United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.L., Appellant

and

DEPARTMENT OF THE ARMY, TEST & 

EVALUATION COMMAND, White Sands, NM, 

Employer

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Docket No. 18-1786

Issued: April 17, 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 September 24, 2018 appellant filed a timely appeal from a June 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 September 30, 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 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 determined appellant’s request for reconsideration 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On February 28, 2012 appellant, then a 48-year-old information technology (IT) specialist 

(customer support), filed a traumatic injury claim (Form CA-1) alleging that she sustained an

injury to her back on February 28, 2012 while moving and lifting metal desks while in the 

performance of duty. OWCP accepted the claim for sprain of back, lumbar region. It placed 

appellant on the periodic compensation rolls effective May 6, 2012.

Appellant returned to full-time, light-duty work from November 25 to December 16, 2013 

and then took sick leave on December 17 and 18, 2013. She stopped work on December 19, 2013 

and did not return. Appellant was removed from federal employment effective July 26, 2014 for 

failure to meet a condition of employment and failure to maintain a regular schedule.

By decision dated January 14, 2014, the Board affirmed OWCP’s July 12, 2013 nonmerit 

decision denying appellant’s request for an oral hearing and its March 28, 2013 merit decision 

suspending her compensation benefits effective April 7, 2013 due to her failure to attend a 

scheduled medical examination. 

OWCP referred appellant to Dr. James Hood, a Board-certified orthopedic surgeon, for a 

second opinion evaluation to determine the nature and extent of her accepted employment-related 

condition. In a July 31, 2014 report, Dr. Hood reviewed a statement of accepted facts (SOAF), the 

history of injury, and the medical evidence of record. He conducted a physical examination and 

opined that appellant had a single soft tissue lumbar sprain without radiculopathy as a result of the 

February 28, 2012 incident and that her condition had resolved within a three-month period of 

time. Dr. Hood concluded that appellant had no disabling residuals related to her accepted 

February 28, 2012 employment injury and had reached maximum medical improvement as of 

May 28, 2012. He released her to full duty without restrictions.

On September 12, 2014 appellant filed a claim for wage-loss compensation (Form CA-7) 

for the period November 1, 2013 to November 1, 2014. 

OWCP received work capacity evaluation forms (Form OWCP-5c) dated March 14, 2012 

through June 21, 2017 from Dr. Johan Penninck, a Board-certified orthopedic surgeon, who 

advised that appellant was totally disabled for work.

 

3 Docket No. 13-1869 (issued January 14, 2014) (the Board found that OWCP had properly denied appellant’s 

request for an oral hearing and affirmed OWCP’s suspension of compensation benefits, pursuant to 5 U.S.C. 

§ 8123(d), due to her failure to attend a medical examination).
3

By decision dated November 19, 2014, OWCP noted that appellant had previously been

compensated for the period November 1 to 24, 2013, as well as four hours on December 19, 2013, 

four hours on January 20, 2014, four hours on February 24, 2014, four hours on March 28, 2014, 

and four hours on May 5, 2014. It found that she was not entitled to compensation for the period 

November 25 to December 18, 2013 because she was either working full time or on sick leave. 

Since appellant had been removed from employment effective July 26, 2014,4she was not entitled 

to wage-loss compensation for the period July 26 to November 1, 2014. OWCP further found that 

appellant had not met her burden of proof to establish the claimed disability for the remaining 

hours for the period December 19, 2013 to July 26, 2014 because the medical evidence of record 

did not establish a change in the nature or extent of her injury-related condition, or a change in the 

nature and extent of her light-duty requirements as the reports of Dr. Penninck were insufficient 

to establish disability from work.

On December 12, 2014 appellant timely requested an oral hearing before a representative 

of OWCP’s Branch of Hearings and Review. A telephonic hearing was held before an OWCP 

hearing representative on July 13, 2015.

By decision dated September 30, 2015, OWCP’s hearing representative affirmed the denial 

of appellant’s wage-loss compensation claim finding that the medical evidence of record failed to 

establish that she was totally disabled for the period December 19, 2013 to July 26, 2014, as it did 

not establish a change in the nature or extent of appellant’s employment-related condition, or a 

change in the nature and extent of her light-duty requirements. She also noted that appellant had 

been paid total disability compensation for the period April 7 to July 7, 2013 based on her 

attendance at a second opinion appointment on July 31, 2014.

On August 18, 2017 appellant requested reconsideration. In support of her request she 

submitted an August 10, 2017 letter setting forth the basis of her request.

By decision dated November 16, 2017, OWCP denied appellant’s request for 

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

Appellant subsequently submitted a January 9, 2018 prescription and medical report from

Dr. Penninck who reiterated his diagnosis of sprain of ligaments of lumbar spine and indicated that 

appellant was not working, noting she was never able to get back to work.

On August 18, 2017 appellant requested reconsideration. She resubmitted her August 10, 

2017 letter along with work capacity evaluation forms (Form OWCP-5c) dated January 9 and 

April 18, 2018 from Dr. Penninck who continued to opine that she was totally disabled from work. 

On April 27, 2018 appellant submitted another letter requesting reconsideration of her claim.

By decision dated June 28, 2018, OWCP denied appellant’s request for reconsideration 

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

Dr. Penninck’s reports were insufficient to demonstrate that the September 30, 2015 decision was 

erroneous. 

 

4 The Board notes that OWCP incorrectly indicated appellant’s date of removal as July 22, 2014, instead of 

July 26, 2014.
4

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).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 request for reconsideration 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, OWCP 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 

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 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 

 

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 20 C.F.R. § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).

11 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).
5

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 determined that appellant’s request for 

reconsideration 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 merit decision.14 The most recent 

merit decision was OWCP’s September 30, 2015 decision denying appellant’s claim for wage-loss 

compensation. Appellant had one year from the date of that decision to make a timely request for 

reconsideration. Since appellant’s request was not received by OWCP until August 18, 2017, it 

was filed outside the one-year time period.15 As appellant’s August 18, 2017 request for 

reconsideration was received more than one year after the September 30, 2015 merit decision, it 

was untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP 

in the denial of her claim.16

In its September 30, 2015 decision, OWCP’s hearing representative affirmed the denial of 

appellant’s wage-loss compensation claim finding that the medical evidence of record failed to 

establish that she was totally disabled for the period December 19, 2013 to July 26, 2014, as it did 

not establish a change in the nature or extent of appellant’s employment-related condition, or a 

change in the nature and extent of her light-duty requirements. 

In support of her untimely request for reconsideration, appellant resubmitted an August 10, 

2017 letter setting forth the basis of her request. She subsequently submitted an April 27, 2018 

letter again noting her request for reconsideration. Appellant submitted work capacity evaluation 

forms (Form OWCP-5c) dated January 9 and April 18, 2018 from Dr. Penninck who continued to 

opine that she was totally disabled for work in addition to a previously submitted January 9, 2018 

prescription and medical report from Dr. Penninck who reiterated his diagnosis of sprain of 

ligaments of lumbar spine and indicated that appellant was not working. The underlying issue is 

medical in nature, namely whether the record of evidence supports the claimed period of disability. 

The only new medical evidence are the various reports of Dr. Penninck which are substantially 

similar or repetitive of his prior opinions already reviewed by OWCP. The Board has held that 

repetitive or cumulative evidence is insufficient to shift the weight of the evidence in favor of the 

claimant.17 The Board finds that none of the evidence submitted subsequent to the September 30, 

2015 decision establishes that appellant was totally disabled for the claimed period. Therefore, 

 

12 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).

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

14 Supra notes 6 and 7. 

15 Supra note 6.

16 Id.; see also Debra McDavid, 57 ECAB 149 (2005).

17 P.B., Docket No. 18-0265 (issued September 5, 2018); D.E., 59 ECAB 438 (2008). 
6

this evidence fails to demonstrate clear evidence of error because it does not establish that OWCP 

committed an error in denying appellant’s wage-loss compensation claim, nor does it raise a 

substantial question as to the correctness of OWCP’s decision.

As the evidence and argument submitted are of insufficient probative value to shift the 

weight in favor of appellant and raise a substantial question as to the correctness of OWCP’s last 

merit decision, appellant has failed to demonstrate clear evidence of error.18

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the June 28, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 17, 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

 

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