United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Phoenix, AZ, Employer

__________________________________________

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Docket No. 18-0362

Issued: July 26, 2018

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 11, 2017 appellant, through counsel, filed a timely appeal from a 

November 8, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed from the last merit decision dated September 14, 2006, to the filing 

of this appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
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 July 18, 2006 appellant, then a 50-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that, after attending a seminar for work on July 1, 2006, she sustained multiple 

fractures when she slipped on food laying on a walkway in San Antonio, Texas. She stopped work 

on the date of injury. Appellant did not submit any additional evidence in support of her claim.

On the reverse side of the claim form, the employing establishment controverted the claim, 

contending that appellant’s claimed injury was not work related as the injury occurred off of its 

premises while she was sightseeing. 

OWCP, by development letter dated July 25, 2006, notified appellant of the deficiencies of 

her claim and afforded her 30 days to submit additional medical and factual evidence. Appellant 

was also provided a questionnaire for her completion regarding the factual circumstances of her 

injury.

In a separate letter dated July 25, 2006, OWCP requested that the employing establishment 

respond to several questions regarding such matters as appellant’s last performance of official 

duty, the location of her claimed injury relative to the place she last performed official duty, where

she was traveling at the time of injury, the purpose of her trip, when and where she was expected 

to perform her next official duty, whether she was on the most direct route between the point of 

her last official duty and next expected official duty, and whether travel expenses were 

reimbursable. 

Neither appellant, nor the employing establishment responded to OWCP’s requests for 

additional factual information.

An Arizona State Workers’ and Physicians’ Report of Injury and a narrative medical report 

dated July 6, 2006 from Dr. Edward M. Lucero, a Board-certified orthopedic surgeon, related that,

on July 1, 2006, appellant injured her right wrist when she slipped and fell at the River Walk in 

San Antonio, Texas while attending a convention sponsored by the employing establishment.

Dr. Lucero examined her and provided an impression of closed displaced comminuted intraarticular right Colles wrist fracture due to the July 6, 2006 incident. He recommended right wrist 

surgery and advised that appellant was temporarily totally disabled from July 1, 2016 until further 

notice.

By decision dated September 14, 2006, OWCP denied appellant’s traumatic injury claim, 

finding that she had not established that she was in the performance of duty at the time of the 

July 1, 2006 incident. It explained that, while she was on travel status at the time of injury, she 

had deviated from activities essential or reasonably incidental to her official duties as she engaged

in a personal sightseeing activity on the River Walk. OWCP noted that appellant did not respond 
3

to its factual inquiries regarding whether she was performing official duties at the time of the 

July 1, 2006 incident. 

In a memorandum of telephone call on March 2, 2007, OWCP informed appellant that it 

had not received a request for an oral hearing and that she was beyond the 30-day limitation for 

requesting such a hearing. It advised her to request reconsideration and addressed the type of 

evidence she needed to submit in support of the request. 

In a July 12, 2016 letter, appellant related that she went to San Antonio for a conference 

arranged and paid for by the employing establishment. She further related that the conference was 

over on July 1, 2006 and because there were approximately two hours before her shuttle ride to 

the airport she had lunch and saw sights behind her hotel on the River Walk. Appellant claimed 

that while getting on a river taxi, kids ran in front of her and she slipped on food, falling into the 

river and breaking her right arm, damaging muscles and nerves, hitting her head, and almost 

drowning. An off-duty paramedic pulled her out of the water by her hair and she was transported 

to a hospital by ambulance. Appellant noted that she subsequently underwent three surgeries on 

her dominant right arm followed by physical therapy as a result of the accident. She was also 

diagnosed with post-traumatic stress disorder and alleged that, after working 26 years as a 

registered nurse and receiving an outstanding evaluation from her supervisor, she would never be 

able to physically and mentally work again. Appellant indicated that she medically retired in 2008 

and never returned to work. She noted OWCP’s denial of her claim and that the employing 

establishment had advised her that an appeal of the decision was also denied. Appellant suspected 

that her appeal was lost or shredded and may not have reached OWCP. She sought assistance 

from her United States senator regarding this matter. In a response to the inquiry, the senator was 

informed that appellant’s records were being reviewed by the employing establishment. However, 

on June 5, 2015 appellant was informed by the employing establishment that it had never received 

or reviewed her records which were sent to the U.S. Labor Department when she retired. 

In a separate letter dated July 12, 2016, appellant requested a copy of her case file to 

determine whether an appeal had been filed in her case. By letter dated July 13, 2016, OWCP 

responded that no appeal request had been received. It resent a copy of its September 14, 2006 

decision and advised appellant to pursue her appeal rights attached to that decision.

Appellant, through counsel, in a letter dated August 4, 2017 and received by OWCP on 

October 24, 2017, requested reconsideration of the September 14, 2006 decision. Counsel cited 

Board precedent and contended that Dr. Lucero’s medical opinion established that appellant’s right 

wrist fracture was caused by the July 6, 2006 incident. She cited additional Board precedent and 

contended that the evidence of record established that appellant’s off-premises injury occurred in 

the performance of duty. Counsel further asserted that her injury occurred while she was in travel 

status, during her shift, and while she was engaged in an activity incidental to her employment, 

eating lunch at a restaurant, which fell under the personal comfort doctrine. Additionally, she 

maintained that appellant’s injury was compensable because appellant used a water taxi on the 

most direct route to return to her hotel after lunch to avoid getting stuck in traffic around the River 

Walk. Alternatively, counsel contended that, if it was determined that sightseeing while on a water 

taxi to a lunch location was an actual deviation from the performance of appellant’s work duties, 

then she still should be found in the performance duty at the time of injury as she was attempting 

to board a water taxi to her hotel to catch a scheduled shuttle to the airport.
4

In an undated letter, appellant noted that she stayed and attended the conference at the 

Crowne Plaza Riverwalk and Conference Center, 111 E Pecan Street in San Antonio, Texas. She 

related that the River Walk where her claimed injury occurred was approximately seven minutes 

away from the conference site. Appellant maintained that all of the scheduling for the conference 

trip, including airline tickets, hotel, and shuttle was handled by her employer. She indicated that 

the shuttle was scheduled to pick her up approximately two hours after the conference ended so 

that she could pack her suitcase, eat lunch, and be in the hotel lobby to take a shuttle to the airport 

to return home. Appellant further indicated that she did not extend her stay or change her airline 

ticket or shuttle departure time. She noted that after she packed her suitcase she went to the River 

Walk to eat lunch. Appellant then reiterated her history of injury. 

Appellant submitted an invoice from the City of San Antonio Emergency Medical Service 

(EMS) which noted that on July 1, 2006 she was transported from 602 E Commerce Street E to 

Baptist Medical Center. She also submitted a document which indicated that the conference she 

attended was held at the Crowne Plaza Riverwalk and Conference Center from June 29 through 

July 1, 2006. Appellant submitted a San Antonio Cruises combined map which noted the locations 

of water taxi stops, landmarks, and museums and an additional map which showed that the travel 

time between 111 E Pecan Street and 602 W Commerce Street was seven minutes.

By decision dated November 8, 2017, OWCP denied appellant’s request for 

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

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.3 This discretionary authority, however, is subject to certain restrictions. For 

instance, a request 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 of 

the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees Compensation System (iFECS).5 Imposition of this one-year filing limitation does not 

constitute an abuse of discretion.6

OWCP may not deny a reconsideration request solely because it was untimely filed. When 

a claimant’s application for review is untimely filed, OWCP must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.7 

 

3 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

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 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7 M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 5 at Chapter 

2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a difficult standard).
5

To demonstrate clear evidence of error, a claimant must submit evidence that is relevant to 

the issue that was decided by OWCP,8is positive, precise, and explicit, and manifests on its face 

that OWCP committed an error.

9

 The evidence must not only be of sufficient probative value to 

create a conflict in medical opinion or establish a clear procedural error, but must also shift the 

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

of OWCP’s decision for which review is sought. Evidence that does not raise a substantial 

question is insufficient to demonstrate clear evidence of error. It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion. A determination of 

whether the claimant has demonstrated clear evidence of error entails a limited review of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record.10

ANALYSIS

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

reconsideration was untimely filed. OWCP’s regulations11 and procedures12 establish a one-year 

time limit for requesting reconsideration, which begins on the date of the original OWCP merit 

decision. The most recent merit decision was OWCP’s September 14, 2006 decision. Appellant 

had one year from the date of that decision to make a timely request for reconsideration. As OWCP 

did not receive appellant’s reconsideration request until October 24, 2017, eleven years later and 

more than one year after the September 14, 2006 merit decision, it was untimely filed. 

Consequently, she must demonstrate clear evidence of error by OWCP in the denial of her claim.13

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

appellant’s untimely request for reconsideration do not raise a substantial question as to the 

correctness of OWCP’s last merit decision and are, therefore, insufficient to demonstrate clear 

evidence of error. In its September 14, 2006 decision, OWCP denied appellant’s traumatic injury 

claim because she had failed to establish that she was in the performance of duty when she slipped 

and fell injuring her right wrist on July 1, 2006. It found that the factual evidence of record was 

insufficient to demonstrate that she sustained a right wrist injury as alleged, as she had deviated 

from activities essential or reasonably incidental to her official duties by engaging in a personal 

sightseeing activity after the conference she attended in San Antonio had ended. OWCP also found 

that appellant had not responded to OWCP’s factual development questionnaire. The underlying 

issue in appellant’s claim was factual in nature with respect to whether she was in the performance 

of duty on July 1, 2006. 

On reconsideration counsel cited Board precedent and contended that appellant was in the 

performance of duty on July 1, 2006. Also, on reconsideration, appellant provided responses to 

 

8 Dean D. Beets, 43 ECAB 1153 (1992).

9 Leona N. Travis, 43 ECAB 227 (1991).

10 J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010).

11 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

12 Supra note 5 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
6

OWCP’s request for additional factual and medical information. The only factual evidence 

received by OWCP regarding appellant’s injury prior to the denial of her claim on September 14, 

2006 was the Form CA-1 dated July 18, 2006. In OWCP’s July 25, 2006 development letter, 

appellant was informed of the information required to establish her claim and provided a 

questionnaire to complete describing the factual circumstances surrounding her claimed injury. In 

requesting reconsideration, appellant and counsel submitted statements as to appellant’s activity 

at the time of the eleven-year-old injury. Appellant related in her July 12, 2016 letter to OWCP 

that she had lunch and then saw sights behind her hotel on the River Walk, and while boarding a 

river taxi, she slipped and fell into the river. Counsel asserted that appellant was in the 

performance of duty on July 1, 2006 as her claimed right wrist injury occurred while she was in 

travel status, during her shift, and while she was engaged in an activity incidental to her 

employment which involved eating at a restaurant which fell under the personal comfort doctrine. 

However, counsel also noted that appellant was attempting to board a water taxi after lunch, to

return to her hotel and catch a scheduled shuttle to the airport. Appellant also submitted in support 

of her reconsideration an EMS invoice, hotel conference information, and maps. 

The Board finds that appellant did not submit sufficient evidence to demonstrate clear 

evidence of error in OWCP’s denial of her claim. While the arguments and evidence on 

reconsideration attempt to address that appellant was in the performance of duty on July 1, 2006, 

they do not demonstrate clear evidence of error on the part of OWCP. As noted, it is not enough 

merely to show that the evidence could be construed so as to produce a contrary conclusion. The 

evidence, on its face, must be positive, precise, and explicit that the injury occurred as alleged. 

At the time of the 2006 decision there was no evidence of record regarding the issue of 

performance of duty as appellant had not responded to OWCP’s initial inquiries for additional 

factual and medical evidence. However, the arguments and evidence submitted by appellant on 

reconsideration do not manifest on their face that OWCP committed error when finding that she 

was not in the performance of duty on July 1, 2006.14

On appeal counsel cites Board precedent and contends that evidence submitted in support 

of appellant’s request for reconsideration establishes clear evidence of error in OWCP’s decision 

finding that appellant was not in the performance of duty when she sustained a right wrist 

condition.

The Board finds that OWCP properly denied appellant’s October 24, 2017 request for 

reconsideration as it failed to demonstrate clear evidence of error. 

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.

 

14 20 C.F.R. § 10.607(a); see also W.T., Docket No. 14-1299 (issued October 8, 2014). 
7

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 26, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board