United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.L., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Louisville, KY, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 17-1307

Issued: November 9, 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 May 30, 2017 appellant filed a timely appeal from a December 2, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated November 6, 2015, 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 the claim.

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.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 25, 2015 appellant, then a 58-year-old supervisory program analyst, filed a 

traumatic injury claim (Form CA-1) alleging that at 6:00 p.m. on Thursday, February 19, 2015, 

she sustained injury to her head, jaw, neck, right wrist, right hand/fingers, and right hip due to a 

fall at work. She indicated that she was walking cautiously to her car after work due to frozen 

snow and, the next thing she knew, she was lying flat on her back on the pavement. Appellant

noted that her head hurt and she was unable to get up. She stopped work on February 20, 2015

and returned to full-time, regular-duty work on February 24, 2015.

2

On the same Form CA-1, appellant’s immediate supervisor indicated that appellant’s 

regular work hours were 9:00 a.m. to 5:30 p.m., Monday through Friday. She indicated that 

appellant was not in the performance of duty at the time of her claimed injury on February 19, 

2015 because she was walking to her car after her shift was completed. In the section of the 

form regarding controversion of continuation of pay by the employing establishment, the 

supervisor asserted that the claimed disability was not caused by a traumatic injury and was not 

work related. She advised that the employing establishment controverted the claim because fact 

of injury, performance of duty, and causal relationship had not been established. 

Appellant submitted a report of work status detailing her return to work and the first page 

of a form entitled Authorization for Examination and/or Treatment (Form CA-16). 

In a March 4, 2015 letter, OWCP requested that appellant submit additional factual and 

medical evidence in support of her claim. It requested that she complete and return an enclosed 

development questionnaire which posed various questions about the factual circumstances of her 

February 19, 2015 fall, including whether she was performing assigned duties when the injury 

occurred, whether the fall occurred on the employing establishment premises, and whether the 

fall occurred at parking facilities that were owned, controlled, or managed by the employing 

establishment.

Appellant submitted a completed OWCP development questionnaire, which she signed 

on March 17, 2015. She indicated that on February 19, 2015 she fell in a parking lot which was 

owned, controlled, and managed by the employing establishment, and she asserted that she was 

required to park in the lot. Appellant noted that on February 19, 2015 she had completed her 

daily tasks and was walking to her car to go home when she slipped on ice and fell.3

In a March 19, 2015 letter, a human resources assistant for the employing establishment 

indicated that the parking lot where appellant fell on February 19, 2015 was owned and 

maintained by the employing establishment. She indicated that appellant’s regular tour of duty 

 

2 On the Form CA-1 appellant requested continuation of pay for her time off work.

3

In a March 18, 2015 statement, a coworker, S.B., indicated that on February 19, 2015 appellant left work at 

approximately 5:30 p.m. to 5:45 p.m. and that at some point thereafter she saw appellant sitting on a piece of 

cardboard in the parking lot. Appellant advised S.B. that she had fallen on ice. In a March 13, 2015 statement, 

another coworker, R.P., noted that at approximately 6:30 p.m. on February 19, 2015 she saw an ambulance arriving 

at the employing establishment. R.P. indicated that she later learned that the ambulance came for appellant, who 

had fallen on ice.
3

was 8:30 a.m. to 5:00 p.m., Monday to Friday, and that appellant was not approved for overtime 

or compensatory time for any period after the end of her tour of duty at 5:00 p.m. on 

February 19, 2015.4 The assistant noted that appellant’s fall occurred an hour after the end of her 

tour of duty and that the employing establishment found that her staying this amount of time past 

the end of her tour of duty was excessive. The employing establishment attached a February 19, 

2015 report in which a Department of Veterans Affairs police officer indicated that he received a 

telephone call at 8:10 p.m. advising that appellant had fallen in a parking lot at the employing 

establishment.

5

The record contains a memorandum memorializing an April 15, 2015 conference 

between a human resources specialist for the employing establishment and an OWCP claims 

examiner. The specialist indicated that appellant’s shift ended every day at 5:00 p.m., and that 

this was the time her shift ended on February 19, 2015. She noted that appellant did work past 

5:00 p.m. on February 19, 2015, but appellant did so of her own accord without approved 

overtime or compensatory time. The specialist advised that appellant’s fall occurred at 

approximately 6:07 p.m. on February 19, 2015.

Appellant submitted a February 19, 2015 report from Dr. Shawn McCarty, an attending 

Board-certified emergency medicine physician,6 who indicated that she reported falling on ice at 

work on that date and hitting the back of her head. Dr. McCarty noted that a February 19, 2015 

computerized tomography (CT) scan of appellant’s head contained normal findings and he 

provided a diagnosis of concussion.7

In a February 27, 2015 report, Dr. Susan Maderic, an attending Board-certified family 

practitioner, discussed the circumstances of appellant’s February 19, 2015 fall and her reported 

symptoms after the fall, including headaches and dizziness. Dr. Maderic diagnosed closed head 

injury and vertigo due to a work-related fall on ice. The findings of a March 4, 2015 CT scan of 

appellant’s head contained an impression of mild atrophy, but no acute intracranial abnormality. 

Appellant also submitted disability certificates from attending physicians, laboratory 

results, informational sheets from her medical provider regarding the management of head 

injuries, and additional medical reports from her February 19, 2015 visit to the emergency room.

In an April 15, 2015 decision, OWCP denied appellant’s claim for a February 19, 2015 

work injury. It found that she established that she was a federal civilian employee who filed a 

timely claim, that an employment incident occurred as alleged, and that a medical condition had 

 

4 The record contains a timesheet printout identifying appellant’s “Scheduled Tour” on February 19, 2015 as 

being 8:30 a.m. to 5:00 p.m. 

5

In a February 26, 2015 e-mail to the employing establishment, a deputy police chief for the Veterans Affairs 

police indicated that video surveillance showed an individual falling in a parking lot at the Louisville Veterans 

Affairs Medical Center at 6:07 p.m. on February 19, 2015. 

6 The report was also signed by Eric Elder, an attending physician assistant.

7 The record contains a report of this CT scan which contains an impression of scalp hematoma in the left parietal 

region with symmetrical brain and ventricles, no focal area of decreased attenuation to suggest infarction/contusion, 

and no evidence of fracture, hemorrhage, hydrocephalus, or abnormal extra-axial fluid.
4

been diagnosed in connection with the incident. OWCP determined, however, that appellant’s 

claim for a February 19, 2015 injury was denied because she failed to establish the basic element

of performance of duty. The evidence of record was not sufficient to establish that the injury 

and/or medical condition arose during the course of employment and within the scope of 

compensable work factors. OWCP noted that appellant’s injury happened after 6:00 p.m. on 

February 19, 2015, over an hour after her shift ended. It indicated that the employing 

establishment verified that her normal work hours were 8:30 a.m. to 5:00 p.m. and that she was 

not authorized to work overtime on February 19, 2015.

In a letter dated August 7, 2015 and received on August 12, 2015, appellant requested 

reconsideration of OWCP’s April 15, 2015 decision. In her August 7, 2015 letter, she indicated

that, even though her work shift technically ended at 5:00 p.m., she often stayed past that time to 

complete work assignments that need to be finished prior to her leaving for the day. Appellant 

noted that, in the week prior to February 19, 2015, she had been staying in the office later 

because she had been out of the office the previous week on government travel and the previous 

Monday had been a federal holiday. She asserted that, on February 19, 2015, she was attempting 

to reduce the backlog that she had incurred.8

In a July 10, 2015 letter, appellant’s immediate supervisor indicated that appellant’s tour 

of duty was listed as 8:30 a.m. to 5:00 p.m. She noted that it was not unusual for appellant to 

work later than her tour of duty as a personal choice, although she usually left within 30 minutes 

of the end of her tour of duty. The supervisor noted that appellant was found on the ground at 

approximately 6:00 p.m. on February 19, 2015, but that she did not know how long she was on 

the ground before help arrived because she had lost consciousness.

In a September 21, 2015 letter, a human resources specialist indicated that video 

surveillance documented that appellant’s fall occurred at 6:07 p.m. on February 19, 2015. She 

indicated that appellant was not authorized to work overtime on February 19, 2015.

In an April 8, 2015 report, Dr. Maderic indicated that appellant reported still having 

headaches and experienced spinning and sharp pain/tenderness in the back top of her head when 

lying on her back or left side. Appellant advised that she was working on a full-time basis, but 

that she felt exhausted all the time. Dr. Maderic diagnosed closed head injury and vertigo due to 

a work-related fall on ice. In a July 17, 2015 report, she discussed appellant’s plan of care for 

physical therapy. Appellant also submitted a number of medical reports which had previously 

been submitted to OWCP. 

In a November 6, 2015 decision, OWCP denied modification of its April 15, 2015 

decision. It again found that she had not shown that the February 19, 2015 injury occurred in the 

performance of duty. OWCP noted that appellant’s fall occurred more than an hour after her 

tour of duty officially ended and that her staying late was of her own personal choice as opposed 

to having been directed by or officially approved by management.

 

8

In an October 8, 2015 statement, appellant noted that she routinely worked beyond the official end of her tour of 

duty at 5:00 p.m., including occasions when she worked as late as 7:00 p.m. 
5

In an appeal request form dated October 21, 2016 and received on November 8, 2016, 

appellant requested reconsideration of OWCP’s November 6, 2015 decision.

Appellant submitted an October 21, 2016 e-mail, addressed to her immediate supervisor, 

in which she indicated that she was submitting a request for compensatory time for two hours at 

the end of her shift (5:00 to 7:00 p.m.) on February 17, 18, and 19, 2015. She noted that, due to 

being on travel status the prior week and the holiday on February 16, 2015, she needed to work 

extra hours each day to catch up on monthly processing tasks, new clinic requests, etc., for the 

Louisville, Kentucky facility. In an October 21, 2016 e-mail response, the supervisor noted, 

“Approve. Forward to time keeping.”

Appellant also resubmitted medical reports, dated between February and July 2015, that

had previously been considered by OWCP. These included treatment reports dated February 19, 

April 8, and July 17, 2015, and diagnostic testing reports dated February 19 and March 4, 2015. 

In a December 2, 2016 decision, OWCP denied appellant’s request for further review of 

the merits of her claim because her request was untimely filed and failed to demonstrate clear 

evidence of error. It found that her request for reconsideration of its November 6, 2015 decision 

was untimely because it was received on November 8, 2016, which was more than one year after 

the November 6, 2015 decision. OWCP further determined that the factual and medical evidence 

submitted by appellant in support of her reconsideration request did not demonstrate clear 

evidence of error in its November 6, 2015 decision.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an 

award for or against payment of compensation at any time on his or her own motion or on 

application. The Secretary, in accordance with the facts found on review, may end, decrease or 

increase the compensation awarded, or award compensation previously refused or discontinued.9

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.10 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

claimant’s application for review demonstrates clear evidence of error on the part of OWCP in 

its most recent merit decision. To demonstrate 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 be manifest on its face that OWCP committed an error.11

 

9

5 U.S.C. § 8128(a).

10 20 C.F.R. § 10.607(a).

11 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).
6

To demonstrate clear evidence of error, 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 

notes that clear evidence of error is intended to represent a difficult standard.13 Evidence that 

does not raise a substantial question concerning the correctness of OWCP’s decision is 

insufficient to demonstrate clear evidence of error.14 It is not enough merely to establish that the 

evidence could be construed so as to produce a contrary conclusion.15 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.16 The Board makes an independent 

determination as to whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.17

ANALYSIS

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.18 As appellant’s request for 

reconsideration was not received by OWCP until November 8, 2016, more than one year after 

issuance of its November 6, 2015 merit decision, it was untimely filed.19 Consequently, she 

must demonstrate clear evidence of error by OWCP in its November 6, 2015 decision.20

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

OWCP in issuing its November 6, 2015 decision. 

Appellant did not submit the type of positive, precise, and explicit evidence which 

manifests on its face that OWCP committed an error in its November 6, 2015 decision.21 The 

evidence she submitted did not raise a substantial question concerning the correctness of 

 

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

13 R.K., Docket No. 16-0355 (issued June 27, 2016).

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

15 Id.

16 Id.

17 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

18 See supra note 11.

19 The last day of the one-year filing period fell on a weekend; therefore, appellant had until Monday, 

November 7, 2016 to timely request reconsideration. See Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (February 2016).

20 See supra note 12.

21 See id.
7

OWCP’s decision.22 Appellant submitted an October 21, 2016 e-mail in which she retroactively 

requested compensatory time between 5:00 p.m. and 7:00 p.m. on the workdays February 17, 18, 

and 19, 2015 and another October 21, 2016 e-mail in which her supervisor responded that the 

request was approved. However, she did not explain how this evidence raised a substantial 

question as to the correctness of OWCP’s November 6, 2015 decision. The granting of 

compensatory time more than one and a half years after the fact would have no bearing on the 

appellant’s work status at the actual time of her fall on February 19, 2015. OWCP explained in 

its decisions denying her claim for a February 19, 2015 injury that she failed to establish an 

injury in the performance of duty because, at the time of her fall, she had been off the clock for 

more than an hour and was not engaged in her assigned work duties or incidental tasks at the 

direction of the employing establishment.

23

 The Board notes that the retroactive granting of 

compensatory time, without any explanation for such granting, does not provide any further 

evidence that appellant was engaged in specific regular or specially assigned work duties, or 

tasks incidental to those duties at the time of her fall on February 19, 2015 such that she was in 

the performance of duty at that time.

24

 Therefore, the submission of this evidence, in and of 

itself, would not raise a substantial question regarding the correctness of OWCP’s determination, 

in its November 6, 2015 decision, that she failed to establish a February 19, 2015 injury 

occurring in the performance of duty.

Appellant also submitted medical reports dated between February and July 2015 that had 

previously been submitted and considered by OWCP.

25

 These documents would not tend to 

show clear evidence of error in OWCP’s November 6, 2015 decision because her claim for a 

February 19, 2015 injury was denied on a factual basis, rather than a medical basis.

The Board finds that appellant’s application for review does not show on its face that 

OWCP committed error when it found in its November 6, 2015 decision that she did not 

establish an injury in the performance of duty on February 19, 2015.

26

 As noted, clear evidence 

 

22 See supra note 15.

23 See generally supra notes 19 through 28 describing the standards for establishing that an injury occurred in the 

performance of duty.

24 As noted above, an injury occurring on the premises while an employee is coming from work after working 

hours may be compensable and this includes a reasonable interval after official working hours while the employee is 

on the premises engaging in acts incidental to work. What constitutes a reasonable interval depends not only on the 

length of time involved, but also on the circumstances occasioning the interval and nature of the employment 

activity. The mere fact that an injury occurs on an industrial premises following a reasonable interval after working

hours is not sufficient to bring the injury within the performance of duty. The claimant must show substantial 

employer benefit or an employer requirement in order for the activity to be considered as arising out of employment. 

See supra notes 22 through 28.

25 Appellant resubmitted treatment reports dated February 19, April 8, and July 17, 2015 and diagnostic testing 

reports dated February 19 and March 4, 2015.

26 See S.F., Docket No. 09-0270 (issued August 26, 2009) (find that an untimely application for review must 

show on its face that OWCP committed error in a prior merit decision).
8

of error is intended to represent a difficult standard.27 Appellant has not met this standard in this 

case.28

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

question concerning the correctness of OWCP’s November 6, 2015 decision and OWCP 

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

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 December 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 9, 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

 

27 See supra note 14.

28 On appeal, appellant argues that her February 19, 2015 injury occurred in the performance of duty because she 

had been working past the end of her tour of duty every day that week due to having been away on travel duty and 

the due to the prior Monday having been a holiday. However, she did not explain how the particular evidence she 

submitted in connection with her untimely reconsideration request showed clear evidence of error in OWCP’s 

November 6, 2015 decision.