United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.V., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

PATRICK AIR FORCE BASE, FL, Employer

__________________________________________

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Docket No. 19-0588

Issued: August 5, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 17, 2019 appellant filed a timely appeal from an August 2, 2018 nonmerit 

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

elapsed from OWCP’slast merit decision, dated June 14, 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 over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional 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 denied appellant’s request for reconsideration, 

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

FACTUAL HISTORY

On September 27, 2016 appellant, then a 48-year-old computer engineer, filed a traumatic 

injury claim (Form CA-1) alleging that on September 23, 2016 he sustained a soft tissue injury of 

the left knee and surrounding area while participating in a work-related team-building event at an 

offsite location. He noted that at time of injury he was attempting to high step over logs 

horizontally stacked at abdomen height by kicking one leg over, readjusting his balance, and 

kicking his other leg over. Appellant claimed that during the second kicks he felt a pop in his left 

leg and then he could not bear full weight on his left leg. He also experienced constant ache, dull 

pain, stiffness, and inflammation around his left knee. Appellant related that he required medical 

treatment to obtain a better diagnosis. He stopped work on September 26, 2016. 

Appellant submitted factual and medical evidence in support of his claim. In a medical 

report dated November 15, 2016, Dr. Luc Teurlings, an attending Board-certified orthopedic 

surgeon, noted that appellant presented with left knee complaints. He advised that appellant 

reported an injury that occurred during team-building activities on an obstacle course at work on 

September 23, 2016. Dr. Teurlings related that appellant noted that he had to maneuver himself 

over a beam and that he landed on his knee and heard it pop. He indicated that appellant described 

his symptoms since his injury as popping, stiffness, and swelling with moderate-to-severe pain 

intensity depending on an activity of the left knee. Appellant also described pain with sitting,

standing, bending, using stairs, and engaging in twisting activities. Dr. Teurlings discussed 

findings on physical examination of the left knee. He provided impressions of left knee medial 

meniscus tear with grade 4 chondromalacia patella and grade 2 chondromalacia in the medial 

compartment. Dr. Teurlings recommended left knee arthroscopy and that appellant continue to 

perform only desk work.3 On December 6, 2016 he requested that OWCP authorize left knee 

arthroscopic surgery. 

In a development letter dated January 25, 2017, OWCP advised appellant that when his 

claim was submitted it appeared to be a minor injury that necessitated minimal or no lost time from 

work and payment of a limited amount of medical expenses had been administratively approved. 

It explained that his claim was being reopened because he requested authorization for surgery. 

OWCP further explained that the evidence submitted was insufficient to establish appellant’s claim 

because the Form CA-1 he filed was illegible and, thus, there were not enough details regarding 

his injury. It advised him of the type of factual and medical evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to respond. 

OWCP subsequently received additional medical and factual evidence. In e-mails dated 

August 2 and September 6 and 7, 2016, the employing establishment noted that slots were still 

 

3 A January 11, 2017 Form CA-3 (report of work status) indicated that appellant returned to full-time, modifiedduty work on October 4, 2016. 
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available for the team-building event and that appellant’s supervisor, M.H., had signed up his team 

to participate in the event. 

On January 18, 2017 appellant responded to OWCP’s January 25, 2017 development 

questionnaire. He described the events on September 23, 2016, explaining that he and his 

workgroup colleagues participated in an approved offsite team-building work event. Appellant 

related that their supervisor signed them up for the event. He further related that the team-building 

exercise was strongly recommended by management. Appellant reiterated that he heard a pop in 

his left knee and immediately experienced pain in the knee while participating in a high-step-over 

element of a course. He also reiterated that he could not put full weight on his left leg. Appellant 

completed the rest of the course with the help of his teammates. Thereafter, he notified M.H. and 

Colonel C. about his injury for which he subsequently sought medical treatment. 

Appellant submitted additional factual and medical evidence, including a legible Form CA1 for his claimed September 23, 2016 traumatic left knee injury. In a January 18, 2017 report,

Dr. Teurlings restated his prior impressions of left knee meniscus tear with grade 4 chondromalacia 

patella and grade 2 chondromalacia in the medial compartment.

By decision dated January 25, 2017, OWCP accepted that the September 23, 2016 incident 

occurred as alleged and that a medical condition had been diagnosed in connection with the injury 

or event. However, it denied appellant’s claim, finding that the evidence of record was insufficient 

to establish that he sustained an injury and/or medical condition that arose during the course of 

employment and within the scope of compensable work factors as defined by FECA. OWCP

concluded, therefore, that “Performance of Duty, has not been met.”

On March 16, 2017 appellant requested reconsideration and submitted additional factual 

and medical evidence. In an undated memorandum, the Commander, Colonel S.G., noted that 

appellant was injured while performing his official duties on September 23, 2016 and that his 

injuries required medical attention, including surgery. Further, he related that the September 23, 

2016 incident was a valid team-building and leadership development exercise. Colonel S.G.

indicated that he authorized all civilian participants to take part in this event as part of their regular 

duties. 

By decision dated June 14, 2017, OWCP modified its January 25, 2017 decision, finding 

that appellant had established that he was in the performance of duty on September 23, 2016 based 

on Colonel S.G.’s statement. The claim, however, remained denied as the medical evidence of 

record did not contain a rationalized opinion explaining how or why his diagnosed left knee 

condition was causally related to the accepted September 23, 2016 employment incident. 

On June 19, 2018 appellant requested reconsideration. He contended that Dr. Teurlings’

reports dated November 15, 2016, January 18, 2017, and May 1, 20184established that he 

sustained a left knee injury which necessitated surgery due to the accepted September 23, 2016 

employment incident. 

 

4 The Board notes that the record does not contain a May 1, 2018 report from Dr. Teurlings.
4

Appellant submitted a letter, memorandum, and e-mails dated February 22, 23, and 24, 

2017 from the employing establishment which indicated that the September 23, 2016 teambuilding event was work related and that he sustained an injury during the event.

Appellant also submitted an operative note dated February 13, 2017 from Dr. Teurlings 

who performed a left knee partial medial meniscectomy. His preoperative and postoperative

diagnoses were left knee medial meniscus tear.

Appellant resubmitted the employing establishment’s August 2, September 6 and 7 2016

e-mails, Colonel S.G.’s undated statement, his January 18, 2017 response to OWCP’s 

development questionnaire, and Dr. Teurlings’ November 15, 2016 report. 

By decision dated August 2, 2018, OWCP denied appellant’s request for reconsideration, 

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

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further

merit review.5 This discretionary authority, however, is subject to certain restrictions. For

instance, a request for reconsideration must be received within one year of the date of OWCP’s

decision for which review is sought.6 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).

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Imposition of this one-year filing limitation does

not constitute an abuse of discretion.8

OWCP may not deny a reconsideration request solely because it was untimely filed. When

a claimant’s application for review is untimely filed, it must nevertheless undertake a limited

review to determine whether it demonstrates clear evidence of error.

9

 If an application 

demonstrates clear evidence of error, it will reopen the case for merit review.10

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. Evidence that does not raise a substantial 

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

 

5 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

6 20 C.F.R. § 10.607(a).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.

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

9 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

10 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also id. at § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).
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evidence of error. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary conclusion. This entails a limited review by OWCP of how the evidence 

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

the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence 

of error, 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.11

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP made 

an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, 

well-rationalized medical report which, if submitted before the denial was issued, would have 

created a conflict in medical opinion requiring further development, is not clear evidence of error.12 

The Board makes an independent determination of whether a claimant has demonstrated clear 

evidence of error on the part of OWCP.13

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.

OWCP’s regulations14 and procedures15 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.16 

The most recent merit decision was OWCP’s June 14, 2017 decision which modified its prior 

denial of appellant’s traumatic injury claim to reflect that he had established that he was in the 

performance of duty on September 23, 2016, but the claim remained denied because the medical 

evidence of record was insufficient to establish causal relationship between his diagnosed left knee 

conditions and the accepted September 23, 2016 employment incident. As his request for 

reconsideration was not received by OWCP until June 19, 2018, more than one year after the 

June 14, 2017 decision, the Board finds that it was untimely filed. Because appellant’s request 

was untimely, he must demonstrate clear evidence of error on the part of OWCP in having denied 

his traumatic injury claim. 

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

the part of OWCP in its last merit decision. As stated, OWCP denied his traumatic injury claim 

 

11 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

12 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

13 D.S., Docket No. 17-0407 (issued May 24, 2017).

14 20 C.F.R. § 10.607(a); see J.W., supra note 11; Alberta Dukes, 56 ECAB 247 (2005).

15 Supra note 7 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997). 

16 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
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as the medical evidence of record failed to establish that his diagnosed left knee conditions were 

causally related to the accepted September 23, 2016 employment incident.

Appellant’s argument in his untimely request for reconsideration regarding the weight of 

the medical evidence is insufficient to shift the weight of the evidence in his favor and raise a 

substantial question as to the correctness of OWCP’s decision because it constitutes a lay opinion

which lacks evidentiary value.17

The February 13, 2017 operative note of Dr. Teurlings submitted by appellant with his 

June 19, 2018 reconsideration request is also insufficient to demonstrate clear evidence of error

with respect to OWCP’s June 14, 2017 merit decision. This evidence, which merely addressed 

appellant’s left knee arthroscopic surgery, is insufficient to shift the weight of the medical 

evidence. 

Additionally, the employing establishment’s correspondences dated February 22, 23, and 

24, 2017, which acknowledged that the September 23, 2016 team-building event was work related 

and that appellant sustained an injury during the event, are also insufficient to establish that OWCP 

erred in its denial of his claim. The underlying issue in this case is medical in nature, namely 

whether the evidence of record establishes a left knee condition causally related to the accepted 

September 23, 2016 employment incident. This issue must be addressed by medical evidence.18 

The Board finds that this nonmedical evidence is insufficient to demonstrate clear evidence of 

error in the medical determination OWCP made in its June 14, 2017 decision.19

Appellant also submitted copies of the employing establishment’s August 2, 

September 6 and 7 and 2016 e-mails, Colonel S.G.’s undated statement, his January 18, 2017 

response to OWCP’s January 25, 2017 development questionnaire, and Dr. Teurlings’

November 15, 2016 report, which were previously of record. This evidence, however, does not 

manifest on its face that OWCP committed an error in its June 14, 2017 decision.20

The Board finds that the evidence submitted in support of the untimely request for 

reconsideration is insufficient to shift the weight of the evidence in favor of appellant’s claim or 

to raise a substantial question that OWCP erred in its June 14, 2017 decision. Accordingly, the

Board finds that OWCP properly denied his reconsideration request, as it was untimely filed and

failed to demonstrate clear evidence of error.

CONCLUSION

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

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

 

17 M.M., Docket No. 19-0021 (issued May 6, 2019); James A. Long, 40 ECAB 538 (1989).

18 See J.G., Docket No. 17-0709 (issued July 21, 2017).

19 Id.

20 See M.D., Docket No. 18-0017 (issued May 9, 2019); S.M., Docket No. 17-0385 (issued June 26, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 5, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board