United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.E., Appellant

and

DEPARTMENT OF AGRICULTURE, FARM & 

FOREIGN SERVICE AGENCY, Riverdale, MD, 

Employer

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Docket No. 18-1442

Issued: April 22, 2019

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 July 17, 2018 appellant filed a timely appeal from an April 10, 2018 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days has elapsed 

from OWCP’s last merit decision, dated September 14, 2011, to the filing of this appeal, pursuant 

 

1 On his application for review (Form AB-1), appellant timely requested an oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated March 6, 2019, the Board exercised its discretion and denied his request finding that the 

appeal could be adequately addressed in a decision based on a review of the case record. Order Denying Request for 

Oral Argument, Docket No. 18-1442 (issued March 6, 2019).
2

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.3

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 January 24, 2011 appellant, then a 59-year-old agriculture adviser, filed a traumatic 

injury claim (Form CA-1) alleging that on October 5, 2010 he sustained an “undiagnosed bad 

shoulder” injury when he fell down onto his shoulder when he was traveling back to the embassy 

in Afghanistan while in the performance of duty. He did not stop work. 

In a February 2, 2011 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the factual and medical evidence 

necessary to establish his claim and also provided a questionnaire for completion. OWCP afforded 

appellant 30 days to provide the necessary factual information and medical evidence. 

OWCP received the second page of its February 2, 2011 development letter with 

handwritten notations regarding appellant’s medical treatment. 

In a report dated February 11, 2011, Dr. Di Van Le, a Board-certified family practitioner, 

related appellant’s complaints of shoulder pain. He noted examination findings in the right 

shoulder of mild tenderness in the right subacromial area and biceps tendon. Dr. Le diagnosed 

shoulder sprain, shoulder joint pain, and tendinitis. He reported that a right shoulder x-ray scan 

showed osteoarthritis of the acromioclavicular joint, sprain, and tendinitis most likely secondary 

to heavy lifting at work. 

By decision dated March 17, 2011, OWCP denied appellant’s traumatic injury claim. It 

found that, because he had not responded to its questions regarding how and when the incident 

occurred and where he was traveling at the time, he had not established that his alleged injury 

occurred in the performance of duty. OWCP also noted that the factual evidence of record failed 

to establish that the October 5, 2010 incident occurred at the time, place, and in the manner alleged. 

In an appeal request form dated March 23, 2011, appellant requested a hearing before an 

OWCP hearing representative. A hearing was held on July 14, 2011. 

 

2 5 U.S.C. § 8101 et seq.

3 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. 
3

No additional evidence was received.

By decision dated September 14, 2011, an OWCP hearing representative affirmed the 

March 17, 2011 denial decision. He found that appellant had not established the elements of fact 

of injury, performance of duty, or causal relationship and therefore had not established his claim. 

On October 11, 2017 appellant requested reconsideration. In a statement dated October 2, 

2017, he indicated that he was providing additional evidence not previously considered. Appellant 

alleged that he sustained additional injuries, including post-traumatic stress disorder (PTSD). He 

explained that he was traveling from the United States (U.S.) to a camp in southern Afghanistan 

when he received an urgent message to gather all his gear and return to the U.S. Embassy in Kabul, 

Afghanistan (Embassy). Appellant related that the injury happened in the British transient camp 

when he was traveling with all his gear. He noted that he continued traveling to Kabul, 

Afghanistan with his injuries, which also included severe weakness and irregular heartbeat. 

Appellant indicated that, upon arrival at the Embassy, he was ordered to immediately return to the

U.S. He related that he was unable to see a physician or receive medical treatment because he was 

traveling. Appellant explained that when he returned to the U.S., he waited until he could get 

Medicare at age 65 before he sought medical treatment. He indicated that he also traveled to Saudi 

Arabia for help in recovering and still suffered from severe weakness and irregular heartbeat. 

Appellant submitted a series of e-mails dated from November 22, 2010 through 

February 20, 2011 explaining how he was discriminated against and forced to resign by the State 

Department. He alleged that the actions of the State Department caused him physical and 

emotional injuries. Appellant also requested assistance in filing a complaint against the State 

Department. 

OWCP received various diagnostic testing reports. A January 19, 2013 abdomen and 

pelvis computerized tomography scan showed complete occlusion of infra renal inferior vena cava 

(IVC), common iliac and external iliac veins with anterior abdominal collateral dilated veins, infra 

renal IVC filter with right limb perforating into the aortic lumen, and partial collapse of D12 and 

L1 vertebrae with degenerative changes. A January 22, 2013 radiology report of the lower 

extremities showed bilateral old partially recanalized deep venous thrombosis (DVT) of both lower 

limbs 

Appellant underwent additional diagnostic testing on July 29, 2016. An echocardiogram 

report showed atrial flutter rhythm, mildly dilated left ventricle, mild left ventricular hypertrophy, 

mildly enlarged right ventricle, and moderately dilated left atrium. A carotid report revealed 

minimal intimal thickening bilaterally with no evidence for significant carotid artery stenosis 

bilaterally. A bilateral lower extremity arterial report showed bilateral lower extremity arterial 

duplex, which suggested bilateral mild atherosclerosis with no significant obstruction, stenosis or 

occlusions. A July 29, 2016 vascular report of the lower extremities further revealed bilateral 

femoral proximal, mild and distal thrombophlebitis, and right popliteal partial thrombosis, and left 

posterior tibial thrombosis calf region. 

In an examination note dated October 6, 2016, Dr. Carlos Bechara, a Board-certified 

vascular surgeon, noted a diagnosis of DVT. 
4

By decision dated January 4, 2018, OWCP denied appellant’s reconsideration request 

finding that it was untimely filed and failed to demonstrate clear evidence of error in OWCP’s

September 14, 2011 decision.4 

LEGAL PRECEDENT

Section 8128(a) of FECA5 does not entitle a claimant to review of an OWCP decision as a 

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.8 

Timeliness is determined by the document receipt date of the request for reconsideration as is 

indicated by the “received date” in the integrated Federal Employees’ Compensation System 

(iFECS).9 OWCP will consider an untimely request for reconsideration only if the request 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.10 The 

request must establish on its face that such decision was erroneous.11 Where a request is untimely 

and fails to demonstrate clear evidence of error, OWCP will deny the request for reconsideration 

without reopening the case for a review of the merits.12

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.13 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion.14 The evidence submitted must not 

only be of sufficient probative value to create a conflict in medical opinion or demonstrate a clear 

procedural error, but must be of sufficient probative value to shift the weight of the evidence in 

 

4 On January 29, 2018 OWCP’s January 4, 2018 decision was returned to OWCP as undeliverable. On April 10, 

2018 it reissued the January 4, 2018 decision to appellant’s new address of record. 

5 Supra note 2. 

6 This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

9

Id. at Chapter 2.1602.4(b).

10 20 C.F.R. § 10.607(b).

11 Id. 

12 Id. at § 10.608(b).

13 Supra note 10; Fidel E. Perez, 48 ECAB 663 (1997).

14 See Leona N. Travis, 43 ECAB 227, 240 (1991).
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favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.15 

The Board has held that even a report such as a detailed, well-rationalized medical report which, 

if submitted before the denial was issued, would have created a conflict in medical evidence 

requiring further development is insufficient to demonstrate clear evidence of error.16 OWCP 

procedures further provide that the term clear evidence of error is intended to represent a difficult 

standard.17 

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

clear evidence of error on the part of OWCP such that it abused its discretion in denying merit 

review in the face of such evidence.18

ANALYSIS

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

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

OWCP’s regulations and procedures establish a one-year time limit for requesting 

reconsideration, which begins on the date of the original OWCP decision.19 OWCP’s last merit 

decision was dated September 14, 2011. It received appellant’s request for reconsideration on 

October 11, 2017. Because OWCP received his request for reconsideration more than one year 

after its last merit decision, the Board finds that the request was untimely filed and he must 

demonstrate clear evidence of error on the part of OWCP in its September 14, 2011 decision.20

The Board has reviewed the record and finds that appellant’s arguments on reconsideration 

do not raise a substantial question as to the correctness of OWCP’s September 14, 2011 merit 

decision or shift the weight of the evidence of record in his favor.

In its decision of March 17, 2011, OWCP denied appellant’s traumatic injury claim finding 

that he had not established that the alleged October 5, 2010 employment injury occurred while in 

the performance of duty. On reconsideration appellant alleged that he sustained additional injuries, 

including PTSD and a heart condition, due to his employment. He described how he travelled

from Afghanistan to the U.S. and explained his delay to seek medical treatment. Appellant, 

however, has not provided any evidence to establish that his alleged injuries occurred while in the 

performance of duty. He has not responded to OWCP’s request to provide official travel 

documents or, otherwise, show that he was on official duty status. While appellant’s arguments 

 

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

16 A.R., Docket No. 15-1598 (issued December 7, 2015).

17 Supra note 8 at Chapter 2.1602.5a (October 2011).

18 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

19 Supra notes 8 and 9.

20 Supra notes 8 and 10. One year from September 14, 2011 would be September 14, 2012. Therefore, OWCP 

properly found that appellant’s request for reconsideration, received on October 11, 2017 was untimely filed.
6

on reconsideration address that he was on travel status when the alleged injuries occurred, they do 

not demonstrate clear evidence of error on the part of OWCP.21 

OWCP also determined in its last merit decision that the factual evidence of record was 

insufficient to establish that the employment incident occurred as alleged and that the medical 

evidence of record was insufficient to establish causal relationship. Along with his reconsideration 

request, appellant also submitted several diagnostic testing reports dated January 19, 2013 to 

July 29, 2016, which noted several cardiovascular problems and conditions. An October 6, 2016 

report by Dr. Bechara also noted a diagnosis of DVT. Appellant’s narrative statement, however, 

did not mention falling down on his shoulder as he alleged in his original Form CA-1 and the 

medical evidence failed to address the alleged October 5, 2010 employment incident. He has not 

provided any corroborating evidence to substantiate that the employment incident occurred at the 

time, place, and in the manner alleged. Thus, the Board finds that this evidence does not 

demonstrate error with respect to OWCP’s finding that appellant had failed to establish fact of 

injury.22 Furthermore, the diagnostic and medical reports are insufficient to demonstrate error with 

respect to OWCP’s September 14, 2011 decision.23 Appellant has insufficiently explained how 

the submission of this evidence raises a substantial question concerning the correctness of OWCP’s 

decision.

The term clear evidence of error is intended to represent a difficult standard.24 Even a 

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

have created a conflict in medical evidence requiring further development is insufficient to 

demonstrate clear evidence of error.25 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.26

The Board finds that appellant has failed to support his reconsideration request with 

evidence or argument demonstrating that OWCP’s September 14, 2011 decision was clearly 

erroneous. Appellant’s request was insufficient to shift the weight of the evidence in his favor or 

raise a substantial question that OWCP erred in its September 14, 2011 decision. Thus, OWCP 

properly denied his request for reconsideration as it was untimely filed and failed to demonstrate 

clear evidence of error.

 

21 A.W., Docket No. 18-0362 (issued July 26, 2018).

22 P.B., Docket No. 18-0265 (issued September 5, 2018).

23 L.C., Docket No. 18-1407 (issued February 14, 2019).

24 Supra note 17.

25 Supra note 16.

26 Supra note 15.
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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.

ORDER

IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 22, 2019

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