United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.M., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL SEA 

COMMANDS HEADQUARTERS, 

Washington DC, Employer 

__________________________________________ 

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Docket No. 17-0149 

Issued: May 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 31, 2016 appellant filed a timely appeal from a September 7, 2016 nonmerit 

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

elapsed from the last merit decision dated March 31, 2015, 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 this claim.2

 

ISSUE 

The issue is whether OWCP properly determined that appellant’s 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 following the September 7, 2016 decision. However, 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision. Thus, 

the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 

57 ECAB 126 (2005). 
2

FACTUAL HISTORY 

On October 16, 2013 appellant, then a 49-year-old administrator, filed a traumatic injury 

claim (Form CA-1) alleging that on September 16, 2013 he sustained trauma to his back, 

shoulder, and neck area and that he suffered from emotional and mental trauma as a result of 

racing down three flights of stairs and assisting others in an effort to escape an active shooter at 

work. He stopped work and returned on September 23, 2013. 

By letter dated November 13, 2013, OWCP advised appellant that no evidence had been 

received to support his traumatic injury claim. It requested that he respond to the attached 

questionnaire in order to substantiate the factual element of his claim and submit medical 

evidence to establish a diagnosed condition causally related to the alleged September 16, 2013 

employment incident. Appellant was afforded 30 days to submit the additional information. 

Appellant submitted an October 27, 2013 progress note by Dr. Lewis Eberly, Boardcertified in neurology and neurophysiology, who related that appellant had experienced sleep 

problems for 13 years. Dr. Eberly reviewed appellant’s medical history and provided physical 

and neurological examination findings. He diagnosed daytime hypersomnia, sleep onset, and 

sleep apnea. 

Appellant also provided emergency room records dated November 6, 2013. In an 

arthrogram diagnostic scan report of the left shoulder, Dr. Tammy Lamb, a Board-certified 

diagnostic radiologist, noted diagnoses of shoulder joint pain, brachial neuritis or radiculitis, 

cervical spondylosis without myelopathy, and cervicocranial syndrome. In a November 6, 2013 

magnetic resonance imaging (MRI) scan of appellant’s left shoulder, Dr. Mitali Bapna, a Boardcertified diagnostic radiologist, diagnosed supraspinatus tendinosis with partial bursal surface 

tear, mild tendinosis, tendinosis of the long head of the biceps tendon, and narrowing of the 

subacromial space with hypertrophic changes of the coracoacromial arch. 

In a November 25, 2013 MRI scan report of the lumbar spine, Dr. Mark Cameron 

Lopiano, a Board-certified diagnostic radiologist, diagnosed mild degenerative disease with no 

findings of central, foraminal, or lateral nerve root impingement. 

Appellant submitted reports dated December 2 and 16, 2013 cosigned by Shoshana Katz, 

a physician assistant, and Dr. Assaf T. Gordon, a physician Board-certified in physical medicine 

and rehabilitation. Dr. Gordon indicated that he examined appellant for complaints of pain in the 

neck and left lower extremity. He reviewed appellant’s history and provided physical 

examination findings. Dr. Gordon diagnosed cervical disc disruption, lumbar radiculopathy, low 

back pain, cervical radiculopathy, and cervical postlaminectomy syndrome. 

OWCP denied appellant’s claim by decision dated January 14, 2014. It found that he 

failed to establish fact of injury because he did not submit supporting evidence regarding the 

details or circumstances of the September 16, 2013 employment incident. OWCP also 

determined that appellant had not submitted sufficient medical evidence to establish that his 

diagnosed conditions were causally related to the alleged employment incident. 

In a statement dated January 28, 2014, appellant explained that on September 16, 2013 he 

raced down three flights of stairs to escape an active shooter situation at work. He indicated that 
3

he exited on the south side of the building with a large crowd of people, and they realized that 

they were trapped by a 10-foot wall, which separated the employing establishment from the river 

walk. Appellant related that he and two other male coworkers began to assist several dozen adult 

women over the wall. He asserted that, in his efforts to help women over the wall, he sustained 

bruises to his shoulder and chest, migraines headaches, and some sleepless nights filled with 

night terrors. Appellant noted that he underwent several MRI scans of his neck, shoulder, and 

lower back, which showed two herniated discs in his neck, a municipal tear to his left shoulder, 

and a herniated disc in his lower back. 

On March 11, 2014 OWCP received appellant’s request for a review of the written record 

by an OWCP hearing representative. In a letter dated March 6, 2014, appellant noted that he was 

providing a copy of his previous January 28, 2014 letter and copies of his physician’s records. 

He asserted that he believed that his injuries resulted from the September 16, 2013 shooting at 

the employing establishment when he helped several dozen frightened adult women over a wall. 

Appellant explained that he experienced sharp, shooting pains through his neck, shoulders, chest, 

arms, hands, and lower back area. 

Appellant also submitted a November 7, 2013 MRI scan report of his cervical spine by 

Dr. Nitin Kumar, a Board-certified diagnostic radiologist. Dr. Kumar observed discogenic 

disease at C4-5 and C6-7 resulting in central canal and bilateral neural foraminal narrowing at 

each level without cord compression or cord signal abnormality. Appellant also resubmitted 

Dr. Eberly’s October 25, 2013 progress note, Dr. Gordon’s October 28, 2013 progress note, 

Dr. Lamb’s November 6, 2013 arthrogram report, Dr. Bapna’s November 7, 2013 MRI scan 

report, and Dr. Cameron’s November 25, 2013 MRI scan report of the lumbar spine. 

In office notes dated October 28, 2013 to February 17, 2014, Dr. Gordon related 

appellant’s complaints of pain in the neck and left shoulder since a September 16, 2013 incident 

at work. He reviewed appellant’s history and provided examination findings of his cervical 

spine and shoulder. Dr. Gordon diagnosed spondylosis without cervical myelopathy, shoulder 

pain, cervical radiculopathy, cervical postlaminectomy syndrome, cervicocranial syndrome, 

lumbar radiculopathy, low back pain, and cervicalgia. He noted that he administered epidural 

steroid injections. 

By decision dated April 14, 2014, an OWCP hearing representative denied appellant’s 

request for review of the written record because it was not filed within 30 days of the January 14, 

2014 decision. She also explained that OWCP, in its discretion, carefully considered his request 

and determined that the issue in his claim could equally well be addressed by requesting 

reconsideration and submitting evidence not previously considered by OWCP. 

In a June 13, 2014 letter, appellant’s representative at the time advised OWCP that he 

would be representing appellant regarding his workers’ compensation claim and requested a 

copy of appellant’s entire compensation file. OWCP received a June 4, 2014 authorization of 

representation signed by appellant. 

On December 16 and 29, 2014 appellant, through his representative, requested 

reconsideration of the January 14, 2014 decision. The representative asserted that appellant 

provided a statement which itemized the actions he performed during the escape from an active 

shooter on his work premises. He noted that, even though the statement was not extremely 
4

detailed, it sufficiently outlined the events as they occurred. The representative alleged that 

appellant had submitted sufficient evidence to establish the elements of fact of injury and 

performance of duty. He related that appellant’s treating physicians would forward medical 

reports to support causal relationship. 

By decision dated March 31, 2015, OWCP affirmed the denial of appellant’s claim with 

modification. It found that the evidence of record was sufficient to support that the 

September 16, 2013 incident occurred as alleged, but denied his claim because the medical 

evidence submitted failed to establish that his diagnosed condition was causally related to the 

accepted incident. OWCP mailed the March 31, 2015 decision to appellant and his 

representative to their last known addresses of record. 

In a letter dated August 25, 2015, appellant’s representative related that appellant had 

requested reconsideration of the January 14, 2014 decision, which OWCP acknowledged receipt 

of on January 9, 2015. He reported that since then it appeared that no development had taken 

place. On September 2, 2015 OWCP resent a copy of the March 31, 2015 OWCP decision to 

appellant. 

On October 6, 2015 appellant’s then representative resubmitted the August 25, 2015 

letter and indicated that it was his second request. In a letter dated October 8, 2015, OWCP 

informed him that a decision was originally mailed to his office on March 31, 2015. It noted that 

it was attaching a copy of the decision. 

On August 29, 2016 appellant again requested reconsideration. In an August 8, 2016 

report, Dr. Gordon indicated that he had treated appellant for lumbar spondylosis with 

radiculopathy, cervical postlaminectomy syndrome, myofascial pain, shoulder pain, and occipital 

neuralgia since October 28, 2013. He described the September 16, 2013 employment incident 

and related that appellant sustained these injuries at work on September 16, 2013. Dr. Gordon 

noted that the activities of “lifting and assisting several adults over the wall in which [appellant] 

engaged would have placed severe strain [on] the bilateral shoulders, neck, and low back.” 

By decision dated September 7, 2016, OWCP denied appellant’s August 29, 2016 

reconsideration request because it was untimely filed and failed to demonstrate clear evidence of 

error. It explained that because his reconsideration request of OWCP’s March 31, 2015 merit 

decision was received on August 29, 2016 it was not filed within the one-year time limitation. 

OWCP further found that appellant’s reconsideration request and evidence submitted failed to 

demonstrate clear evidence that OWCP’s decision was in error. 

LEGAL PRECEDENT 

OWCP regulations provide that, to be entitled to a merit review of an OWCP decision, an 

application for reconsideration must be received within one year of the date of OWCP’s decision 

for which review is sought.3

 It, however, may not deny an application for review solely because 

the application was untimely filed. OWCP may consider an untimely application for 

 3

 20 C.F.R. § 10.607(a); 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. 5 U.S.C. § 8128(a); Leon D. 

Faidley, Jr., 41 ECAB 104, 111 (1989). 
5

reconsideration if the evidence or argument contained in the reconsideration request 

demonstrates clear evidence of error on the part of OWCP.4 In this regard, it will conduct a 

limited review of how the newly submitted evidence bears on the prior evidence of record.5 

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to demonstrate clear evidence of error.6

 

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

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

must manifest on its face that OWCP committed an error.7

 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.8

 The evidence 

submitted must not only be of sufficient probative value to create a conflicting medical opinion 

or establish a clear procedural error, but 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 has held that even 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.10 

OWCP procedures further provide that the term clear evidence of error is intended to represent a 

difficult standard.11 If clear evidence of error has not been presented, it should deny the 

application by letter decision, which includes a brief evaluation of the evidence submitted and a 

finding made that clear evidence of error has not been shown.12

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.13 

ANALYSIS 

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

reconsideration was untimely filed. OWCP received his request for reconsideration on 

 4 See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

5 Id. at § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992). 

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

7

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

8 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

10 A.R., Docket No. 15-1598 (issued December 7, 2015). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5a (October 2011). 

12 Id. 

13 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993). 
6

August 29, 2016, which was outside the one-year time limit from March 31, 2015.14 

Consequently, appellant must demonstrate clear evidence of error by OWCP in denying his 

claim for compensation.15 

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

request for reconsideration does not raise a substantial question as to the correctness of OWCP’s 

March 31, 2015 decision and is therefore insufficient to demonstrate clear evidence of error. 

In its most recent merit decision, OWCP denied appellant’s traumatic injury claim 

because the medical evidence of record failed to demonstrate a causal relationship between his 

diagnosed conditions and the accepted September 16, 2013 employment incident. It determined 

that Dr. Gordon did not provide any medical rationale to establish that the September 16, 2013 

employment incident caused or contributed to appellant’s various medical conditions. Along 

with his most recent reconsideration request, appellant provided an August 8, 2016 report by 

Dr. Gordon. Dr. Gordon related that appellant sustained his injuries at work on September 16, 

2013 when he physically assisted several dozen women over a wall. 

The Board finds that this evidence fails to demonstrate clear evidence of error. Although 

Dr. Gordon’s August 8, 2016 report provided a more detailed description of the accepted 

incident, this report 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, wellrationalized 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 Consequently, this report is insufficient to demonstrate clear error by OWCP 

with respect to the denial of his traumatic injury claim. 

The Board has found that the term “clear evidence of error” is intended to represent a 

difficult standard.17 It is not enough merely to show that the evidence could be construed so as 

to produce a contrary conclusion.18 The evidence submitted 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.19 For the reasons provided above appellant has failed 

to do so. 

On appeal, appellant alleges that he did not receive notification of the March 31, 2015 

decision. He indicated that he had to request a copy of the case record from OWCP and it took 

over one month to receive it. Appellant asserted that he should not be held accountable for the 

 14 See supra note 11 at Chapter 2.1602(4) (October 2011). For decisions issued on or after August 29, 2011, the 

one-year period begins on the date of the original decision, and the application for reconsideration must be received 

by OWCP within one year of the date of its decision for which review is sought. 

15 Supra note 10; Debra McDavid, 57 ECAB 149 (2005). 

16 Supra note 10. 

17 James R. Mirra, 56 ECAB 738 (2005); supra note 11. 

18 Supra note 14. 

19 Supra note 15. 
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government’s lack of response. The Board finds, however, that the March 31, 2015 decision was 

sent to appellant and his representative at their respective last known addresses of record. In the 

absence of evidence to the contrary, a letter properly addressed and mailed in the regular course 

of business is presumed to have arrived at the mailing address in due course. This is known as 

the mailbox rule.20 The Board finds that the record contains no indication that the March 31, 

2015 decision was returned as nondeliverable. Consequently, under the mailbox rule, it is 

presumed that appellant and his representative both received their respective copies of the 

decision. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 11, 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 

 20 See e.g., Kenneth E. Harris, 54 ECAB 502 (2003).