United States Department of Labor

Employees’ Compensation Appeals Board

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E.B., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Tracy, CA, Employer

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Docket No. 18-1091

Issued: December 28, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 2, 2018 appellant filed a timely appeal from an April 9, 2018 nonmerit decision 

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

from the last merit decision, dated June 26, 2017, 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 to review the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted new evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id. 
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.

FACTUAL HISTORY

On December 3, 2013 appellant, then a 63-year-old distribution process worker, filed a 

traumatic injury claim (Form CA-1) alleging that on November 29, 2013 he lost his balance and 

fell onto the floor, pinning his left knee behind him and experiencing pain in both knees, while 

changing the position of forks on a forklift in the performance of duty.

On January 24, 2014 OWCP accepted the claim for bilateral knee and leg sprain of 

unspecified sites.

Appellant was placed off work on February 5, 2014 by Dr. Gary R. Wisner, an attending 

Board-certified orthopedic surgeon. He stopped work on that date. OWCP paid appellant wageloss compensation for temporary total disability on the supplemental rolls as of February 6, 2014.

On May 2, 2014 OWCP expanded acceptance of appellant’s claim to include left knee 

meniscus tear, current. It authorized arthroscopic left knee surgery performed by Dr. Wisner on 

July 8, 2014. OWCP continued to pay appellant wage-loss compensation for temporary total 

disability.

Dr. Wisner subsequently advised that appellant had continuing residuals of his accepted 

employment-related bilateral knee injuries that required medical treatment and that he remained 

totally disabled from work due to his work-related injuries.

In a December 4, 2014 medical report, Dr. Aubrey A. Swartz, a Board-certified orthopedic 

surgeon and OWCP referral physician, opined that appellant had no residuals of his accepted workrelated conditions and, while he could not perform his usual job, he could work eight hours a day 

with restrictions.

OWCP found a conflict in medical opinion between Dr. Wisner and Dr. Swartz regarding 

whether appellant had continuing employment-related residuals or disability necessitating referral 

to an impartial medical examiner, pursuant to 5 U.S.C. § 8123(a). In an August 25, 2015 report,

Dr. Arthur M. Auerbach, a Board-certified orthopedic surgeon, selected as the impartial medical 

examiner, opined that appellant no longer had residuals of his accepted November 29, 2013

employment injuries and, while he could not perform his usual job, he could work eight hours a 

day with permanent restrictions.

By decision dated January 21, 2016, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective that date, based on Dr. Auerbach’s August 25, 2015

opinion that appellant no longer had residuals or disability stemming from his work-related 

injuries.
3

In an appeal request form postmarked February 29, 2016 and received by OWCP on 

March 7, 2016, appellant requested a telephone hearing before a representative of OWCP’s Branch 

of Hearings and Review.

OWCP, by decision dated March 23, 2016, denied appellant’s request for a hearing, finding 

that his request was untimely filed because it was not made within 30 days of its January 21, 2016 

decision. It further indicated that it had exercised its discretion and further denied the request as 

the relevant issue of the case could equally well be addressed by requesting reconsideration and 

submitting evidence not previously considered by OWCP.

In an appeal request form received by OWCP on December 20, 2016, appellant requested 

reconsideration of the January 21, 2016 termination decision. By decision dated March 16, 2017, 

OWCP denied modification of its January 21, 2016 decision. It determined that appellant failed 

to submit rationalized medical evidence from a qualified physician as defined under FECA 

establishing causal relationship between the diagnosed medical condition and accepted 

employment injuries.

Appellant, in an appeal request form and letter received by OWCP on March 20, 2018, 

requested reconsideration of the March 16, 2017 decision. In his letter, he contended that enclosed 

reports from Dr. Qasim Aslam Barra and Dr. Yee Hisang Jeffrey Wang, Board-certified 

radiologists, were sufficient to establish that he had continuing residuals and disability related to 

his accepted injuries and to rebut the opinions of Dr. Swartz and Dr. Auerbach.

In a February 7, 2018 left knee magnetic resonance imaging (MRI) scan report, Dr. Barra 

provided an impression of severe patellofemoral compartment chondromalacia, focal thinning of 

the lateral aspect of the patella retinaculum which may be iatrogenic or represent sequela of prior 

injury, mild lateral compartment chondromalacia, and small joint effusion.

In a February 7, 2018 right knee MRI scan report, Dr. Wang provided an impression of 

lateral meniscal degenerative tearing with grade 3 chondromalacia lateral tibial plateau. He further 

provided an impression of focal grade 3 patellar chondromalacia and trace popliteal cyst.

By decision dated April 9, 2018, OWCP denied appellant’s 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, an 

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

decision for which review is sought.3 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s integrated Federal Employees’ Compensation System.4 The Board 

 

3 20 C.F.R. § 10.607(a).

4 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).
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has found that the imposition of the one-year time limitation does not constitute an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA.5

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.6 To 

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

that was decided by OWCP7and is positive, precise, and explicit, and is manifest on its face that 

OWCP committed an error.8 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.9

ANALYSIS

The Board finds that OWCP properly determined that appellant failed to file a timely

request for reconsideration. 

As noted, an application for reconsideration must be received within one year of the date 

of OWCP’s decision for which review is sought.10 As appellant’s request for reconsideration was 

not received by OWCP until March 20, 2018, more than one year after issuance of the March 16, 

2017 decision, the last merit decision by OWCP on the termination issue, it was untimely filed. 

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

compensation.

The Board further finds that appellant has failed to demonstrate clear evidence of error. 

With the March 20, 2018 reconsideration request, appellant maintained that the medical 

reports from Drs. Barra and Wang established continuing residuals and disability from his accepted 

November 29, 2013 employment injuries. The term “clear evidence of error” is intended to 

represent a difficult standard, and the argument provided here is not the type of positive, precise, 

 

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

6 M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 4 at Chapter 

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

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

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

9

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

10 See supra note 3.
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and explicit evidence which manifested on its face that OWCP committed an error.11 Even a 

detailed, well-rationalized medical report, which would have created a conflict in medical opinion 

requiring further development if submitted prior to issuance of the denial decision, does not 

constitute clear evidence of error.12 It is not enough to show that evidence could be construed so 

as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s 

favor.13

The MRI scan reports dated February 7, 2018 from Drs. Wang and Barra noted appellant’s 

right and left knee conditions. The reports do not raise any error in the underlying March 16, 2017

OWCP decision to terminate appellant’s wage-loss compensation and medical benefits as they do 

not address the relevant issue of whether appellant had any continuing residuals or disability 

causally related to his accepted November 29, 2013 employment injuries.

14

The Board finds that appellant has not raised an argument or submitted any evidence that 

manifests on its face that OWCP committed an error in terminating his wage-loss compensation 

and medical benefits effective January 21, 2016. Appellant has not provided evidence of sufficient 

probative value to raise a substantial question as to the correctness of OWCP’s decision. Thus, 

the evidence is insufficient to demonstrate clear evidence of error.15

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.

 

11 See supra note 4 at Chapter 2.1602.5 (February 2016); see Dean D. Beets, supra note 7.

12 See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

13 See M.N., Docket No. 15-0758 (issued July 6, 2015).

14 See B.C., Docket No. 16-1404 (issued April 14, 2017); F.R., Docket No. 09-0575 (issued January 4, 2010) 

(evidence that is not germane to the issue on which the claim was denied is insufficient to demonstrate clear evidence 

of error).

15 See M.B., Docket No. 17-1505 (issued January 9, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the April 9, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 28, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board