United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.L., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, 

Nashville, AR, Employer 

__________________________________________ 

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Docket No. 17-0040 

Issued: January 24, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 14, 2016 appellant filed a timely appeal from a July 20, 2016 nonmerit 

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

elapsed from OWCP’s most recent merit decision dated May 4, 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 appellant’s claim.2 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim because her request 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 additional evidence after OWCP rendered its July 20, 2016 decision. The 

Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On July 25, 2011 appellant, then a 43-year-old food inspector, injured her lower back in 

the performance of duty when she pulled on a chair. OWCP accepted her traumatic injury claim 

for lumbar sprain. Appellant stopped work on July 25, 2011 and received continuation of pay 

through September 8, 2011. Additionally, OWCP paid wage-loss compensation for the period 

September 9 through November 30, 2011. In a prior appeal, the Board affirmed OWCP’s 

finding that appellant had not established entitlement to wage-loss compensation on or after 

December 1, 2011.3

 The Office of Personnel Management (OPM) approved appellant’s 

application for disability retirement, which was effective January 12, 2013.4

On September 26, 2013 appellant filed a claim for a schedule award (Form CA-7) due to 

the accepted July 25, 2011 lumbar injury. She did not submit any medical evidence containing a 

rating for permanent impairment around the time she filed her schedule award claim. 

By decision dated March 6, 2014, OWCP denied appellant’s claim for a schedule award 

due to her accepted July 25, 2011 work injury, sprain of the lumbar region. It found that she did 

not submit medical evidence establishing permanent impairment of a scheduled member due to 

her accepted work injury. 

Appellant requested reconsideration of the denial of her schedule award claim and, by 

decision dated May 4, 2015, OWCP denied modification of its March 6, 2014 decision finding 

that she did not establish permanent impairment of a scheduled member due to her accepted 

work injury. It discussed a series of medical reports appellant had submitted after March 6, 2014 

and found that none of the reports contained a rating for permanent impairment. 

In a handwritten letter dated April 28, 2016 and received by OWCP on May 9, 2016, 

appellant requested reconsideration of OWCP’s May 4, 2015 decision denying her schedule 

award claim. She discussed the pain symptoms in her back and left leg and asserted that she was 

entitled to schedule award compensation. In connection with her reconsideration request, 

appellant submitted reports concerning the treatment of her back condition, dated October 9, 

2013, April 24 and November 4, 2015, and April 12, 2016, which had not previously been 

considered by OWCP. She also submitted reports, dated between September 21, 2011 and 

August 6, 2013, which had previously been considered by OWCP. 

In a July 20, 2016 decision, OWCP denied appellant’s request for further review of the 

merits of her claim because her request was untimely filed and failed to demonstrate clear 

evidence of error. It determined that appellant’s reconsideration request was untimely because it 

was not received by OWCP until May 9, 2016, more than one year after issuance of its May 4, 

2015 merit decision. OWCP further found that the evidence and argument appellant submitted 

in support of her untimely reconsideration request did not demonstrate clear evidence of error in 

the May 4, 2015 decision. 

 3

 Docket No. 13-1227 (issued October 22, 2013). 

4

 OPM found that appellant was disabled from her position as a food inspector due to degenerative disc disease. 
3

LEGAL PRECEDENT 

 Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an 

award for or against payment of compensation at any time on his or her own motion or on 

application. The Secretary, in accordance with the facts found on review, may end, decrease or 

increase the compensation awarded; or award compensation previously refused or discontinued.5

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.6 However, OWCP will 

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

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. To establish clear evidence of error, a claimant must submit evidence 

relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and 

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

To show 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 shift the weight of the evidence in favor of the claimant 

and raise a substantial question as to the correctness of OWCP’s decision.8

 The Board notes that 

clear evidence of error is intended to represent a difficult standard.9

 Evidence that does not raise 

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

demonstrate clear evidence of error.10 It is not enough merely to establish that the evidence 

could be construed so as to produce a contrary conclusion.11 This entails a limited review by 

OWCP of the evidence previously of record and whether the new evidence demonstrates clear 

error on the part of OWCP.12 The Board makes an independent determination as to whether a 

claimant has demonstrated clear evidence of error on the part of OWCP.13

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.607(a). 

7 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

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

9 R.K., Docket No. 16-0355 (issued June 27, 2016). 

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

11 Id.

12 Id.

13 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 
4

ANALYSIS 

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

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s merit decision for which review is sought.14 As appellant’s request for 

reconsideration was not received by OWCP until May 9, 2016, more than one year after the 

issuance of its May 4, 2015 merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in its May 4, 2015 decision. 

Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing 

its May 4, 2015 decision. In the reconsideration request letter received by OWCP on May 9, 

2016, she discussed the pain symptoms in her back and left leg and asserted that she was entitled 

to schedule award compensation. In connection with her reconsideration request, appellant 

submitted reports concerning the treatment of her back condition, dated October 9, 2013, 

April 24 and November 4, 2015 and April 12, 2016, which had not previously been considered 

by OWCP. She also submitted reports, dated between September 21, 2011 and August 6, 2013, 

which had previously been considered by OWCP. 

Appellant did not submit the type of positive, precise and explicit evidence which 

manifests on its face that OWCP committed an error in its May 4, 2015 decision when it denied 

her schedule award claim.15 The evidence and argument she submitted did not raise a substantial 

question concerning the correctness of OWCP’s May 4, 2015 decision. None of the medical 

reports appellant submitted in connection with her reconsideration request contained a rating of 

permanent impairment. The question of appellant’s entitlement to schedule award compensation 

would generally be resolved through the submission of medical evidence and her mere assertion 

that she was entitled to schedule award compensation would not tend to show error by OWCP in 

its May 4, 2015 decision. Appellant did not explain how this evidence and argument raised a 

substantial question as to the correctness of OWCP’s May 4, 2015 decision. 

The Board finds that appellant’s application for review does not demonstrate on its face 

that OWCP committed error when it found in its May 4, 2015 decision that she did not establish 

permanent impairment of a scheduled member due to her accepted work injury.16 As noted, 

clear evidence of error is intended to represent a difficult standard.17 Other than simply 

reiterating her previous arguments, appellant has not met this standard in this case. 

For these reasons, the evidence submitted by appellant does not raise a substantial 

question concerning the correctness of OWCP’s May 4, 2015 decision and OWCP properly 

determined that appellant did not demonstrate clear evidence of error in that decision. 

 14 See supra note 6. 

15 See supra note 7. 

16 See S.F., Docket No. 09-0270 (issued August 26, 2009). 

17 See supra note 9. 
5

CONCLUSION 

 The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim because her request was untimely filed and failed to 

demonstrate clear evidence of error. 

ORDER 

 IT IS HEREBY ORDERED THAT the July 20, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 24, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board