United States Department of Labor

Employees’ Compensation Appeals Board

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T.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Muskogee, OK, Employer

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Docket No. 19-0056

Issued: July 1, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 11, 2018 appellant filed a timely appeal from an August 28, 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 February 8, 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.

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 December 27, 2016 appellant, then a 40-year-old motor vehicle operator, filed a 

traumatic injury claim (Form CA-1) alleging that on December 22, 2016 he sustained tension in 

 

1 5 U.S.C. § 8101 et seq.
2

his lower back, shoulders, and neck following a motor vehicle accident that occurred when another 

motorist ran a red light and struck his vehicle while in the performance of duty. He did not stop 

work.

By decision dated February 8, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that he had not submitted any medical evidence which provided a diagnosis causally related 

to the accepted employment incident. 

On July 23, 2018 OWCP received a statement from appellant describing the incident and 

notes from a physician assistant dated January 11 and 18, 2017. 

On August 2, 2018 appellant requested reconsideration.

OWCP thereafter received a March 13, 2018 magnetic resonance imaging (MRI) scan of

appellant’s right shoulder without contrast, a letter from the employing establishment dated 

March 21, 2018, related to appellant’s light-duty assignment, and a copy of the light-duty 

assignment.

In a March 20, 2018 report, Dr. David E. Nonweiler, a Board-certified orthopedic surgeon, 

diagnosed impingement syndrome of the right shoulder, complete tear of right rotator cuff, and 

enchondroma of the right humerus. He opined, “I do feel the sole cause of [appellant’s] current 

shoulder problem is his on-the-job injury as he has described to me.” Dr. Nonweiler completed a 

work restriction form of the same date, indicating that appellant could not drive a shuttle bus. 

In an August 6, 2018 report, Dr. Nonweiler diagnosed impingement syndrome of the right 

shoulder and a complete tear of the right rotator cuff. He noted that appellant’s MRI scan clearly 

showed a rotator cuff tear. Dr. Nonweiler recommended a right shoulder arthroscopy with 

acromioplasty and rotator cuff repair. He advised that appellant could perform light-duty work 

with no lifting over 10 to 20 pounds, overhead or away from his body. Dr. Nonweiler also

indicated that appellant could not drive a bus. He reiterated his opinion that, “I do feel the sole

cause of his current shoulder problem is his on-the-job injury as he has described to me.”

By decision dated August 28, 2018, OWCP denied appellant’s August 2, 2018 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.2 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.3 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the received date in the integrated Federal 

 

2 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).

3 20 C.F.R. § 10.607(a).
3

Employees’ Compensation System (iFECS).4 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.5

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

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.

6

 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.7

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 

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.8

OWCP 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.9 

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

evidence of error on the part of OWCP.10

ANALYSIS

The Board finds that OWCP properly determined that appellant’s August 2, 2018 request 

for reconsideration was untimely filed and failed to demonstrate clear evidence of error.

 

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

5 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).

6 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).

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

also 20 C.F.R. § 10.607(b); supra note 4 at Chapter 2.1602.5 (February 2016).

8

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

9

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (February 2016).

10 D.S., Docket No. 17-0407 (issued May 24, 2017).
4

Appellant had one year from the date of OWCP’s February 8, 2017 merit decision to timely 

request reconsideration.11 As his request for reconsideration was not received by OWCP until 

August 2, 2018, more than one year after the February 8, 2017 merit decision, it was untimely 

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

of his claim.

12

The Board has reviewed the record and finds that appellant has failed to demonstrate clear 

evidence of error. Appellant failed to submit the type of positive, precise, and explicit evidence 

which manifests on its face that OWCP committed an error in its February 8, 2017 decision.13 

OWCP denied his claim as he failed to submit medical evidence sufficient to establish that he 

sustained a diagnosed condition causally related to the accepted December 22, 2016 employment 

incident. In fact, at the time of the denial, no medical evidence had been submitted.

On reconsideration OWCP received a statement from appellant describing the accepted 

incident, a March 13, 2018 MRI scan of his right shoulder, a letter from the employing 

establishment dated March 21, 2018 related to his light-duty assignment, and a copy of the lightduty assignment from his physician. Appellant has not explained how this evidence raises a 

substantial question regarding the correctness of OWCP’s initial decision denying his claim.

14

 

This evidence does not offer an opinion that OWCP’s decision was incorrect and is not 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.

15

OWCP also received reports from Dr. Nonweiler. In his March 20 and August 6, 2018 

reports, Dr. Nonweiler provided diagnoses and opined that appellant’s condition was caused by 

the accepted employment incident. However, these reports did not contain the type of positive, 

precise, and explicit evidence, which manifests on its face, that OWCP committed an error in its 

February 8, 2017 decision.16 The Board has previously explained herein that even 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, does not 

demonstrate clear evidence of error.

17

 The Board finds that the March 20 and August 6, 2018 

reports from Dr. Nonweiler do not rise to the level of clear evidence of error.18

 

11 20 C.F.R. § 10.607(a).

12 Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

13 See R.M., Docket No. 18-1393 (issued February 12, 2019).

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

15 See supra note 8.

16 R.O., Docket No. 18-1687 (issued March 26, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010); see 

Fidel E. Perez, 48 ECAB 663, 665 (1997).

17 L.W., supra note 2. 

18 See E.B., Docket No. 18-1091 (issued December 28, 2018).
5

OWCP also received notes from a physician assistant dated January 11 and 18, 2017. 

However, the reports of nonphysicians, including physician assistants,

19 do not constitute probative 

medical evidence under FECA. This evidence, therefore, did not raise a substantial question as to 

the correctness of OWCP’s February 8, 2017 decision.

Thus, the Board finds that appellant has failed to demonstrate clear evidence of error in the 

denial of his claim. 

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 August 28, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 1, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

19 See D.F., Docket No. 17-0745 (issued March 14, 2018); R.S., Docket No. 16-1303 (issued December 2, 2016); 

L.L., Docket No. 13-0829 (issued August 20, 2013).