United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

U.S. AIR FORCE, AIR FORCE RESERVE 

OFFICER TRAINING CORPS, Champaign, IL, 

Employer 

__________________________________________ 

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Docket No. 16-1240 

Issued: December 1, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 25, 2016 appellant filed a timely appeal from a February 17, 2016 nonmerit 

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

elapsed from the last merit decision of August 13, 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 over the merits of this claim.2 

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. 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the February 17, 2016 decision. Since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 

ECAB 126 (2005). 
2

FACTUAL HISTORY 

On June 11, 2014 appellant, then a 20-year-old Air Force Reserve Officer Training Corps 

(ROTC) instructor, filed a traumatic injury claim (Form CA-1) alleging that on June 10, 2014 

she experienced pain in her upper right side under the ribs while attending officer training 

school. 

In a June 11, 2014 narrative statement a field training commander explained that during 

combative class on June 10, 2014 appellant complained of pain in her right side just below the 

rib cage after a drill. He related that appellant went to the emergency room and was treated for 

potential issues with her gallbladder. The commander opined that appellant was injured “in the 

line of duty.” 

In June 10, 2014 emergency room records, Dr. Steven G. O’Mara, an osteopathic 

physician specializing in emergency medicine, noted appellant’s complaints of abdominal pain 

and nausea. He indicated that a review of appellant’s systems was negative and physical 

examination revealed tenderness of appellant’s abdomen. Dr. O’Mara indicated that appellant 

sustained acute abdominal pain and biliary colic. He related that he did not believe this 

condition was caused or aggravated by appellant’s employment. In a June 11, 2014 attending 

physician’s report (Form CA-20), he noted diagnosis of biliary colic and marked that appellant 

could return to work. 

A June 10, 2014 diagnostic examination of the abdomen by Dr. Donald H. Dahlene, a 

Board-certified diagnostic radiologist, revealed no evidence of an intestinal obstruction or 

perforation and no soft tissue mass or radiopaque calculus. Another diagnostic examination by 

Dr. George Wakefield, III, a Board-certified diagnostic radiologist, demonstrated a partially 

contracted gallbladder. 

In a June 11, 2014 hepatobiliary gallbladder study, Dr. Gary Wayne Scott, a Boardcertified diagnostic radiologist, observed homogenous activity in the liver and one peak intensity 

of the gallbladder. 

By letter dated July 8, 2014, OWCP advised appellant that the evidence submitted was 

insufficient to establish her claim. It provided appellant with a questionnaire for completion in 

order to substantiate that the June 10, 2014 incident occurred as alleged and submit medical 

evidence to establish that she sustained a diagnosed condition causally related to the employment 

incident. No response was received. 

OWCP denied appellant’s claim in a decision dated August 13, 2014. It found that the 

evidence was insufficient to establish that the June 10, 2014 incident occurred as alleged because 

appellant failed to respond to the questionnaire. OWCP also determined that the medical 

evidence failed to establish that she sustained a medical condition as a result of the described 

incident. 

On November 20, 2015 OWCP received a narrative letter from the employing 

establishment which related that it had submitted this claim on appellant’s behalf. It was also 

noted that the employing establishment individual assisting with the claim missed the 
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questionnaire requesting further information from appellant. Therefore appellant’s answers to 

the questionnaire were now being submitted. 

In an e-mail dated November 18, 2015, appellant responded to OWCP’s questionnaire for 

completion. She noted that she did not have any similar disability of symptoms before the 

injury. Appellant explained that she believed the biliary colic was due to her work duties 

because the food that was prepared at the dining facility was not what her typical diet consisted 

of prior to the training. She believed that after a few weeks of consuming that food it affected 

her gallbladder and caused biliary colic. 

In a December 2, 2015 telephone call memorandum (Form CA-110), OWCP informed 

the employing establishment that appellant’s case could be reopened based upon her statement 

received on November 20, 2015. It advised that appellant should utilize the appeal rights 

previously provided. 

On December 9, 2015 OWCP received appellant’s request for reconsideration. Appellant 

resubmitted the November 18, 2015 e-mail, which included her responses to OWCP’s 

questionnaire for completion. 

By decision dated February 17, 2016, OWCP denied appellant’s December 9, 2015 

reconsideration request. It found that because appellant’s December 9, 2015 reconsideration 

request was not received within one year of the most recent August 13, 2014 merit decision, it 

was untimely filed. OWCP further determined that appellant’s reconsideration request failed to 

demonstrate clear evidence that OWCP’s decision was in error. 

LEGAL PRECEDENT 

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

claimant’s application for reconsideration review must be received by OWCP within one year of 

the date of OWCP’s decision for which review is sought.3 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.4

 

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 nonetheless 

undertake a limited review of the evidence previously of record to determine whether the new 

evidence demonstrates clear evidence of error on the part of OWCP in its most recent merit 

decision.5

 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.6 The Board makes an independent determination 

 3

 20 C.F.R. § 10.607(a). 

4

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

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

6 Nelson T. Thompson, 43 ECAB 919 (1992). 
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of whether a claimant has submitted clear evidence of error on the part of OWCP such that it 

improperly denied merit review in the face of such evidence.7

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.8

 Evidence that does not raise a substantial 

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

evidence of error.9

 It is not enough merely to show that the evidence could be construed so as to 

produce a contrary conclusion. 

ANALYSIS 

The only decision before the Board on appeal is the February 17, 2016 nonmerit OWCP 

decision, which declined to reopen appellant’s case on the merits because her request was 

untimely filed and failed to demonstrate clear evidence of error. The Board finds that OWCP 

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

dated August 13, 2014, OWCP denied appellant’s traumatic injury claim. It received appellant’s 

appeal request form, which indicated that she was requesting reconsideration, on December 9, 

2015, which was outside the one-year time limit.10 Consequently, appellant must demonstrate 

clear evidence of error by OWCP in denying her claim for compensation.11 

The Board also finds that appellant has not demonstrated clear evidence of error by 

OWCP. In its August 13, 2014 decision, OWCP denied appellant’s traumatic injury claim 

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

insufficient to demonstrate that the June 10, 2014 incident occurred as alleged as appellant had 

not responded to the questionnaire for completion before OWCP issued its denial decision. 

OWCP also determined that the medical evidence failed to establish a diagnosed condition 

causally related to the employment incident. 

Along with the December 9, 2015 reconsideration request, appellant submitted her 

answers to the questionnaire for completion and a narrative statement from the employing 

establishment which indicated that appellant’s questionnaire answers had not been properly 

forwarded. The Board finds, however, that these statements do not demonstrate clear evidence 

of error on the part of OWCP nor do they raise a substantial question as to the correctness of 

OWCP’s decision. Appellant merely asserted the merits of her claim that the June 10, 2014 

 7 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993). 

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

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

10 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(4) (October 2011). 

For decisions issued on or after August 29, 2011, 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 its decision for which 

review is sought. 

11 20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005). 
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incident occurred as she described and explained why OWCP failed to receive her answers to the 

questionnaire for completion. 

To demonstrate 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.12 The evidence of record in this case does not, 

on its face, establish that OWCP committed an error in denying appellant’s claim. The evidence 

of record also does not raise a substantial question as to whether appellant’s diagnosed biliary 

colic was caused by the employment incident alleged. 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 demonstrate clear evidence of error. 

On appeal appellant requests reversal of OWCP’s decision because she did not personally 

receive its correspondence regarding notification of the discrepancies in her claim. She 

explained that she was a college student participating in Air Force ROTC and that all 

correspondence from OWCP was sent to the AFROTC Detachment. The evidence of record 

establishes however that OWCP’s correspondence was sent to appellant’s last known address, 

which was provided on the claim form. In the absence of evidence to the contrary, it is presumed 

that a notice mailed to an addressee in the ordinary course of business was received by the 

addressee. The appearance of a properly addressed copy in the case record, together with the 

mailing custom or practice of the sender, will raise a presumption that the original was received 

by the addressee. This is known as the mailbox rule.13

Thus, appellant has failed to meet her burden of proof to establish that her untimely 

December 9, 2015 reconsideration request demonstrated clear evidence of error in OWCP’s 

August 13, 2014 merit decision. 

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. 

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

13 See S.M., Docket No. 15-1303 (issued August 3, 2016). 
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ORDER 

IT IS HEREBY ORDERED THAT the February 17, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board