United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.G., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, Albuquerque, NM, Employer 

__________________________________________ 

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Docket No. 17-0175 

Issued: June 15, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 2, 2016 appellant filed a timely appeal from a May 5, 2016 nonmerit 

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

days elapsed from April 18, 2014, the date of the most recent merit decision, 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. 

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. 

FACTUAL HISTORY 

On December 20, 2013 appellant, then a 49-year-old recreational assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on December 19, 2013, she sustained a 

 1

 5 U.S.C. § 8101 et seq. 
2

headache, shoulder stiffness, and a nosebleed as a result of a rear-end collision between vehicles 

while in the performance of duty. 

By letter dated March 19, 2014, OWCP advised appellant that the evidence of record was 

insufficient to support her claim. It noted that it had not received any medical evidence from a 

physician in support of her claim. OWCP afforded appellant 30 days to submit additional 

evidence to the record. The March 19, 2014 letter was mailed to appellant’s address of record. 

In reports dated December 19, 2013, January 17 and 20, 2014, chiropractors noted that 

appellant had developed headaches and a cervical sprain/strain. 

Appellant submitted notes from physical therapists dated between January 2 

and 30, 2014. 

In a diagnostic report dated January 29, 2014, Dr. Sinclair Cottingham, a Board-certified 

radiologist, examined the results of an x-ray of appellant’s cervical spine. He provided an 

impression of moderate-to-severe cervical spondylosis and straightening of cervical lordosis. 

Appellant submitted a note from a certified physician assistant dated January 29, 2014. 

In a diagnostic report dated March 18, 2014, Dr. Anthony Larhs, a Board-certified 

radiologist, examined the results of a magnetic resonance imaging (MRI) scan of appellant’s 

cervical spine. He noted right foraminal disc herniation at C5-6, in addition to degenerative 

changes. 

On April 17, 2014 appellant submitted a letter requesting a change of address. 

By decision dated April 18, 2014, OWCP denied appellant’s claim. It noted that 

appellant had not submitted any medical evidence from a physician containing a medical 

diagnosis causally related to her claimed employment injury. The April 18, 2014 decision was 

mailed to appellant’s new address. 

On May 22, 2014 OWCP received additional medical evidence from Dr. Greg S. Carrol.2

 

In a report dated January 29, 2014, Dr. Carrol noted that appellant “sustained an injury to the 

cervical spine during a work-related [motor vehicle accident].” He examined her head and neck, 

finding tenderness to paraspinal muscles and a positive Spurling’s test in the left arm. Dr. Carrol 

diagnosed cervical strain. On April 16, 2014 he assessed appellant with “neck pain.” In a report 

dated April 18, 2014, Dr. Carrol again assessed appellant with neck pain, and noted that the 

problem began four to six months before that date. 

On June 25, 2014 OWCP received a report dated January 30, 2014, from Dr. Brian 

Wilkins, a chiropractor, who noted that spinal subluxation was present. 

By form dated February 9, 2016, received by OWCP on February 16, 2016, appellant 

requested reconsideration. On reconsideration, she included a narrative statement, arguing that 

 2

 Dr. Carrol’s certification in a medical specialty could not be confirmed. 
3

she had not received relevant mail from OWCP relating to her case, including the development 

letter of March 19, 2014. 

By decision dated May 5, 2016, OWCP found that appellant’s request for reconsideration 

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

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 

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 because the application was 

untimely filed. When an application for review is untimely filed, it must nevertheless undertake 

a limited review to determine whether the application demonstrates 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 demonstrates clear evidence of error on the part of OWCP.6

To demonstrate 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 

demonstrate 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

 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 (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). 
4

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 demonstrate 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 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 

The Board finds that in its May 5, 2016 decision, OWCP properly determined that 

appellant had failed to file a timely application for review.14 Its regulations provide that the oneyear time limitation period for requesting reconsideration begins on the date of the last merit 

decision by OWCP.15 Appellant’s request for reconsideration was received on February 16, 

2016, which was more than one year after the April 18, 2014 merit decision. Therefore, she 

must demonstrate clear evidence of error on the part of OWCP in issuing its April 18, 2014 

decision. 

The Board further finds that appellant has failed to demonstrate clear evidence of error on 

the part of OWCP in issuing its April 18, 2014 decision. She did not submit the type of positive, 

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

In her request for reconsideration, appellant included a narrative statement alleging that 

she had not received correspondence from OWCP relevant to her case, as she had changed her 

address. The case record contains her request for a change of address, dated April 17, 2014. The 

decision of April 18, 2014 was sent to the new address. OWCP’s development letter of 

March 19, 2014 was sent to her previous address, but OWCP was not notified until April 17, 

2014 of the address change. As such, the allegation that she did not receive the development 

letter was not an error on the part of OWCP. 

Moreover, a review of the medical evidence submitted to the record after the decision of 

April 18, 2014 does not demonstrate that OWCP committed error when it denied her claim as not 

establishing the medical component of fact of injury. 

Following OWCP’s April 18, 2014 decision OWCP received several reports from 

Dr. Carrol wherein he noted appellant’s symptoms, including neck pain. In a report dated 

January 29, 2014 he diagnosed cervical strain. OWCP also received an April 16, 2014 report 

from a chiropractor who noted that appellant had spinal subluxation. These reports did not 

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

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

14 The Board notes that the cover page of the May 5, 2016 decision incorrectly stated that OWCP reviewed the 

merits of appellant’s case under 5 U.S.C. § 8128. However, as the decision itself applied the clear evidence of error 

standard, the Board will apply the correct clear evidence of standard in this appeal. See G.F., Docket No. 07-1385 

(issued December 11, 2007). 

15 20 C.F.R. § 10.607(a). 
5

provide a detailed description of the accepted incident, and neither established causal 

relationship nor raised a substantial question as to the correctness of OWCP’s decision. As 

previously noted, 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.16 

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

question concerning the correctness of OWCP’s April 18, 2014 decision. Thus OWCP properly 

denied appellant’s request for reconsideration. 

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 May 5, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: June 15, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 See G.M., Docket No. 17-0149 (issued May 11, 2017).