United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Tampa, FL, Employer 

__________________________________________ 

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Docket No. 15-1031 

Issued: September 8, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 3, 2015 appellant filed a timely appeal from a nonmerit January 9, 2015 

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

elapsed from December 24, 2013, the date of the merit decision at issue, 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 appellant’s claim. 

ISSUE 

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

was not timely filed and failed to present clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 11, 2013 appellant, then a 54-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on November 12, 2012 he sustained a fractured right 

great toe when a patient in a motorized wheelchair ran over his foot. 

In a November 19, 2013 letter, OWCP advised appellant of the additional evidence 

needed to establish his claim, including medical evidence establishing the presence of the 

claimed injury, and a report from his attending physician explaining how the alleged 

November 12, 2012 incident caused the injury. It afforded him 30 days to submit such evidence. 

Appellant submitted no additional evidence prior to December 24, 2013. 

By decision dated December 24, 2013, OWCP denied appellant’s claim as he did not 

establish causal relationship. It accepted that the November 12, 2012 incident occurred as 

alleged. However, as appellant had not submitted any medical evidence in support of his claim, 

he had failed to establish that the accepted incident caused the claimed injury. 

In a letter received by OWCP on December 30, 2014, appellant requested 

reconsideration. He submitted a November 16, 2012 report from Dr. Eve N. Hanna, an attending 

physician Board-certified in occupational and emergency medicine, relating his account of right 

big toe pain after a “compression injury by wheelchair (ran over tip of foot) two weeks ago and 

again on November 12, 2012.” Dr. Hanna obtained x-rays demonstrating an intra-articular 

fracture of the right great toe with possible comminution at the interphalangeal joint. She 

provided September 6 and November 15, 2013 follow-up reports, diagnosing a nonunion fracture 

of the distal phalanx of the right great toe, calcaneal spurring in the right heel, and a synovial 

effusion in the right knee. 

By decision dated January 9, 2015, OWCP denied appellant’s request for reconsideration, 

as it was not timely filed and failed to present clear evidence of error. It found that his request 

for reconsideration was received on December 30, 2014, more than one year following the 

December 24, 2013 merit decision. OWCP further found that appellant’s request did not 

establish clear evidence of error in the December 24, 2013 decision denying his traumatic injury 

claim. 

LEGAL PRECEDENT 

Section 8128(a) of FECA2 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.3 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.4

 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP will 

not review a decision denying or terminating a benefit unless the application for review is 

 2

 5 U.S.C. § 8128(a). 

3 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

4 Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 
3

received within one year of the date of that decision.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

In those cases where requests for reconsideration are not timely filed, OWCP regulations 

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

filing limitation set forth in OWCP regulations, if the claimant’s request for reconsideration 

shows “clear evidence of error” on the part of OWCP.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 which 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 by OWCP.12 The Board must make 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.13

ANALYSIS 

In its January 9, 2015 decision, OWCP properly determined that appellant had failed to 

file a timely application for review of the December 24, 2013 merit decision. Appellant 

requested reconsideration on December 30, 2014, more than one year from the issuance of the 

December 24, 2013 merit decision. OWCP denied the request by January 9, 2015 decision as it 

was not timely filed and failed to present clear evidence of error. The remaining issue is whether 

appellant’s request demonstrated clear evidence of error in OWCP’s December 24, 2013 merit 

decision. 

 5

 20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority; 

see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990). 

6

 5 U.S.C. § 8128(a); supra note 3; Jesus D. Sanchez, supra note 4. 

7

 20 C.F.R. § 10.607(b). 

8 Supra note 3. 

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

10 Jesus D. Sanchez, supra note 4. 

11 Id. 

12 Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

13 Gregory Griffin, supra note 5. 
4

In support of his request for reconsideration, appellant submitted an appeal rights form 

dated December 23, 2014. This form does not contain additional evidence or argument to 

demonstrate error in OWCP’s January 9, 2015 decision. 

Appellant also provided medical reports from Dr. Hanna, an attending physician, Boardcertified in occupational and emergency medicine. Dr. Hanna recorded appellant’s account of 

multiple compression injuries to the right great toe after a wheelchair ran over his foot on two 

occasions. She diagnosed a nonunion fracture of the distal phalanx of the right great toe. While 

Dr. Hanna’s opinion suggests a conclusion contrary to that reached by OWCP, the reports are 

insufficient to establish clear evidence of error.14

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

OWCP in issuing its December 24, 2013 merit decision denying his claim. Appellant did not 

submit the type of positive, precise, and explicit evidence which manifests on its face that 

OWCP committed an error. The Board has found that even a detailed, well-rationalized medical 

report which, if submitted timely, would have created a conflict in medical evidence is still not 

sufficient to create clear evidence of error.15 For these reasons, OWCP’s January 9, 2015 

decision was proper under the law and facts of the case. 

On appeal, appellant contends that OWCP refused to consider his diabetes as an element 

in adjudicating his claim. This argument is not clear evidence of error. Appellant also argues 

that the Board committed improprieties in adjudicating his appeal under File No. xxxxx911.16 

However, as File No. xxxxxx911 is not before the Board on the present appeal, appellant’s 

assertions in this regard are irrelevant. 

CONCLUSION 

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

review of the merits of the claim as it was not timely filed and failed to present clear evidence of 

error. 

 14 Supra note 9. 

15 Scotty A. Linney, Jr., Docket No. 90-1234 (issued March 27, 1991). 

16 Under File No. xxxxxx911, OWCP accepted a closed fracture of the left great toe sustained on June 17, 2013, 

when a patient in a motorized wheelchair ran over appellant’s foot. By decision and order issued June 15, 2015, the 

Board affirmed OWCP’s December 18, 2014 merit decision finding that he had no continuing disability on or after 

June 6, 2014. File No. xxxxxx911 is not before the Board on the present appeal. 
5

ORDER 

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

Compensation Programs dated January 9, 2015 is affirmed. 

Issued: September 8, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board