United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

LACKLAND AIR FORCE BASE, TX, Employer

__________________________________________

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Docket No. 19-0021

Issued: May 6, 2019

Appearances: Case Submitted on the Record

Wayne Johnson, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 3, 2018 appellant, through counsel, filed a timely appeal from an April 6, 2018 

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

days has elapsed from OWCP’s last merit decision, dated March 28, 2017, 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 over the merits of this case.

 

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, 

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

FACTUAL HISTORY

On February 14, 2017 appellant, then a 40-year-old air conditioning equipment mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that on November 16, 2016 he sustained a 

ruptured lumbar disc when he climbed a ladder to access the blower compartment of an air 

handling unit while in the performance of duty. On the reverse side of the claim form, the 

employing establishment indicated that he stopped work on November 16, 2016. 

Appellant was initially treated on November 17, 2016 by Raul Canales Jr., a physician 

assistant. Mr. Canales noted that appellant had pain radiating from his upper back to his chest for 

one week, with left arm numbness. He also noted “no trauma/injury.” 

By development letter dated February 21, 2017, OWCP informed appellant that the 

evidence submitted was insufficient to establish his claim. It advised him of the additional factual 

and medical evidence needed to support his claim. OWCP afforded appellant 30 days to submit 

the necessary evidence.

In a January 16, 2017 report, Dr. Ralph De La Rosa, Board-certified in family medicine, 

noted that appellant was disabled from work from January 16 through February 2, 2017. 

In an attending physician’s report (Form CA-20) dated March 21, 2017, Dr. De La Rosa, 

diagnosed extruded disc on the right L2 extending superior from L2-3. He checked a box marked 

“yes” indicating that he believed that appellant’s condition was caused or aggravated by the 

November 16, 2016 employment incident. Dr. De La Rosa also noted that appellant’s acute lower 

back injury was related to the injury that occurred at work on November 16, 2016. He related that 

appellant’s period of partial disability was for the period November 17, 2016 to January 11, 2017, 

and that from January 11, 2017 and onward appellant was totally disabled and could not return to 

work. Dr. De La Rosa checked a box marked “yes” when asked whether appellant had a history 

or if there was evidence of concurrent or preexisting injury, and noted that his paroxysmal atrial 

fibrillation was aggravated by the extruded disc at L2-3. 

In a separate report dated March 21, 2017, Dr. De La Rosa diagnosed lumbar disc 

herniation with radiculopathy and chronic paroxysmal atrial fibrillation. 

By decision dated March 28, 2017, OWCP denied appellant’s claim, finding that he had 

not submitted evidence containing a medical diagnosis causally related to the accepted 

November 16, 2017 employment incident. It noted that appellant’s treating physician neither 

provided a complete history of appellant’s injury, nor a well-reasoned medical opinion supported 

by objective findings explaining how the diagnosed conditions had been caused or aggravated by 

the November 16, 2016 employment incident. 
3

On March 30, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

March 28, 2017 decision and submitted additional medical evidence and argument along with his 

request. 

In an April 25, 2017 report Dr. Sarah E. Trampota, Board-certified in anesthesiology and 

pain management, related that appellant’s pain began suddenly in January 2017 when he was at 

home. She diagnosed chronic pain syndrome, intervertebral disc degeneration lumbosacral region, 

spondylosis lumbosacral region, myalgia, and neuralgia. 

In reports dated May 15 and 22, 2017, Dr. Trampota, related that she had performed rightsided L2, L3, and L4 transforaminal epidural steroid injections. She again indicated diagnoses of 

chronic pain syndrome, pain in limb, lumbosacral intervertebral disc degeneration, and 

lumbosacral spondylosis. On June 6, 2017 Dr. Trampota related that appellant’s symptoms had 

improved by 40 percent since his epidural injections. 

By decision dated April 6, 2018, OWCP denied appellant’s reconsideration request, 

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.3 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.4 The one-year period begins on the next day after the date of 

the originally contested decision.5 In addition, when determining the one-year period for 

requesting reconsideration, the last day of the period should be included unless it is a Saturday, a 

Sunday, or a legal holiday.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).7 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 

 

3 5 U.S.C. § 8128(a); J.W., Docket No. 18-0703 (issued November 14, 2018); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4 20 C.F.R. § 10.607(a).

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

6

Id. See M.A., Docket No. 13-1783 (issued January 2, 2014).

7 Supra note 5 at Chapter 2.1602.4(b) (February 2016).

8

J.W., supra note 3; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
4

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.11 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.12 Evidence which does not raise a 

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

clear evidence of error.13 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.14 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.15 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.16

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

difficult standard.17 The claimant must present evidence which on its face shows that OWCP made 

an error. 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.18 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.19

ANALYSIS

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.

 

9 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10 G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supra note 5 at Chapter 2.1602.5 

(February 2016).

11 J.D., Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).

12 Id.; see also Leona N. Travis, 43 ECAB 227 (1991).

13 J.D., supra note 11; Jimmy L. Day, 48 ECAB 652 (1997).

14 Id.

15 Id.

16 J.W., supra note 3; Robert G. Burns, 57 ECAB 657 (2006).

17 Supra note 12.

18 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

19 D.S., Docket No. 17-0407 (issued May 24, 2017).
5

Appellant had one year from OWCP’s March 28, 2017 decision to timely request 

reconsideration. He, therefore, had until Wednesday, March 28, 2018 to timely request 

reconsideration. As OWCP did not receive appellant’s reconsideration request until March 30, 

2018, more than one year after the March 28, 2017 merit decision, it was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error by OWCP in the denial of his

claim.20

Appellant submitted reports from Dr. Trampota dated April 25, May 15 and 22, and June 6, 

2017 as well as counsel’s argument dated March 30, 2018. The underlying issues in this case are 

medical in nature, namely whether appellant had established a medical diagnosis causally related 

to the accepted November 16, 2016 employment incident. Dr. Trampota related and reiterated her 

diagnoses, but failed to provide a medical opinion explaining how the diagnosed conditions were 

caused or aggravated by the accepted November 16, 2016 employment incident. Rather, in her 

April 25, 2017 report, she related that appellant’s pain began in January 2017 at home. Thus this 

report is insufficient to establish clear evidence of error by OWCP in its March 28, 2017 decision.

Counsel’s argument in his March 30, 2018 letter regarding the probative value of the 

medical evidence is also insufficient to shift the weight of the evidence in appellant’s favor and 

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

which lacks evidentiary value.

21

Clear evidence of error is intended to represent a difficult standard. The submission of a 

detailed, well-rationalized medical report which, if submitted before the merit decision was issued, 

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.22 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.23

For these reasons, the Board finds that appellant has not demonstrated clear evidence of 

error by OWCP in its March 28, 2017 decision. Consequently, OWCP properly performed a 

limited review of his argument to ascertain whether it demonstrated clear evidence of error, 

correctly determined that it did not, and denied his untimely request for a merit reconsideration.

24

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.

 

20 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

21 B.H., Docket No. 15-0978 (issued October 22, 2015). 

22 Supra note 17.

23 Supra note 19.

24 See W.A., Docket No. 18-0297 (issued July 18, 2018). 
6

ORDER

IT IS HEREBY ORDERED THAT the April 6, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 6, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board