United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

SACRAMENTO MEDICAL CENTER, 

Mather, CA, Employer 

__________________________________________ 

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Docket No. 16-1627 

Issued: January 4, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 10, 2016 appellant, through counsel, filed a timely appeal from a July 15, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision, dated September 29, 2014, to 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 the 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. 

FACTUAL HISTORY 

On August 13, 2014 appellant, then a 49-year-old health technician, filed a traumatic 

injury claim (Form CA-1) alleging that on June 4, 2014 at 7:30 a.m. she slipped and almost fell 

in the parking lot. She noted that as she stepped out of her car and up onto the curb her foot 

slipped multiple times. Appellant alleged that she sprained her right ring finger, fractured her 

right hand, dislocated three middle toes, and bruised her right ankle. 

In a letter dated August 21, 2014, OWCP noted that appellant had not filed her traumatic 

injury claim within 30 days and was not entitled to continuation of pay (COP). In a separate 

letter of the same date, it requested additional factual and medical evidence supporting 

appellant’s traumatic injury claim. 

Dr. Christine Bosserman, an emergency medicine physician, examined appellant on 

September 12, 2014 and noted that appellant had slipped on the curb in the parking lot with 

multiple twists and falls without hitting the asphalt. She related that appellant had placed her 

right foot on the curb and slipped off three times while trying to move along the length of her 

car. Dr. Bosserman indicated that appellant injured her right foot, toes, ankle, right ring finger, 

and ribs. Appellant had initially received care from a podiatrist. This injury aggravated 

preexisting right ankle arthritis. Dr. Bosserman diagnosed right foot joint pain. 

By decision dated September 29, 2014, OWCP denied appellant’s traumatic injury claim 

finding that she had not established that the employment incident occurred as alleged due to 

delays in reporting the incident, delay in seeking medical treatment, and the failure to offer a 

clear description of the employment incident. It also noted that she failed to submit medical 

evidence of a diagnosed condition. 

Appellant submitted a narrative statement describing the events of June 4, 2014. She 

noted that she was parked in the nonpatient parking lot next to the curb. Appellant stepped out 

of her car with her right foot on the curb and her left foot on the asphalt. Her right foot slipped 

from the curb and twisted. Appellant repeated this motion twice more to get to the end of her 

car. Her right foot began hurting and she sprained her ring finger on her right hand. Appellant 

arrived at work at 7:30 a.m. and worked through lunch. She contacted her primary care 

physician who ordered x-rays, wrapped her foot, and referred her to a podiatrist. The podiatrist 

prescribed a cam walker which appellant wore for three weeks with no improvement. She then 

sought treatment from Dr. Bosserman. 

Dr. Kim Yen Vo, a Board-certified family practitioner, examined appellant on June 5, 

2014 for right foot pain. Appellant included e-mails dated June 5, 2014 between Dr. Vo and 

appellant noting that she had slipped the previous week and was experiencing ankle pain after 

her foot slid off the curb and twisted. Appellant indicated that she had experienced this pain for 

three days. On June 6, 2014 Dr. Vo provided results on examination and diagnosed right foot 
3

pain caused by slipping, tripping, or stumbling as well as right ankle arthritis and adjustment 

disorder with anxiety. She listed appellant’s date of injury as May 28, 2014 when she was 

stepping out from her car onto the curb and her right foot slipped with right ankle inversion. 

Appellant also provided her treatment notes from Dr. Jake Lee, a podiatrist, beginning on 

July 18, 2014. 

Dr. Bosserman completed a report on October 6, 2014 and found moderate degenerative 

osteoarthrosis of the anterior medial tibiotalar joint and mild-to-moderate degenerative 

osteoarthrosis of the posterior subtalar joint. She again diagnosed right foot joint pain. 

Dr. Masoud Ghalambor, a Board-certified orthopedic surgeon, examined appellant on 

October 24, 2014. He described her history of injury as falling off a curb at work on June 4, 

2014 injuring her right foot. Dr. Ghalambor found very limited range of motion in the right 

ankle and crepitus with movement. He diagnosed closed fracture of the right metatarsal bones, 

traumatic arthropathy right ankle and foot with metatarsal stress fracture, and preexisting right 

ankle post-traumatic arthritis and talus fracture malunion. Dr. Ghalambor found that as a result 

of her industrial injury appellant sustained an overloading of the right lateral foot with stress 

fracture formation in the fourth and fifth metatarsals. On December 1, 2014 he noted that 

appellant had experienced improvement with the cam walker and should continue to wear this 

device. 

Appellant requested an oral hearing from OWCP’s Branch of Hearings and Review on 

January 7, 2015. By decision dated February 23, 2015, the Branch of Hearings and Review 

denied appellant’s request for an oral hearing as it was untimely. 

In a letter dated January 22, 2016, counsel requested that OWCP rescind the 

September 29, 2014 decision based on a report from Dr. Ghalambor dated December 22, 2015. 

In this report, Dr. Ghalambor noted that he first examined appellant on October 24, 2014 and 

listed her date of injury as June 4, 2014. He indicated that the exact nature of appellant’s injury 

was unknown and that it was more than likely a twisting injury due to stepping off a curb. 

Dr. Ghalambor opined that, as a result of the twisting injury, appellant was bearing more weight 

on the outside of her foot and eventually developed stress fractures. He noted that appellant 

developed stress fractures as she had a preexisting severe arthritis of the right ankle and subtalar 

joint. 

On May 26, 2016 counsel noted that the motion to rescind should be considered a request 

for reconsideration. 

By decision dated July 15, 2016, OWCP declined to reopen appellant’s claim for 

consideration of the merits finding that the January 22, 2016 request for reconsideration was 

untimely filed and failed to demonstrate clear evidence of error on the part of OWCP. 
4

LEGAL PRECEDENT 

Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.4

 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.5

 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP 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 OWCP’s 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).6 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).7

In those cases where requests for reconsideration are untimely filed, the Board has held 

that OWCP must nevertheless undertake a limited review of the case to determine whether there 

is clear evidence of error pursuant to the untimely request.8 OWCP’s procedures provide that 

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing 

limitation set forth in OWCP’s regulations, if the claimant’s request for reconsideration 

demonstrates “clear evidence of error” on the part of OWCP.9

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

issue which was decided by OWCP.10 The evidence must be positive, precise and explicit and 

must be manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

demonstrate clear evidence of error.12 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.13 This entails a limited review by OWCP of 

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

 3

 5 U.S.C. § 8128(a). 

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

5 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

6

 20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(February 2016). G.F., Docket No. 15-1053 (September 11, 2015). 

7

 Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967. 

8 Supra note 4 at 770. 

9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016). 

10 Supra note 4. 

11 Leona N. Travis, 43 ECAB 227, 241 (1991). 

12 Jesus D. Sanchez, supra note 5 at 968. 

13 Supra note 11. 
5

record and whether the new evidence demonstrates clear error on the part of OWCP.14 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.15 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.16

ANALYSIS 

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. 

Counsel requested reconsideration of OWCP’s September 29, 2014 merit decision on 

January 26, 2016. As this request was not received within one year of the most recent merit 

decision, the Board finds that OWCP properly determined that it was untimely. 

The Board further finds that appellant’s request for reconsideration failed to demonstrate 

clear evidence of error. OWCP denied appellant’s traumatic injury claim finding as she had not 

established that the employment incident occurred as alleged. Following the September 29, 2014 

merit decision, appellant submitted a factual statement as well as medical evidence from 

Drs. Vo, Lee, and Ghalambor. This evidence casts further doubt on the timing of appellant’s 

alleged employment incident. Dr. Vo indicated that appellant sustained her right ankle injury on 

May 28, 2014. This date is in keeping with the e-mail correspondence between appellant and 

Dr. Vo in which appellant noted on June 5, 2014 that her ankle pain had continued over several 

days. 

Furthermore, Dr. Ghalambor’s December 22, 2015 note attributed appellant’s diagnosed 

stress fractures not to her employment incident, but rather to the act of walking on her right foot 

for several months after the initial injury. 

The Board finds that the additional evidence submitted by appellant does not shift the 

weight of the evidence in favor of the claimant nor does it raise a substantial question as to the 

correctness of OWCP’s decision. Therefore, appellant has failed to demonstrate clear evidence 

of error in her untimely request for reconsideration. 

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. 

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

15 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 

16 Nancy Marcano, 50 ECAB 110 (1998). 
6

ORDER 

IT IS HEREBY ORDERED THAT July 15, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: January 4, 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