United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Baltimore, MD, Employer 

__________________________________________ 

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Docket No. 17-0245 

Issued: August 3, 2017 

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 November 14, 2016 appellant filed a timely appeal from an August 31, 2016 nonmerit 

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

elapsed from the last merit decision dated September 11, 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

 Appellant requested an oral argument. By decision dated May 8, 2017, the Board denied, after exercising its 

discretion, appellant’s request for an oral argument, finding that appellant’s arguments on appeal could adequately 

be addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket 

No. 17-0245 (issued May 8, 2017). Accordingly, the Board, in its discretion, has decided the appeal on the record. 
2

FACTUAL HISTORY 

On July 23, 2014 appellant, then a 44-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on June 19, 2014 he sustained a left knee injury when his coworker pushed a 

stretcher against him and pinned him against a wall. The claim form did not indicate whether 

appellant stopped work. 

Appellant was initially treated in the employing establishment’s employee health unit on 

July 22, 2014 by Audrey Rice, a physician assistant. She described a “June 16, 2014” 

employment incident and related that appellant continued to work even though he experienced 

knee stiffness and pain. Ms. Rice reported no swelling, crepitus, or tenderness and full range of 

motion of appellant’s left knee. She diagnosed status post left knee soft tissue injury. Ms. Rice 

provided a July 22, 2014 duty status report (Form CA-17), which indicated that appellant could 

return to work as tolerated. 

On July 23, 2014 appellant was offered a temporary light-duty assignment, which he 

accepted on July 28, 2014. 

The employing establishment provided a July 25, 2014 memorandum which indicated 

that continuation of pay (COP) was not authorized because appellant did not file his claim within 

30 days of the date of injury. It also provided a request for examination and/or treatment of jobrelated injury form wherein appellant noted that he elected to receive medical treatment from his 

private physician. 

By letter dated August 7, 2014, OWCP advised appellant that the evidence submitted was 

insufficient to establish his claim. It requested that he respond to the attached questionnaire in 

order to substantiate the factual element of his claim and submit additional medical evidence to 

establish a diagnosed medical condition causally related to the alleged June 19, 2014 

employment incident. Appellant was afforded 30 days to submit the additional evidence. 

In reports dated August 7 and 21, 2014, Dr. Maria Adelaida Martin, a family practitioner, 

related that appellant still complained of left knee pain after a workplace accident. She reported 

tenderness of the patellofemoral tendon of the left knee and diagnosed soft tissue injury, left knee 

pain, and left knee medial collateral ligament strain. Dr. Martin provided CA-17 forms and work 

status notes, which authorized appellant to return to work with restrictions of no lifting more than 

20 pounds. 

On August 25, 2014 OWCP received appellant’s response to its development letter. 

Appellant explained that he did not file his claim within 30 days of the date of injury because he 

was a nurse, so he treated himself with pain medication, elevation, and warm and cold 

compresses. He noted that he reported the injury to his manager on June 19, 2014. Appellant 

related that after a few weeks, the symptoms continued to come and go and worsened with 

movement of patients, beds, and medication carts. He explained that he then decided to file a 

claim because he suspected there was more damage than he had initially thought and because his 

manager encouraged him to file since he was not receiving relief from his self-treatment. 

Appellant indicated that he did not sustain any other left knee injury and did not have any similar 

preexisting left knee conditions, disability, or symptoms. 
3

On September 4, 2014 appellant returned to full duty. 

By decision dated September 11, 2014, OWCP accepted appellant’s claim for left knee 

medial collateral ligament sprain. In a separate September 11, 2014 decision, it denied 

appellant’s claim for COP benefits because he did not file his traumatic injury claim within 30 

days of the June 19, 2014 employment injury. 

On December 10, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. In a decision dated May 4, 2016, an OWCP hearing representative denied 

appellant’s request for a hearing. He determined that, because appellant did not file his request 

within 30 days of the most recent OWCP decision, he was not entitled to an oral hearing or a 

review of the written record as a matter of right. The hearing representative further exercised his 

discretion and denied appellant’s request for a hearing as he found that the issue in the case could 

be addressed equally well on reconsideration. 

On June 3, 2016 appellant requested reconsideration of the September 11, 2014 decision. 

Appellant submitted a June 3, 2016 e-mail from A.H., a nurse manager at the employing 

establishment. A.H. reported that appellant notified her of the June 19, 2014 employment injury, 

but she was not able to enter the injury in the system because she was unable to log into the 

system. She related that on July 22, 2014 appellant informed her that he was still having 

problems with his knee and wanted to file a claim. 

By decision dated August 31, 2016, OWCP denied appellant’s reconsideration request. It 

found that the June 3, 2016 reconsideration request was untimely filed and failed to demonstrate 

clear evidence that OWCP’s September 11, 2014 decision was in error. 

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to 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 

timely.5

 In order to be timely, a request for reconsideration must be received by OWCP within 

one year of the date of OWCP’s merit decision for which review is sought. Timeliness is 

determined by the document receipt date of the reconsideration request.6

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

4 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

5

 20 CFR § 10.607(a); 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. 5 USC § 8128(a); Leon D. 

Faidley, Jr., 41 ECAB 104, 111 (1989 

6 Id. at § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(February 2016). 
4

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. It may consider an untimely application for reconsideration if the evidence 

or argument contained in the reconsideration request demonstrates clear evidence of error on the 

part of OWCP.7

 In this regard, OWCP will conduct a limited review of how the newly submitted 

evidence bears on the prior evidence of record.8

 

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.9 Evidence that does not raise a 

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

demonstrate 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 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.12 The Board 

has held that even a report such as a detailed, well-rationalized medical report which, if 

submitted before the denial was issued, would have created a conflict in medical evidence 

requiring further development is insufficient to demonstrate clear evidence of error.13 

The Board makes an independent determination of whether a claimant has submitted 

clear evidence of error on the part of OWCP such that it abused its discretion in denying merit 

review in the face of such evidence.14 

ANALYSIS 

OWCP’s last merit decision is dated September 11, 2014. It denied appellant’s claim for 

COP. On June 3, 2016 OWCP received appellant’s request for reconsideration. In a decision 

dated August 31, 2016, it denied appellant’s request for reconsideration because it 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. Timeliness is determined by the document receipt date of the 

reconsideration request (the received date in the Integrated Federal Employees’ Compensation 

 7 See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

8 See id. at § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992). 

9

 20 CFR § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

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

11 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

13 A.R., Docket No. 15-1598 (issued December 7, 2015). 

14 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993). 
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System (iFECS)).15 OWCP accepted appellant’s traumatic injury claim, but denied COP by 

decision dated September 11, 2014. It did not, however, receive appellant’s latest request for 

reconsideration until June 3, 2016, which was well beyond the one-year time limit. As such, 

appellant must demonstrate clear evidence of error by OWCP in denying his claim for COP.16 

The Board has reviewed the record and finds that the evidence submitted in the untimely 

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

September 11, 2014 decision and is therefore insufficient to demonstrate clear evidence of error. 

In its most recent merit decision, OWCP denied appellant’s COP claim because he did 

not file his traumatic injury claim within 30 days of the June 19, 2014 employment injury. 

Along with his most recent reconsideration request, appellant provided a June 3, 2016 e-mail 

from A.H., a nurse manager, who related that appellant notified her of the June 19, 2014 

employment injury, but explained that she was not able to input the injury into the system 

because she could not log into the system. Appellant did not file his Form CA-1 until 

July 31, 2014. Although the e-mail indicated that appellant notified the employing establishment 

about his job-related injury, the Board has found that there is no provision in FECA for excusing 

a late filing for COP.17 Accordingly, it does not raise a substantial question as to the correctness 

of OWCP’s decision and is insufficient to demonstrate clear evidence of error by OWCP with 

respect to the denial of appellant’s COP. 

The Board has found that the term “clear evidence of error” is intended to represent a 

difficult standard.18 It is not enough merely to show that the evidence could be construed so as 

to produce a contrary conclusion. 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.19

The Board finds that appellant has failed to support his reconsideration request with 

evidence or argument demonstrating that OWCP’s September 11, 2014 decision denying 

appellant’s COP was clearly erroneous. His request was insufficient to raise a substantial 

question as to the correctness of OWCP’s September 11, 2014 decision or shift the weight of the 

evidence in his favor. 

CONCLUSION 

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

untimely filed and failing to demonstrate clear evidence of error. 

 15 Supra note 6 at Chapter 2.1602.4(b) (February 2016). 

16 Supra note 7; Debra McDavid, 57 ECAB 149 (2005). 

17 See L.S., Docket No. 16-0088 (issued June 10, 2016). 

18 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5(a) (October 2011). 

19 Supra note 12. 
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ORDER 

IT IS HEREBY ORDERED THAT the August 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 3, 2017 

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