United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bel Air, MD, Employer 

__________________________________________ 

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Docket No. 16-1135 

Issued: September 11, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On May 6, 2016 appellant filed a timely appeal from a November 12, 2015 nonmerit 

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

elapsed from OWCP’s last merit decision dated August 22, 2014 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.2

ISSUE 

The issue is whether OWCP properly determined that appellant’s August 25, 2015 

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

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted new evidence on appeal. However, the Board cannot consider this 

evidence as its review of the case is limited to the evidence of record which was before OWCP at the time of its final 

decision. 20. C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003). 
2

FACTUAL HISTORY 

On July 11, 2014 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on December 7, 2013 she suffered a mild concussion when she fell 

out of her truck onto a cement ground while loading. 

A December 7, 2013 patient visit information form from Harford Memorial Hospital 

indicated that patient instructions were provided for muscle strain, concussion, and head injury, 

no wake-up (adult). 

In a July 11, 2014 statement, an individual, whose signature is illegible, noted that he/she 

was informed on December 7, 2013 that appellant fell out of the back of her truck while loading. 

In a July 21, 2014 letter, OWCP advised appellant of the deficiencies in her claim and 

requested additional factual and medical evidence from a qualified physician supported by a 

medical explanation as to how the reported work incident caused or aggravated a medical 

condition. Appellant was provided 30 days to submit the requested information. No further 

information was received. 

By decision dated July 21, 2014, OWCP determined that appellant was not entitled to 

continuation of pay during her absence from work for the period December 8, 2013 and 

continuing. 

By decision dated August 22, 2014, OWCP denied appellant’s claim as there was no 

medical evidence containing a medical diagnosis in connection with the established work event 

of December 7, 2013. 

On August 25, 2015 OWCP received appellant’s August 17, 2015 request for 

reconsideration. Appellant described her injury and indicated that only the emergency room visit 

was to be considered. She stated that she had submitted all the records given to her from the 

hospital to “Kay” on July 29, 2015. 

With her reconsideration request, appellant submitted a July 14, 2014 statement from the 

employing establishment regarding continuation of pay. Also submitted were a July 28, 2014 

authorization for release of health information along with December 7, 2013 notes from the 

emergency department of Upper Chesapeake Medical Center and diagnostic testing. Laura 

Gaskill, a certified physician assistant, noted the history of the work injury and provided a 

clinical impression of head injury, mild concussion, and muscle strain. Appellant was 

discharged in good condition. The hospital notes were electronically signed by Dr. Carla Janson, 

a Board-certified emergency medical physician. 

By decision dated November 12, 2015, OWCP denied appellant’s request for 

reconsideration on the basis that it was untimely filed and failed to demonstrate clear evidence of 

error. 
3

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4

 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.5

 OWCP will consider an untimely request for reconsideration only if the request 

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”6 

The request must establish on its face that such decision was erroneous.7

 Where a request is 

untimely and fails to present any clear evidence of error, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.8

ANALYSIS 

By decision dated August 22, 2014, OWCP denied appellant’s traumatic injury claim 

because she failed to satisfy the medical component of fact of injury. At the time, appellant had 

not submitted a physician’s opinion diagnosing a medical condition in connection with the 

December 7, 2013 employment incident. On August 25, 2015 OWCP received appellant’s 

request for reconsideration. Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the “received date” in iFECS.9

 In this instance, the 

iFECS record reflects that OWCP received appellant’s August 17, 2015 request for 

reconsideration on August 25, 2015, which was more than one year after the last merit decision 

of record dated August 22, 2014.10 As appellant’s request was untimely filed, she must 

 3

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 

5 Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(February 2016). 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). Id. at 

Chapter 2.1602.4b. 

6 Id. at § 10.607(b). 

7 Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided 

by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it 

must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not 

enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does 

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

evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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. Thankamma Mathews, 44 ECAB 765, 770 (1993). 

8

 20 C.F.R. § 10.608(b). 

9 Supra note 4. 

10 J.M., Docket No. 15-1586 (issued March 23, 2016) (the Board explained that according to OWCP procedures, 

the received date is determined by the document received date in iFECS). 
4

demonstrate clear evidence of error on the part of OWCP in its denial of her traumatic injury 

claim.11

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 OWCP’s 

August 22, 2014 decision. 

In her request for reconsideration, appellant described the December 7, 2013 employment 

incident. The Board notes, however, that the factual occurrence of the December 7, 2013 work 

incident is not in dispute. OWCP denied the claim because the medical evidence of record failed 

to establish that the December 7, 2013 incident caused an injury. 

Appellant submitted a complete hospital record, including diagnostic testing, of her 

December 7, 2013 visit. Dr. Janson provided a clinical impression of head injury, mild 

concussion, and muscle strain, the hospital documentation was electronically signed by 

Dr. Janson.12 This evidence, however, is insufficient to establish that OWCP erred in its denial 

of appellant’s claim.13 The Board notes that clear evidence of error is intended to represent a 

difficult standard. Evidence, such as a detailed well-rationalized medical report, which if 

submitted before the merit denial might require additional development of the claim, is 

insufficient to establish clear evidence of error.14 Although the hospital documents submitted are 

supportive of appellant’s claim to establish a firm medical diagnosis, they do not establish clear 

evidence of error on the part of OWCP as they were submitted after the August 22, 2014 merit 

decision.15 Thus, the hospital report and diagnostic testing do not raise a substantial question as 

to the correctness of OWCP’s August 22, 2014 merit decision or demonstrate clear evidence of 

error.16 OWCP properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a). 

CONCLUSION 

The Board finds that appellant’s August 25, 2015 request for reconsideration was 

untimely filed and failed to demonstrate clear evidence of error. Therefore, she is not entitled to 

further merit review. 

 11 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 

12 Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists, and social 

workers are not considered “physician[s]” as defined under FECA. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing entitlement to 

FECA benefits. K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report 

from a physician assistant or certified nurse practitioner is considered medical evidence only when countersigned by 

a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 

2.805.3a(1) (January 2013). 

13 See G.B., Docket No. 13-1260 (issued December 2, 2013); see also W.R., Docket No. 09-2336 (issued 

June 22, 2010). 

14 Federal (FECA) Procedure Manual, supra note 15 at Chapter 2.1602.3(c) (March 2011). 

15 G.B., supra note 13. 

16 Id. 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 12, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board