United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.M., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, Washington, DC, Employer

__________________________________________

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Docket No. 18-0180

Issued: August 20, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 31, 2017 appellant filed a timely appeal from a May 4, 2017 nonmerit decision 

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

OWCP’s last merit decision dated April 26, 2016, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules 

of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated March 15, 2018, the Board denied 

the request for oral argument as it did not have jurisdiction over the merits of the case and thus, 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. 18-0180 (issued March 15, 2018). 
2

ISSUE

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

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

FACTUAL HISTORY

On March 10, 2016 appellant, then a 44-year-old legal assistant, filed a traumatic injury 

claim (Form CA-1) alleging that, on March 1, 2016, she fell when she was struck by copy room 

door at the employing establishment and knocked off her crutches. She claimed that her right 

knee, which already had a torn anterior cruciate ligament, jerked and was very sore to the touch. 

Appellant listed her injury as right knee medial collateral ligament/posterior cruciate ligament tear 

(MCL/PCL). She submitted illegible documents in support of her claim. 

By development letter dated March 24, 2016, OWCP advised appellant that additional

information was necessary to support her claim, including further information with regard to how 

the alleged incident occurred and medical information showing causal relationship between a 

medical diagnosis and the alleged employment event. It afforded her 30 days to submit the 

necessary evidence. 

In response, appellant submitted multiple reports from Kaiser Permanente. These reports 

included a February 1, 2016 report wherein Dr. Sangeeta Iyer, a Board-certified internist, 

diagnosed right knee medial collateral ligament tear and obesity. Dr. Iyer indicated that appellant 

should continue to use crutches. In an April 1, 2016 report, Dr. Gregory Ford, a Board-certified 

orthopedic surgeon, noted that appellant was initially injured in a nonemployment injury on 

January 22, 2016, and suffered exacerbation of the injury on March 1, 2016 when she fell at work. 

Appellant’s diagnoses were listed as right knee PCL tear, subsequent, and right knee MCL tear, 

subsequent. Dr. Ford found appellant able to work full capacity on May 18, 2016. 

In a decision dated April 26, 2016, OWCP denied appellant’s claim as it determined that 

she failed to meet the factual component of her claim. It noted that she had not provided additional 

factual information in response to its March 24, 2016 development letter. OWCP further noted 

that appellant had not submitted medical evidence to establish that a diagnosed medical condition 

was causally related to the alleged work injury or event. The FECA appeal rights accompanying 

the decision provided, in part, the following under appeal right number 2, entitled 

“RECONSIDERATION: The request must be signed, dated and received within one 

calendar year of the date of the decision.” (Emphasis in the original). 

Additional medical evidence was received by OWCP after the April 26, 2016 decision. 

These included reports that predated the March 1, 2016 alleged incident. In a January 25, 2016 

report, Dr. Robert Miles, a Board-certified family practitioner, indicated that appellant sustained a 

right knee injury three days prior when she fell on some icy steps and twisted her left knee. He 

diagnosed right knee chondral injury and right knee sprain. Records indicate that appellant 

continued to receive treatment for her injured right knee. In a February 12, 2016 magnetic 

resonance imaging (MRI) scan, Dr. Christopher Wu, a Board-certified radiologist, interpreted an 

MRI scan as evincing a full-thickness tear of the MCL and probably full-thickness tear of the PCL 

at the tibial attachment. He also noted early cartilage disease in the central trochlear groove.
3

On March 8, 2016 appellant was treated by Mr. Waters and his reports were reviewed by

Dr. Mychelle Shegog, a Board-certified orthopedic surgeon. Mr. Waters noted that appellant had 

her crutch knocked out from under her last week at work, causing her right knee to give out 

backwards. He noted that her MRI scan showed a complete proximal MCL tear and PCL tears, 

otherwise minimal damage/degeneration. Mr. Waters recommended that appellant continue to use 

her crutches and indicated that he would refer her to a surgeon for evaluation. Appellant also 

submitted physical therapy reports. 

On May 1, 2017 appellant requested reconsideration. She submitted a statement in which 

she alleged that she sent paperwork from her doctor that contained a specific statement that the 

workplace injury resulted in an exacerbation of her prior injury. Appellant also stated that she 

could not specify in more detail about the incident as it happened so quickly. She stated that the 

“Chair of the Departmental Appeals Board” as well as her supervisor were on the scene when 

emergency services came to help her off the floor. Appellant noted that her supervisor was with 

her as she left the office, got into the ambulance, went to the hospital emergency department, and

that her supervisor stayed until she received the x-rays and her husband arrived. She also submitted 

an e-mail form her supervisor memorializing a discussion they had relative to modified work 

activity. 

By decision dated May 4, 2017, OWCP denied appellant’s request for reconsideration, 

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

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 facts found on review, may end, decrease, or increase the 

compensation awarded, or award compensation previously refused or discontinued.3

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 

regulation provides that an application for reconsideration must be received within one year of the 

date of OWCP’s decision for which review is sought.4 Timeliness is determined by the document 

receipt date (i.e., the received date in OWCP’s Integrated Federal Employees’ Compensation 

system).5 When determining the one-year period for requesting reconsideration, the last day of 

the period should be included unless it is a Saturday, a Sunday, or a legal holiday.6 The Board has 

 

3 5 U.S.C. § 8128(a).

4 20 C.F.R. § 10.607(a). 

5 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016). 

6

Id.
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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.7

However, OWCP will reopen a claimant’s case for merit review, notwithstanding the oneyear 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 manifest on its face that OWCP committed an 

error.8

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 it 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.9 The Board 

notes that clear evidence of error is intended to represent a difficult standard.10 Evidence that does 

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

demonstrate clear evidence of error.11 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.12 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.13 The Board makes an independent determination as to whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.14

ANALYSIS

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed. A request for reconsideration must be received within one 

year of the date of OWCP’s decision for which review is sought.15 As appellant’s request for 

reconsideration was not received by OWCP until May 1, 2017, more than one year after the 

April 26, 2016 merit decision, it was untimely filed. Appellant contends that, based on the practice 

in her office, her understanding was that her reconsideration request must be mailed by 

April 26, 2017. However, in the statement with regard to appellant’s FECA appeal rights that was 

mailed to her with the decision, OWCP clearly noted and highlighted that any request for 

 

7 5 U.S.C. § 81328(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989)

8 Supra note 4 § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

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

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

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

12 Id.

13 Id.

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

15 20 C.F.R. § 10.607(a). 
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reconsideration must be signed, dated, and received by OWCP within one-calendar year of the 

date of the decision. Consequently, appellant must demonstrate clear evidence of error by OWCP 

in its April 26, 2016 decision. 

The Board also finds that appellant has not demonstrated clear evidence of error in the 

April 26, 2016 merit decision. The underlying issue is whether appellant has established that the 

claimed March 1, 2016 employment incident occurred as alleged -- i.e., that she in fact fell off her 

crutches when she was hit by a copy room door, and that this alleged incident caused her diagnosed 

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

her request for reconsideration did not raise a substantial question as to the correctness of the denial 

of the claim.16

The term clear evidence of error is intended to represent a difficult standard, and appellant’s

statement about her supervisor accompanying her to the hospital and that the Chairman of the 

employing establishment’s appeals board was on the scene when the emergency personnel arrived

is not the type of positive, precise, and explicit argument which manifested on its face that OWCP 

committed an error as it does not describe a mechanism of injury.

17

 Appellant’s statement and 

email memorializing a conversation relative to modified work is of insufficient probative value to 

shift the weight in her favor and raise a substantial question as to the correctness of the denial of 

claim in OWCP’s April 26, 2016 merit decision.18

In order to demonstrate clear evidence of error, a claimant must submit evidence relevant 

to the issue which was decided by OWCP.19 The only evidence submitted on reconsideration was 

medical evidence. 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 clear evidence of error.20 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.21 The medical 

evidence appellant submitted on reconsideration did not on its face establish that the alleged 

incident caused an injury. Consequently, the medical evidence is insufficient to demonstrate clear 

evidence of error. 

The Board finds that appellant’s request for reconsideration does not demonstrate that 

OWCP committed error when it denied appellant’s claim on April 26, 2016.

22

 As noted, clear 

 

16 D.B., Docket No. 17-1197 (issued November 1, 2017). 

17 Id.

18 See J.P., Docket No. 17-0053 (issued March 23, 2017). 

19 B.C., Docket No. 16-1404 (issued April 14, 2017). 

20 James R. Mirra, 56 ECAB 738 (2005); supra note 5 at Chapter 2.1602.5(a) (February 2016).

21 Nancy Marcano, 50 ECAB 110 (1998).

22 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).
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evidence of error is intended to represent a difficult standard and appellant has not met this standard 

in this case. 

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

concerning the correctness of OWCP’s April 26, 2016 merit 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 reconsideration request, finding 

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

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated May 4, 2017 is affirmed. 

Issued: August 20, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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