United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Tampa, FL, Employer 

__________________________________________ 

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Docket No. 17-0053 

Issued: March 23, 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 14, 2016 appellant filed a timely appeal from a September 15, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was rendered by the Board on June 15, 2015, which became final after 30 days of 

issuance, and is not subject to further review.1

 Pursuant to the Federal Employees’ 

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d), the Board lacks 

jurisdiction over the merits of this case. 

ISSUE 

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

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

 1

 20 C.F.R. § 501.6(d); see R.M., Docket No. 14-1213 (issued October 15, 2014). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. The facts and the circumstances from 

the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. 

OWCP accepted that on June 17, 2013 appellant, then a 55-year-old nursing assistant, 

sustained a closed fracture of the distal phalanx of the left great toe. He filed a claim for a 

recurrence of disability (Form CA-2a) commencing December 2, 2013. Appellant stopped work 

on February 3, 2014 and subsequently resigned from federal employment. 

In a decision dated December 18, 2014, OWCP closed appellant’s case effective that 

date, finding that the accepted fracture had resolved as of June 6, 2014, based on the opinion of 

Dr. Eve N. Hanna, an attending physician Board-certified in emergency medicine. Appellant 

appealed to the Board, contending that he remained totally disabled from work due to the 

accepted left great toe fracture.3

By decision and order issued June 15, 2015,4 the Board affirmed OWCP’s December 18, 

2014 decision, finding that there was no medical evidence of record establishing that the 

accepted fracture disabled appellant from work on and after December 18, 2014 or that it 

required additional medical treatment. 

Appellant continued to submit letters asserting that his condition had not resolved and 

that his claim had been improperly developed. He also resubmitted medical reports previously 

of record and evidence that predated his June 17, 2013 work injury. The evidence also included 

August 30 and October 28, 2013 radiology reports for the great toes, right knee, and right ankle. 

In the August 30, 2013 right ankle x-ray report, Dr. Aaron Andrews, a diagnostic radiologist, 

noted that appellant had a history of an injury two months earlier and that he had a “loud pop 

after stretching yesterday.” 

In letters received by OWCP on June 24 and August 26, 2016, appellant requested 

reconsideration. He contended that the accepted fracture led to a worsening of diabetic 

conditions. Appellant also alleged that the employing establishment deliberately obstructed his 

claim. 

By decision dated September 15, 2016, OWCP denied appellant’s request for 

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

found that appellant’s first letter requesting reconsideration was received on June 24, 2016, more 

than one year after the Board’s June 15, 2015 merit decision, the final merit decision in the 

claim. 

 3

 During the pendency of the prior appeal, appellant submitted treatment notes from the employing establishment 

addressing back conditions, knee conditions, and the June 17, 2013 fracture, dated from 2006 through 

November 20, 2013. 

4

 Docket No. 15-0711 (issued June 15, 2015), Order Denying Petition for Reconsideration, Docket No. 15-0711 

(issued November 13, 2015). 
3

LEGAL PRECEDENT 

Section 8128(a) of FECA5 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.6

 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.7

 OWCP, through regulation, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that it will not 

review a decision denying or terminating a benefit unless the application for review is timely. In 

order to be timely, a request for reconsideration must be received by OWCP within one year of 

the date of the last merit decision for which review is sought. Timeliness is determined by the 

document receipt date of the reconsideration request (the received date) in the Integrated Federal 

Employee’s Compensation System (iFECS).8 The Board has found that the imposition of this 

one-year time limitation does not constitute an abuse of the discretionary authority granted 

OWCP under 5 U.S.C. § 8128(a).9

In those cases where requests for reconsideration are untimely filed, OWCP must 

nevertheless undertake a limited review of the case to determine whether there is clear evidence 

of error pursuant to the untimely request in accordance with section 10.607(b) of its regulation.10 

OWCP regulations and procedures state that it will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in OWCP’s regulation, if the claimant’s 

request for reconsideration demonstrates “clear evidence of error” on the part of OWCP.11

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

issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must be manifest on its face that OWCP committed an error.13 Evidence which does not raise a 

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

clear evidence of error.14 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.15 This entails a limited review by OWCP of how the 

 5

 5 U.S.C. § 8128(a). 

6 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

7 Id.; see also Jesus D. Sanchez, 41 ECAB 964 (1990). 

8

 20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority; 

see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990). 

9

 5 U.S.C. § 10.607(b); supra note 7. 

10 Supra note 6. 

11 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.5 (February 2016) 

12 Supra note 6. 

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

14 Jesus D. Sanchez, supra note 7. 

15 Supra note 13. 
4

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

and whether the new evidence demonstrates clear error by OWCP.16 The Board must make an 

independent determination of whether a claimant has submitted clear evidence of error on the 

part of OWCP such that OWCP abused its discretion in denying merit review in the face of such 

evidence.17

ANALYSIS 

On June 24, 2016 appellant requested reconsideration regarding his claim for recurrence 

of disability. The Board finds that as more than one year elapsed from the most recent merit 

decision on this issue, the June 15, 2015 merit decision, and appellant’s request for 

reconsideration received by OWCP on June 24, 2016, his request for reconsideration was 

untimely filed.18

The Board also finds that appellant failed to demonstrate clear evidence of error. On 

reconsideration appellant contended that the accepted fracture worsened his diabetic conditions, 

and that the employing establishment obstructed his claim. 

In its June 15, 2015 merit decision, the Board affirmed a December 18, 2014 merit 

decision of OWCP finding that appellant’s accepted condition had resolved and that he had not 

established disability from work on and after December 18, 2014 due to the accepted condition. 

Absent further merit review of his issue by OWCP pursuant to section 8128 of FECA, this issue 

is res judicata.

19

On reconsideration, appellant asserted that his condition had worsened and that OWCP 

had improperly handled his claim. He provided similar letters following OWCP’s December 18, 

2014 decision. The term clear evidence of error is intended to represent a difficult standard, and 

the argument appellant provided on reconsideration is not the type of positive, precise, and 

explicit evidence which manifested on its face that OWCP committed an error.20 Appellant’s 

argument is of insufficient probative value to shift the weight in his favor and raise a substantial 

question as to the correctness of OWCP’s December 18, 2014 merit decision. Likewise medical 

evidence submitted by appellant after OWCP’s December 18, 2014 merit decision is insufficient 

to demonstrate clear evidence of error. With regard to evidence previously of record, appellant 

did not explain how such evidence raised a substantial question as to the correctness of OWCP’s 

decision.21 Although appellant submitted radiology reports not previously of record, this 

evidence neither addressed the cause of his condition, nor related his symptoms to a nonwork 

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

17 Gregory Griffin, supra note 8. 

18 See supra note 11 at Chapter 2.1602.4a (February 2016), which provides that a right to reconsideration within 

one year accompanies any subsequent merit decision, including any merit decision by the Board. 

19 A.B., Docket No. 16-0864 (issued November 16, 2016). 

20 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

21 See S.E., Docket No. 16-1258 (issued December 5, 2016). 
5

event, stretching. As noted, the term clear evidence of error is intended to represent a difficult 

standard. The Board finds that this evidence does not rise to the level of clear evidence of error. 

On appeal, appellant contends that OWCP violated federal and international law by 

denying his FECA claim, as the Social Security Administration and Department of Veterans 

Affairs had issued him disability benefits for service-related conditions. However, the 

determination of an employee’s rights or remedies under other statutory authorities does not 

establish entitlement to benefits under FECA.22 Appellant also argues that OWCP’s denial of his 

claim violated his constitutional rights. As the Board is an administrative body, it does not have 

the jurisdiction to review a constitutional claim.23

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration 

because 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 September 15, 2016 is affirmed. 

Issued: March 23, 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 

 22 H.S., 58 ECAB 554 (2007). 

23 Andrew Fullman, 57 ECAB 574 (2006).