United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

T.F., Appellant 

And 

DEPARTMENT OF VETERANS AFFAIRS, 

DEPARTMENT OF DATA MANAGEMENT, 

Washington, DC, Employer 

___________________________________________

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Docket No. 14-2078 

Issued: May 15, 2015 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 30, 2014 appellant filed a timely appeal of a May 1, 2014 decision of the 

Office of Workers’ Compensation Programs (OWCP) denying his reconsideration request as it 

was untimely filed and failed to establish clear evidence of error. Because more than 180 days 

elapsed from the most recent OWCP merit decision dated September 5, 2012, to the filing of this 

appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the 

Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

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

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 6, 2012 appellant, then a 52-year-old information technology management 

worker, filed a traumatic injury claim alleging that while in the performance of duty on 

February 3, 2012, at 7:00 a.m., he was standing in the elevator, when it dropped rapidly 8 to 10 

feet. He indicated that, after the drop, the elevator stopped suddenly, and jarred his back. 

Appellant stopped work on February 4, 2012. The employing establishment checked the box 

“no” in response to whether the injury occurred in the performance of duty. It indicated that the 

injury occurred as appellant was using the elevator to report to work for his normal scheduled 

duty hours. 

Appellant submitted hospital records dated February 4, 2012. He also submitted reports 

from Dr. Matthew Bridger, a Board-certified family practitioner, dated February 8, 2012, who 

noted an injury date of February 3, 2012, appellant’s injury description as “elevator dropped 10 

feet -- injury back pain,” and found appellant totally disabled. Dr. Bridger diagnosed lumbar 

sprain and disc displacement without myelopathy. 

In a telephone call memorandum dated May 9, 2012, OWCP noted that Scott Shields, the 

employing establishment’s human resources (HR) liaison, indicated that appellant was not 

supposed to report to work until 8:00 a.m. However, there was no stated policy that appellant 

could not be on the employing establishment premises before his start time, as it was known that 

he had a long commute to work. Mr. Shields explained that, if an incident happened, it was 

supposed to be reported to the General Services Administration (GSA), “especially if an elevator 

dropped 8 to 10 feet....” He indicated that GSA would conduct routine maintenance on an 

elevator if it would have dropped more than a few inches. 

By decision dated May 11, 2012, OWCP denied appellant’s claim. It found that the 

evidence was insufficient to establish that the events of February 3, 2012 occurred as alleged. 

 In a May 15, 2012 statement, Mr. Shields noted that appellant requested a hardship 

transfer on January 9, 2012 and indicated that he had injuries from prior military service. A copy 

of the request was included. Additional evidence was also submitted. 

A May 3, 2012 statement from Jonathan Dixon, a coworker, indicated that on February 3, 

2012 appellant came in around 6:50 a.m. and stated that the elevator dropped on the 16th floor. 

He noted that the door opened and he was halfway between the 15th and 16th floor, then the door 

closed, and the elevator fell to the 15th floor, causing an injury. Mr. Dixon noted that he advised 

appellant to call GSA to report the malfunction and he believed that he heard appellant do so. In 

May 11, 2012 e-mail correspondence, Bruce Lazar, the building manager, stated that an elevator 

technician explained to him that there was no way the elevator would fall 8 to 10 feet and that it 

was unlikely that the elevator performed as appellant described. He also indicated that no one in 

GSA’s office recalled anyone coming in on February 3, 2012 to report an elevator malfunction. 

Furthermore, GSA kept a log and there was no indication that any technician was in the building 

on February 3, 2012 or that an incident occurred on that date. 

 By letter dated May 27, 2012, appellant requested reconsideration and submitted 

additional evidence. He provided an additional statement describing his injuries and noted that, 
3

despite GSA not having a record of his call, he called GSA and reported the incident to his 

supervisor at 7:20 a.m. Appellant stated that, when the injury occurred at 7:00 a.m., no other 

offices were open and there was no “personal activity” that he could be engaged in. He indicated 

that his activities from 7:00 a.m. until he began work at 8:00 a.m. were “by every policy and 

legal precedent covered under [FECA].” Appellant also indicated that the elevator may have 

dropped 12 feet, as there was approximately 14 feet between floors in his building. 

 In a September 5, 2012 decision, OWCP denied modification of its prior decision. It 

found that, while appellant was in the performance of duty, he provided insufficient evidence to 

establish that an injury occurred on February 3, 2012. OWCP found that appellant did not 

provide sufficient factual information concerning the claimed injury as there was no description 

of exactly what occurred to him inside the elevator when it suddenly stopped. It also found that 

the medical evidence was of diminished value as the submitted medical evidence did not specify 

what occurred to appellant when the elevator stopped suddenly. 

 Appellant continued to submit medical evidence, including evidence previously of 

record. New medical evidence included a September 19, 2012 discharge note from Dr. Bridger 

releasing appellant to modified work and a treatment note of the same date in which he noted 

appellant’s status and treatment history. Both documents related a chief complaint of back pain 

after an elevator dropped 10 feet. Dr. Bridger diagnosed mild diffuse degenerative disc disease 

of the thoracic spine and tiny central disc protrusion at T4-5. 

By letter dated January 20, 2014, appellant requested reconsideration and provided 

additional evidence. He explained the sequence of events with regard to the elevator incident 

and reiterated that he called GSA to report the incident. Appellant also provided records which 

supported that the elevator company arrived at 6:20 a.m. on February 3, 2012 “a few minutes 

after.” He also explained that the claim from the elevator technician was incorrect with regard to 

the elevator not being able to drop rapidly. Appellant argued that he promptly reported the 

incident and he was injured in the performance of duty. 

In a decision dated May 1, 2014, OWCP denied appellant’s request for reconsideration 

for the reason that it was not timely filed and failed to present clear evidence of error. 

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.2

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP decision for which review is sought.3

 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.4

                                                             2 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

3

 20 C.F.R. § 10.607(a). 

4 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
4

 OWCP may not deny a reconsideration request solely on the grounds that it was not 

timely filed. When a claimant’s application for review is not timely filed, it must nevertheless 

undertake a limited review to determine whether it establishes clear evidence of error. If an 

application demonstrates clear evidence of error, OWCP will reopen the case for merit review.5

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

that was decided by OWCP. The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial 

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

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

produce a contrary conclusion. 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.6

 To show clear 

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

a conflict in the 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. The Board makes 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.7

ANALYSIS 

 In its May 1, 2014 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It rendered its last merit decision on September 5, 2012. As 

appellant’s January 31, 2014 letter requesting reconsideration was submitted more than one year 

after the September 5, 2012 merit decision, it was, therefore, untimely. 

The Board also finds that appellant’s untimely request for reconsideration failed to 

demonstrate clear evidence of error. In its September 5, 2012 decision, OWCP denied 

modification of its denial of the claim finding that appellant did not adequately describe what 

occurred to him in the elevator that caused his claimed back pain. Appellant never explained 

whether he fell or hit one of the surfaces of the elevator. Thereafter, he submitted additional 

factual and medical evidence. The Board finds that the evidence submitted by appellant does not 

raise a substantial question as to the correctness of OWCP’s decision and is insufficient to 

demonstrate clear evidence of error. 

With his January 31, 2014 request for reconsideration, appellant reiterated that he 

promptly reported the incident, called GSA, and provided records which supported that the 

elevator company arrived “at 6:20 a.m.” on February 3, 2012 “a few minutes after [his] injury.” 

                                                             5 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of 

error” is intended to represent a difficult standard). 

6 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001). 

7 Id.
5

He also argued that the elevator technician was incorrect with regard to the elevator not being 

able to drop rapidly. However, it is not disputed that appellant reported the incident. OWCP 

denied the claim in part because he did not sufficiently describe his injury and also because the 

medical evidence was insufficient to show causal relationship. These arguments are not 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. 

Appellant also submitted medical evidence noting his assertion that he was injured when 

the elevator fell on February 3, 2012. However, it did not explain how the incident contributed 

to an injury. In any event, OWCP procedures 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 of a miscalculation in a schedule award). 

Evidence such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial, 

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error and would not require a review of a case.8

 The evidence submitted does not 

rise to this level. 

The Board finds that this evidence is insufficient to show clear evidence of error. 

Therefore, the Board finds that appellant has not presented clear evidence of error. 

On appeal, appellant reiterates that the elevator dropped as he alleged and that he called 

GSA. As explained, these arguments are insufficient to establish clear evidence of error. 

Appellant also submitted additional evidence. However, the Board has no jurisdiction to review 

this evidence for the first time on appeal.9

 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s request for 

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

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

9

 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). 
6

ORDER 

IT IS HEREBY ORDERED THAT the May 1, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: May 15, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board