United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, San Juan, PR, Employer 

__________________________________________ 

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Docket No. 16-0603 

Issued: May 20, 2016 

Appearances: Case Submitted on the Record

Yajhaira Rivera, for the appellant 

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 February 9, 2016 appellant, through her representative, filed a timely appeal from an 

October 7, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed between the last merit decision of OWCP, dated September 24, 

2014, and 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 merits of 

this case.2

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal appellant submitted new evidence. The Board, however, is precluded from reviewing evidence 

which was not before OWCP at the time it issued its final decision. Thus, the Board is precluded from reviewing 

this evidence on appeal. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 

59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 

54 ECAB 373 (2003). 
2

ISSUE 

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

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

On appeal appellant’s representative contends that appellant sustained a work-related 

injury. 

FACTUAL HISTORY 

On October 30, 2013 appellant, then a 56-year-old program support clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on September 24, 2013 she hurt her neck, back, 

and shoulders at work. 

The employing establishment controverted the claim as appellant did not report her injury 

within 30 days and there was conflicting information regarding her injury. 

By letter dated November 12, 2013, OWCP notified appellant of the deficiencies of her 

claim and afforded her 30 days to submit medical and factual evidence. 

In an undated narrative statement, received on November 15, 2013, appellant described 

the alleged September 24, 2013 incident. She reported that between 7:15 a.m. and 8:00 a.m. on 

that date she placed an amplifier in a cabinet and when she proceeded to close the second door of 

the cabinet, the door came down on top of her so fast that she fell down. Appellant immediately 

placed the heavy door back onto the cabinet. She then informed Max Velazquez, Acting Chief 

of Medical Media Service, about the incident, who told appellant to talk to Maria Olivero, Chief 

of Medical Media Service, but she was not in the office at that time. Appellant took Tylenol to 

ease her pain, but the pain did not stop. She continued to work the whole week with pain and 

discomfort. On September 30, 2013 appellant told Mr. Velazquez about her continued pain and 

discomfort. Mr. Velazquez responded by giving her a form to present to the employee health 

unit. Appellant stated that she did not go to the health unit on that day. She went a few days 

later and was treated by Dr. Angel Green, a Board-certified internist, who recommended that she 

see an outside physician. Appellant saw a physician and was advised to obtain a sonogram of 

her shoulders and a magnetic resonance imaging scan of her back. 

In an employing establishment report of contact dated October 29, 2013, Mr. Velazquez 

related that on the morning of September 30, 2013 appellant requested a form to see an employee 

health physician regarding her right shoulder pain which had resulted from an injury she 

allegedly sustained during the week of September 24 to 27, 2013 due to a loose cabinet door. He 

prepared the form and provided it to her. Mr. Velazquez noted that appellant did not return the 

form report indicating that she had visited an employee health physician. 

An employing establishment incident report dated October 30, 2013 described the 

September 24, 2013 incident. The form reported that appellant injured both shoulders when the 

cabinet door fell while opening a cabinet. 

In an undated statement, Ms. Olivero provided a chronology of events regarding 

appellant’s alleged injury. She reported that appellant initially informed her of an October 8, 
3

2013 injury and then later informed her that the correct date of injury was September 24, 2013. 

Mr. Velazquez informed Ms. Olivero that he had given appellant a form authorizing her visit to 

the employee health unit on September 30, 2013 and that she did not go to the health unit during 

that week. Ms. Olivero noted that appellant provided a copy of a work order dated 

September 24, 2013 to fix a cabinet door. 

Appellant submitted medical reports and diagnostic test results dated October 22 to 

November 8, 2013 and undated reports, which addressed her bilateral shoulder, cervical, and 

lumbar conditions, disability for work, and medical treatment. She underwent surgery on 

November 8, 2013 to repair a rotator cuff tear of the right shoulder. 

In a December 16, 2013 decision, OWCP denied appellant’s claim as the medical 

evidence did not establish that she sustained a medical condition causally related to the accepted 

work incident of September 24, 2013. 

On December 27, 2013 appellant requested a telephone hearing with an OWCP hearing 

representative. She submitted medical reports dated November 1, 2013 to July 25, 2014, which 

addressed her bilateral shoulder and elbow, cervical, and lumbar conditions, disability for work, 

and medical treatment. Diagnostic test results dated June 20 and 30, and July 31, 2014 addressed 

her bilateral upper and lower extremity conditions. 

In a September 24, 2014 decision, an OWCP hearing representative affirmed the 

December 16, 2013 denial decision. She found that the medical evidence was insufficient to 

establish that appellant sustained a medical condition causally related to the September 24, 2013 

accepted employment incident. 

On October 5, 2015 appellant, through her representative, requested reconsideration of 

the September 24, 2014 decision. In an undated letter, she further described the September 24, 

2013 employment incident and explained the delay in filing her traumatic injury claim and 

seeking medical treatment. 

In a June 20, 2014 report, Dr. Juan Echeandia, a family practitioner, reviewed appellant’s 

medical records, noted her complaints of pain in the cervical, lumbar, and shoulder regions, and 

reported findings on physical examination. He diagnosed status postoperative right shoulder 

arthroscopy, cervical and lumbar spine disease, bulging discs at C3-C4, C4-C5, C5-C6, L4-L5, 

and L5-S1, and tendinosis supraspinatus tendon and bursitis of the right shoulder. 

In an October 7, 2015 decision, OWCP denied appellant’s request for reconsideration 

because it was untimely filed and failed to demonstrate clear evidence of error on the part of 

OWCP. 

LEGAL PRECEDENT 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is received within one year of the date of that decision.3 

 3

 20 C.F.R. § 10.607(a). 
4

Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding 

the one-year filing limitation set forth under section 10.607 of OWCP regulations, if the 

claimant’s application for review shows clear evidence of error on the part of OWCP.4 In this 

regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the 

prior evidence of record.5

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

issue which 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 to merely 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. To demonstrate 

clear evidence of error, the evidence submitted 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.6

OWCP procedures note 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 that a schedule award was miscalculated). 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.7

 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.8

ANALYSIS 

The Board finds that OWCP properly denied appellant’s request for a merit review of her 

claim. OWCP regulations9

 and procedures10 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the original OWCP decision. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues,11

 4 Id. at § 10.607(b); Cresenciano Martinez, 51 ECAB 322 (2000). 

5 See Alberta Dukes, 56 ECAB 247 (2005). 

6 Robert G. Burns, 57 ECAB 657 (2006). 

7

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

James R. Mirra, 56 ECAB 738 (2005). 

8 Nancy Marcano, 50 ECAB 110 (1998). 

9

 20 C.F.R. § 10.607(a); see Alberta Dukes, supra note 5. 

10 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.4 (October 2011); see Veletta C. Coleman, 

48 ECAB 367 (1997). 

11 See Robert F. Stone, 57 ECAB 292 (2005). 
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including any merit decision by the Board and any merit decision following action by the 

Board.12 The most recent merit decision was an OWCP hearing representative’s September 24, 

2014 decision affirming the denial of appellant’s traumatic injury claim as she had not submitted 

sufficient medical evidence to establish a medical condition causally related to the accepted work 

incident. Appellant had one year from the date of this decision to make a timely request for 

reconsideration. Her request for reconsideration was received by OWCP on October 5, 2015.13 

As her request for reconsideration was received more than one year after the September 24, 2014 

merit decision, it was untimely filed. Consequently, appellant must demonstrate clear evidence 

of error by OWCP in the denial of her traumatic injury claim.14

The Board finds that the arguments and evidence submitted by appellant in support of her 

request for reconsideration do not raise a substantial question as to the correctness of OWCP’s 

hearing representative’s September 24, 2014 decision which affirmed OWCP’s December 16, 

2013 finding that the medical evidence did not establish that the September 24, 2013 

employment incident caused an injury. 

In her request for reconsideration, appellant described the September 24, 2013 

employment incident and explained the delay in filing her traumatic injury claim and seeking 

medical treatment. The Board notes, however, that the factual occurrence of the September 24, 

2013 work incident is not in dispute. The claim was denied because the medical evidence did 

not establish that the September 24, 2013 incident caused an injury. 

Appellant submitted Dr. Echeandia’s June 20, 2014 report. Dr. Echeandia diagnosed 

status postoperative right shoulder arthroscopy, cervical and lumbar spine disease, bulging discs 

at C3-C4, C4-C5, C5-C6, L4-L5, and L5-S1, and tendinosis supraspinatus tendon and bursitis of 

the right shoulder. While Dr. Echeandia’s report provided appellant’s diagnoses, it did not 

demonstrate clear evidence of error.15 As noted, clear evidence of error is intended to represent a 

difficult standard. The submission of a detailed, well-rationalized medical report which, if 

submitted before the merit decision was issued, would have created a conflict in medical opinion 

requiring further development, is not sufficient to establish clear evidence of error.16 The Board 

makes an independent determination of whether a claimant has submitted clear evidence of error 

on the part of OWCP.17

 12 See E.C., Docket No. 13-1937 (issued February 6, 2014); Federal (FECA) Procedure Manual, supra note 7 at 

Chapter 2.1602.4(a) (October 2011). 

13 See 20 C.F.R. § 10.607(a) (the reconsideration request must be received within one year of OWCP’s decision 

for which review is sought). 

14 Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 

15 See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the 

claim was denied is insufficient to demonstrate clear evidence of error). 

16 Supra note 7. 

17 Supra note 8. 
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On appeal appellant’s representative contends that appellant sustained a work-related 

injury. As previously noted, the Board does not have jurisdiction over the merits of the claim. 

The only issue on appeal is whether OWCP properly denied appellant’s request for 

reconsideration, as untimely filed and failing to demonstrate clear evidence of error. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the October 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 20, 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