United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.T., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

SHAWNEE FOSSIL PLANT, Paducah, KY, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0542 

Issued: June 12, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 10, 2017 appellant, through counsel, filed a timely appeal from a 

December 12, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The most recent merit decision in this case was the October 8, 2015 decision of the 

Board which became final 30 days after issuance and is not subject to further review. As there 

was no merit decision by OWCP within 180 days of 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 appellant’s 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 as it 

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

On appeal counsel argues that a new medical report is sufficient to demonstrate clear 

evidence of error. 

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts as presented in the prior 

Board decision are incorporated herein by reference. The relevant facts are set forth below. 

On February 18, 2014 appellant, then a 38-year-old assistant unit operator, filed a 

traumatic injury claim (Form CA-1) alleging that on January 30, 2014 he injured the left side of 

his lower back, the sacrum, and his left leg when his feet slipped out from under him while at 

work. 

By decision dated April 14, 2014, OWCP denied appellant’s claim as the medical 

evidence of record did not establish an injury causally related to the accepted January 30, 2014 

employment incident. On April 29, 2014 counsel for appellant requested a telephonic hearing 

before an OWCP hearing representative, and submitted medical reports regarding appellant’s 

diagnosed conditions of left-sided back pain; severe left buttock, thigh, and leg radiculopathy; 

degenerative disc disease at L3-4, L5-S1, worse at L3-4; mild facet arthropathy at L3-4 and L5-

S1; and mild foraminal stenosis, worst on the left at L5-S1. By decision dated January 29, 2015, 

the hearing representative affirmed OWCP’s April 14, 2014 decision. 

On May 5, 2015 appellant, through counsel, appealed the January 29, 2015 decision to 

the Board. By decision dated October 8, 2015, the Board found that appellant had not submitted 

sufficient medical evidence to establish causal relationship between his diagnosed medical 

conditions and the January 30, 2014 employment incident.4

By letter dated and received on December 2, 2016, counsel filed a motion requesting that 

OWCP rescind the October 8, 2015 Board decision.5

 He argued that since the last decision by 

OWCP, new medical evidence had been received, including a detailed medical report with a 

rationalized statement of causal relationship. Counsel argued that Board precedent required 

OWCP to consider all evidence on file, and that, therefore, this new medical evidence, which 

was not previously available for consideration by OWCP, should suffice to rescind the decision 

of October 8, 2015. 

 3

 Docket No. 15-1210 (issued October 8, 2015). 

4 Id. 

5

 OWCP is not authorized to review Board decisions. Although the October 8, 2015 decision was the last merit 

decision, the hearing representative’s January 29, 2015 merit decision is the appropriate subject of possible 

modification by OWCP. See 20 C.F.R. § 501.6(d). 
3

In a report dated September 1, 2016, signed by the physician on November 9, 2016, 

Dr. Neil Allen, Board-certified in internal medicine and neurology, opined: “[appellant’s] agerelated changes within the spine combined with the accident on January 30, 2014 contributed to 

the manifestation of symptomatic lumbar spondylosis.” He related, “[t]he forceful and acute 

lumbar extension and torsion sustained by [appellant] on January 30, 2015 was the aggravating 

event directly resulting in a symptomatic lumbar disc herniation and lumbar spondylosis. This is 

supported by accepted medical fact in the literature, as described above.” 

OWCP treated counsel’s December 2, 2016 motion to rescind as a request for 

reconsideration. By decision dated December 12, 2016, it denied the request for reconsideration, 

finding that it 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, a 

request for reconsideration must be received by OWCP within one year of the date of OWCP’s 

decision for which review is sought.6

 For decisions after August 29, 2011, the date the request is 

received into iFECs is considered the date of receipt under OWCP procedures.7 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.8

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.9 

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.10

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

issue which was decided by OWCP.11 The evidence must be positive, precise and explicit and 

must manifest on its face that OWCP committed an error.12 Evidence which does not raise a 

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

 6

 20 C.F.R. § 10.607(a). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (October 2011). 

8

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

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

10 Id.; 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.” 

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

12 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 
4

demonstrate clear evidence of error.13 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.14 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.15

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.16 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.17

ANALYSIS 

The Board finds that, in its December 12, 2016 decision, OWCP properly determined that 

appellant’s request for reconsideration was untimely filed. Its regulations provide that the oneyear time limitation period for requesting reconsideration begins on the date of the last merit 

decision.18 Appellant’s request for reconsideration was received on December 2, 2016, which 

was more than one year following the Board’s October 8, 2016 merit decision. Therefore, he 

must demonstrate clear evidence of error on the part of OWCP in issuing its January 29, 2015 

decision. 

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

part of OWCP in issuing its January 29, 2015 decision. He did not submit the type of positive, 

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

Appellant’s request for reconsideration contained a new report from Dr. Allen, dated 

September 1, 2016, signed on November 9, 2016, which was not previously considered by 

OWCP in its January 29, 2015 decision. On appeal counsel contends that this report was 

sufficient for OWCP to exercise its discretion to reopen the case for merit review, or that the 

motion to rescind should be granted. However, OWCP’s procedure manual provides that the 

submission of such a report, even if well rationalized, does not demonstrate clear evidence of 

error.19

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

14 See Leona N. Travis, supra note 12. 

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

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

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

18 20 C.F.R. § 10.607(a). 

19 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a) (February 2016); see D.G., 59 ECAB 

455 (2008). See also S.R., Docket No. 17-0271 (issued April 24, 2017). 
5

For these reasons, the Board finds that OWCP properly determined that appellant 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. 

ORDER 

IT IS HEREBY ORDERED THAT the December 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 12, 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