United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

MINNESOTA AIR NATIONAL GUARD, 

Duluth, MN, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1720 

Issued: April 17, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 24, 2016 appellant filed a timely appeal from a March 17, 2016 nonmerit 

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

elapsed from the most recent merit decision, dated December 18, 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 to review the merits of appellant’s 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 has submitted new evidence on appeal, consisting of a United States Postal 

Service tracking receipt. However, the Board cannot consider this evidence as its review of the case is limited to the 

evidence of record which was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c); see Steven S. 

Saleh, 55 ECAB 169 (2003). 
2

On appeal appellant argues that his request for reconsideration was sent in a timely 

manner. 

FACTUAL HISTORY 

On September 15, 2000 appellant, then a 43-year-old vehicle maintenance technician, 

filed an occupational disease claim (Form CA-2) alleging that factors of his federal employment 

since 1996 had caused severe tendinitis and swelling in both elbows and forearms. By decision 

dated April 17, 2001, OWCP accepted his claim for bilateral medial and lateral epicondylitis. 

Appellant initially received compensation benefits on the supplemental roll. As of May 18, 

2003, he received benefits on the periodic rolls. 

Based upon a May 29, 2007 report from appellant’s treating physician, Dr. Leo Hise, a 

Board-certified orthopedic surgeon, which provided work restrictions, appellant was referred for 

vocational rehabilitation services. Appellant was provided rehabilitation and placement 

assistance. On February 24, 2009 OWCP advised appellant that it proposed to reduce his 

compensation benefits as the selected positon of Supervisor, Engine Repair, was medically and 

vocationally suitable and represented his wage-earning capacity. By decision dated March 25, 

2009, OWCP finalized the proposed reduction of appellant’s compensation benefits. 

On April 10, 2009 appellant requested a review of the written record by an OWCP 

hearing representative. By decision dated December 17, 2009, the OWCP hearing representative 

reversed the March 25, 2009 reduction of appellant’s benefits, finding that OWCP had not 

established that the position of Engine Repair Supervisor existed in sufficient quantities to be 

reasonably available. 

On May 9, 2012 OWCP proposed a reduction of appellant’s compensation benefits based 

upon his capacity to earn wages in the selected positon of Automobile Repair-Service Estimator. 

On July 11, 2012 OWCP finalized a proposed reduction of compensation, based upon 

appellant’s completion of vocational rehabilitation and the rehabilitation counselor’s finding that 

the position of Automobile Repair-Service Estimator was medically and vocationally suitable, 

and fairly and reasonably represented his wage earning capacity. 

On August 6, 2012 appellant requested a review of the written record by an OWCP 

hearing representative. 

By decision dated November 28, 2012, a hearing representative affirmed OWCP’s 

July 11, 2012 decision. She noted that appellant had developed new conditions since his workrelated injury. The hearing representative noted new conditions occurring after the work injury 

were not to be considered in evaluating the suitability of a selected position, and that appellant 

had not presented medical evidence sufficient to establish that he was unable to work the 

selected positions, due to preexisting or accepted conditions. She further noted that the 

rehabilitation counselor reasonably determined that appellant had sufficient skills for the selected 

position, and that the position was reasonably available. 
3

On January 3, 2013 appellant requested reconsideration. He argued that he was in worse 

physical condition than he was when he stopped work and stated that he would undergo a 

functional capacity evaluation (FCE). 

By decision dated April 4 2013, OWCP reviewed the merits of appellant’s claim and 

affirmed the November 28, 2012 decision. It noted that there was no evidence of a material 

worsening of his conditions attributable to his federal employment. 

On December 2, 2013 appellant again requested reconsideration. He enclosed several 

medical reports from his treating physicians along with physical therapy notes. 

By decision dated February 21, 2014 OWCP reviewed the merits of appellant’s claim and 

affirmed the April 4, 2013 decision. It noted that the reports received had referenced bilateral 

shoulder pain along with his accepted conditions, which OWCP found to be insufficient to 

establish that he was incapable of performing the selected position. 

On July 8, 2014 appellant again requested reconsideration. He enclosed an FCE 

evaluation with his request, along with several reports and a narrative statement. 

By decision dated December 18, 2014 OWCP reviewed the merits of appellant’s claim 

and affirmed the February 21, 2014 decision. It noted that appellant’s contention that the 

vocational rehabilitation efforts had been inadequate had already been addressed in an earlier 

decision. OWCP further noted that the FCE indicated that he was capable of working within the 

physical requirements of the selected position. 

Appellant continued to resubmit medical evidence previously of record. On 

November 16, 2015 OWCP received a November 9, 2015 report from Dr. Michael Mollen, a 

family practitioner, who related that appellant had requested that he prepare a note regarding the 

current status of appellant’s bilateral chronic epicondylitis and repetitive strain injury. 

Dr. Mollen related that he examined appellant last week, but had known appellant for many 

years from his previous practice. He further noted that he had reviewed appellant’s FCE of 

June 4, 2014 and, based on his current examination, he concluded that appellant’s status was 

unchanged. 

On December 21, 2015 appellant again requested reconsideration. With his request, 

appellant enclosed a narrative statement, noting that he had recently undergone knee replacement 

surgery, that the symptoms in his knees had prevented him from undertaking daily activities, and 

that he knew the “cut-off time” for reconsideration was close. 

By decision dated March 17, 2016, OWCP denied appellant’s request for reconsideration 

as it was untimely filed and failed to demonstrate clear evidence of error. OWCP noted that the 

decision for which appellant requested reconsideration was dated December 18, 2014, but that it 

had not received his request for reconsideration until December 21, 2015. 

LEGAL PRECEDENT 

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

an application for reconsideration must be received by OWCP within one year of the date of 
4

OWCP’s decision for which review is sought.3

 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.4

OWCP may not deny an application for review solely on the grounds that the application 

was not timely filed. When an application for review is not timely filed, it must nevertheless 

undertake a limited review to determine whether the application establishes clear evidence of 

error.5 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if 

the claimant’s application for review shows clear evidence of error on the part of OWCP.6

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

which was decided by OWCP.7

 The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error.8

 Evidence which does not raise a 

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

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.10 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.11

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.12 In order to establish clear evidence of error, the evidence 

submitted must not only be of sufficient probative value to create a conflict in medical opinion or 

establish a clear procedural error, but must be of sufficient probative value to prima facie shift 

 3

 20 C.F.R. § 10.607(a). 

4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

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

6 Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) 

(February 2016). OWCP’s procedure further provides, “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 a mistake. For 

example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing 

that the claimant had a dependent, but the award was not paid at the augmented rate.” 

7 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

8

 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

9 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

10 See Leona N. Travis, supra note 8. 

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

12 See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993). 
5

the weight of the evidence in favor of the claimant and raise a substantial question as to the 

correctness of OWCP’s decision.13 

ANALYSIS 

In its March 17, 2016 decision, OWCP properly determined that appellant failed to file a 

timely application for review. Although the request was dated December 15, 2014, OWCP 

regulations provide that the request must be received within one-year time of the date of the 

original OWCP decision.14 OWCP’s imaging system recorded the receipt of appellant’s request 

on December 21, 2015, which was more than one year after OWCP’s December 18, 2014 

decision. Therefore, appellant must demonstrate clear evidence of error. 

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

OWCP in its wage-earning capacity decision. He did not submit the type of positive, precise, 

and explicit evidence manifesting on its face that OWCP committed an error.15

Following the December 18, 2014 merit decision, appellant continued to resubmit 

medical evidence previously of record. He also submitted the November 9, 2015 report from 

Dr. Mollen wherein he related that appellant’s status was unchanged. The medical reports 

submitted on reconsideration were duplicative of reports previously of record. Appellant has not 

explained how the resubmission of these reports raise a substantial question concerning the 

correctness of OWCP’s decision. None of these medical reports were sufficient to shift the 

weight of the evidence in appellant’s favor and do not demonstrate clear evidence of error.16 The 

Board notes that clear evidence of error is intended to represent a difficult standard. Even the 

submission of 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.17

With his December 21, 2015 request for reconsideration, appellant also enclosed a 

narrative statement. He noted that he had recently undergone knee replacement surgery, that the 

symptoms in his knees had prevented him from undertaking daily activities, and that he knew the 

“cut-off time” for reconsideration was close. The basis for appellant’s reduction of 

compensation was appellant’s completion of vocational rehabilitation and the counselor’s finding 

of positions that were medically and vocationally suitable and fairly and reasonably represented 

his wage earning capacity. 

 13 See Velvetta C. Coleman, 48 ECAB 367, 370 (1997). 

14 20 C.F.R. § 10.607(a). 

15 Supra note 6. 

16 C.W., Docket No. 16-1478 (issued December 23, 2016); see also G.B., Docket No. 16-0319 (issued 

April 6, 2016). 

17 D.G., 59 ECAB 455 (2008). 
6

While appellant addressed his disagreement with OWCP’s decision and submitted 

additional factual details, his general allegations do not demonstrate clear evidence of error 

because his arguments do not raise a substantial question as to the correctness of OWCP’s 

decision. He did not submit the type of positive, precise, and explicit evidence that manifests on 

its face that OWCP committed an error.18

For these reasons, the evidence submitted by appellant does not raise a substantial 

question concerning the correctness of OWCP’s December 18, 2014 decision, and OWCP 

properly determined that appellant did not demonstrate clear evidence of error in that 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. 

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: April 17, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 See A.S., Docket No. 16-0902 (issued September 28, 2016).