. 

On appeal appellant argues that his request for reconsideration with supporting 

documents was timely submitted to his employing establishment. He argues that his 

representative was told not to submit directly to OWCP as it could create more work and could 

be submitted to his employing establishment’s FECA office. Appellant further argued that his 

reconsideration request was given to Ms. Knivila-Ritchie on October 30, 2015, and thus, was 

timely filed. In a February 25, 2016 note, appellant’s representative argued that on October 30, 

2015 appellant timely filed his reconsideration request with accompanying documents to the 

 10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 2.1602.4 (October 2011). 

11 20 C.F.R. § 10.607 (2011). 

12 Supra note 11. 

13 While no special form is required to request reconsideration, and the word reconsideration need not be used, 

the request must be in writing, be signed and dated by the claimant or the authorized representative, and be 

accompanied by relevant new evidence or argument not considered previously. The request should also identify the 

decision and the specific issue(s) for which reconsideration is being requested. See M.D., Docket No. 15-0811 

(issued August 20, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3 

(February 2016). 

14 See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149, 150 (2005); Angel M. 

Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990). 

15 P.R., Docket No. 14-300 (issued May 12, 2014). 
6

PSNS compensation office. An appeal request form dated October 29, 2015 was submitted 

documented by a stamp stating, “FECA RECEIVED October 30, 2015.” 

As noted above, the application for reconsideration must be received by OWCP within 

one year of the date of OWCP’s decision for which review is sought.16 The November 25, 2014 

decision issued to appellant was accompanied with FECA Appeal Rights and Appeal Request 

Form. The Appeal Request Form notified appellant that his reconsideration request must be 

signed, dated, and received by OWCP within one-calendar year of the date of the decision, state 

the grounds upon which reconsideration was being requested, and include relevant new evidence 

or legal argument not previously made.17 It instructed him to mail his reconsideration request to 

DOL DFEC Central Mailroom, P.O. Box 8300, London, KY, 40742. Appellant’s representative 

argued that the request was timely filed as evidenced by the October 30, 2015 stamp on the 

appeal request form. However, appellant’s representative confirmed that the appeal was 

submitted to the employing establishment and not OWCP as instructed. While appellant argues 

that he timely submitted his reconsideration request to the employing establishment, OWCP 

properly followed its procedures by providing appellant his appeal rights with the November 25, 

2014 decision.18 It is appellant’s responsibility to submit the proper documents and request for 

reconsideration to OWCP as designated in the FECA Appeal Rights and Appeal Request Form. 

As the record before the Board does not establish that OWCP received appellant’s 

reconsideration request by November 25, 2015, one year after the date of the last merit decision 

of record on November 25, 2014, it was untimely.19 Consequently, appellant must demonstrate 

clear evidence of error by OWCP in denying his claim.20 

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

OWCP. In support of his reconsideration request, appellant resubmitted his narrative statements 

and medical reports previously of record. In resubmitting these documents, appellant did not 

explain how this evidence was positive, precise, and explicit in manifesting on its face that 

OWCP committed an error in denying his claim for compensation. It is not apparent how 

 16 Supra note 11. 

17 20 C.F.R. § 10.606(b)(3) of OWCP’s regulations provide that an application for reconsideration must be in 

writing and set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or 

(3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 

18 All formal decisions and disallowances require appeal rights. The claims examiner (CE) must attach proper 

appeal rights and the appeal request form to both the Notice of Decision and the Letter Decision, whether the claim 

is denied in full or in part. Most decisions (initial decisions, awards, or de novo decisions) afford three avenues of 

appeal: reconsideration, hearing before the Branch of Hearings and Review (oral hearing or written review), or an 

appeal to the Employees’ Compensation Appeals Board (ECAB). As noted in 20 C.F.R. § 10.600, for each appeal 

method there are time limitations and other restrictions that may apply. FECA Procedure Manual, Part 2 -- Claims, 

Case/Disability Management, Disallowances, Chapter 2.1400.3(f) (February 2013). 

19 S.W., Docket No. 13-1618 (issued December 12, 2013). 

20 See Debra McDavid, 57 ECAB 149 (2005). 
7

resubmission of this evidence is sufficient to raise a substantial question as to the correctness of 

OWCP’s decision.21

Appellant also submitted a November 4, 2015 email correspondence from his supervisor. 

This document is insufficient to establish that OWCP committed clear evidence of error as the 

statements made do not provide support for appellant’s occupational disease claim. While 

appellant’s November 30, 2015 narrative statement detailed his employment duties and factors 

he contributed to his injury, this additional evidence is also insufficient to establish that OWCP 

erred in its denial of appellant’s claim.22 The Board notes that clear evidence of error is intended 

to represent a difficult standard. Evidence, such as a detailed well-rationalized medical report or 

detailed narrative statement, which if submitted before the merit denial might require additional 

development of the claim, is insufficient to establish clear evidence of error.23 

Appellant further submitted new medical reports dated October 2, 2014 through 

October 18, 2015 documenting treatment for his back. The underlying issue on appeal involved 

fact of injury, namely whether the occupational exposure occurred as alleged within the 

performance of duty. While the new medical evidence has some connection to his claim, the 

reports are irrelevant to the issue for which OWCP denied appellant’s claim, the failure to 

establish occupational exposure and factors of employment that he has alleged caused him 

injury.24 Therefore, these documents are insufficient to prima facie shift the weight of the 

evidence in favor of appellant and raise a substantial question as to the correctness of OWCP’s 

decision regarding fact of injury, i.e., that appellant was exposed to employment factors which 

caused him injury.25 Thus, appellant has failed to demonstrate clear evidence of error on the part 

of OWCP such that it abused its discretion in denying merit review.26

While appellant addressed his disagreement with OWCP’s denial of his claim and 

submitted additional factual details, his general allegations do not demonstrate clear evidence of 

error because his arguments do not raise a substantial question as to the correctness of OWCP’s 

decision. He did not submit the type of positive, precise, and explicit evidence that manifests on 

its face that OWCP committed an error.27 Thus, appellant did not demonstrate clear evidence of 

error in the denial of his occupational disease claim.28

 21 J.J., Docket No. 13-1363 (issued November 6, 2013). 

22 See W.R., Docket No. 09-2336 (issued June 22, 2010). 

23 FECA Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011). 

24 David J. McDonald, 50 ECAB 185 (1990). 

25 L.B., docket No. 12-1592 (issued December 5, 2012). 

26 Id. 

27 J.T., Docket No. 10-313 (issued February 24, 2010). 

28 B.B., Docket No. 08-232 (issued August 7, 2008). 
8

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and failed 

to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the March 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 28, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board