United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.D., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 17-1915

Issued: February 21, 2018

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 8, 2017 appellant filed a timely appeal from March 24 and April 3, 2017 

nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision on the underlying issue was a Board decision dated August 25, 1999, which 

became final after 30 days of issuance and is not subject to further review.1 OWCP has not 

issued a merit decision since the Board’s August 25, 1999 decision. As the March 24 and 

April 3, 2017 nonmerit decisions are the only decisions issued within 180 days 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 to review the merits of appellant’s claim.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

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

 

1 20 C.F.R. § 501.6(d); see D.A., Docket No. 08-1217 (issued October 6, 2008).

2 5 U.S.C. § 8101 et seq.
2

On appeal appellant asserts that, in denying her claim, her rights have been violated and 

she has been denied due process of law. 

FACTUAL HISTORY

This case has previously been before the Board. In an August 25, 1999 decision, the 

Board found that appellant did not meet her burden of proof to establish that claimed 

fibromyalgia and myofascial pain in her neck, shoulder, and right arm were causally related to 

factors of her federal employment. The Board affirmed July 14 and March 28, 1997 and 

November 12, 1996 OWCP decisions.3 In a June 22, 2007 decision, the Board found that, as 

appellant’s August 28, 2005 reconsideration request was untimely filed and because she failed to 

demonstrate clear evidence of error, OWCP properly denied a merit review of her claim in an

April 7, 2006 decision.4 The facts as presented in the prior Board decision are incorporated 

herein by reference. 

Subsequent to the Board’s June 22, 2007 decision, in a letter dated January 16, 2017, 

received by OWCP on January 31, 2017, appellant referenced both OWCP claims.5 She 

submitted correspondence and medical reports previously of record. In a letter dated and 

received by OWCP on March 14, 2017, appellant requested reconsideration of File No. 

xxxxxx122, the instant claim. 

New medical evidence received subsequent to OWCP’s April 7, 2006 decision consisted 

of a procedure note for an epidural injection dated September 7, 2005 from a provider with an 

illegible signature. In a November 28, 2007 report, Dr. Hossan Hassan, a Board-certified family 

physician, indicated that appellant had widespread myofascial pain, which he felt to be consistent 

with fibromyalgia syndrome and headaches. He advised that she was permanently disabled. In a 

July 24, 2008 report, Dr. Robert B. Hansen, a Board-certified neurologist, noted that appellant 

had been his patient for many years, but that he had no knowledge of her condition since he last 

saw her on November 19, 2004. He referenced a report he previously authored on 

November 19, 2004. Dr. Hassan provided an attending physician’s report (Form CA-20) dated 

February 18, 2009 in which he diagnosed myofascial pain and fibromyalgia. He checked a box 

marked “yes,” indicating that the condition was employment related, stating, “per previous 

[physician,] pain stems directly from [appellant’s] work.” Dr. Hassan advised that appellant

could never return to work. 

 

3 Docket No. 97-2798 (issued August 25, 1999), denying petition for recon., Docket No. 97-2798 (issued 

May 25, 2000). On May 19, 1996 appellant, then a 54-year-old supply clerk, filed an occupational disease claim 

(Form CA-2) alleging that severe pain in her shoulders, neck, and right upper extremity were due to the constant use 

of computers and typewriters at work. She had retired from her federal employment on October 1, 1993. The 

notification of personnel action (SF-50) indicated that appellant retired to take advantage of the employing 

establishment’s separation incentive. The instant case was adjudicated by OWCP under File No. xxxxxx122. The 

record indicates that appellant has a second case, adjudicated by OWCP under File No. xxxxxx656. Only File 

No. xxxxxx122 is presently before the Board.

4 Docket No. 06-1849 (issued June 22, 2007).

5 Supra note 3.
3

In a nonmerit decision dated March 24, 2017, OWCP denied appellant’s reconsideration 

request as it was untimely filed and she failed to demonstrate clear evidence of error on the part 

of OWCP. Appellant again requested reconsideration on March 28, 2017. She submitted 

nothing further. 

By decision dated April 3, 2017, OWCP denied appellant’s reconsideration request as it 

was untimely filed and failed to demonstrate clear evidence of error on the part of OWCP. 

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, 

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.6 When determining the one-year period for 

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

Sunday, or a federal holiday.7 Timeliness is determined by the document receipt date, i.e., the 

“received date” in OWCP’s Integrated Federal Employees’ Compensation System.8 The Board 

has found that the imposition of the one-year limitation does not constitute an abuse of 

discretionary authority granted OWCP under section 8128 of FECA.9

OWCP may not deny an application for review solely because the application was not 

timely filed. When an application for review is untimely filed, it must nevertheless undertake a 

limited review to determine whether the application demonstrates clear evidence of error.10 

OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the 

claimant’s application for review demonstrates clear evidence of error on the part of OWCP.11

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 

 

6 20 C.F.R. § 10.607(a).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see

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

8

Id. at Chapter 2.1602.4(b) (February 2016).

9 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

10 See 20 C.F.R. § 607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

11 Id. at § 607(b); supra note 7 at Chapter 2.1602.5(a) (February 2016).
4

to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial 

question as to the correctness of OWCP’s decision.12

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.13 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.14

ANALYSIS

The Board finds that, in its March 24 and April 3, 2017 decisions, OWCP properly 

determined that appellant’s multiple requests for reconsideration were untimely filed. Its 

regulations provide that the one-year time limitation period for requesting reconsideration begins 

on the date of the last merit decision.15 The last merit decision in this case was dated 

August 25, 1999. Because appellant’s requests for reconsideration were received on March 14 

and 28, 2017, more than one year after the August 25, 1999 merit decision, OWCP properly 

determined that these requests were untimely filed.16 Therefore, she must demonstrate clear 

evidence of error on the part of OWCP with regard to the March 24 and April 3, 2017 decisions.

The Board finds that appellant failed to demonstrate clear evidence of error.

The evidence submitted to the record following the April 7, 2006 nonmerit OWCP 

decision consisted of several medical reports. The only report discussing causal relationship, the 

underlying merit issue in this case, is the February 18, 2009 attending physician’s report from

Dr. Hassan. While he checked a box marked “yes,” and indicated that “per previous [physician,]

pain stems directly from [appellant’s] work,” the Board has long held that when a physician’s 

opinion on causal relationship consists only of checking “yes” to a form question, without 

sufficient rationale, as here, that opinion is of diminished probative value and is insufficient to 

establish a claim.17 Moreover, as noted, evidence such as a detailed, well-rationalized medical 

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

 

12 Robert G. Burns, 57 ECAB 657 (2006).

13 Supra note 7 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 16-1240 (issued December 1, 2016).

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

15 20 C.F.R. § 10.607(a).

16 Id. 

17 Sedi L. Graham, 57 ECAB 494 (2006).
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opinion requiring further development, is not clear evidence of error.18 Appellant did not 

otherwise submit medical evidence addressing the cause of her disability.19

Regarding appellant’s due process claim, the United States Supreme Court has held that 

constitutional questions are unsuited to resolution in administrative hearing procedures. As the 

Board is an administrative body, it does not have jurisdiction to review a constitutional claim. 

The Federal courts retain jurisdiction over decisions under FECA where there is a charge of a 

violation of a clear statutory mandate or where there is a constitutional claim.20

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

shift the weight in favor of appellant and raise a substantial question as to the correctness of 

OWCP’s last merit decision dated July 14, 1997, appellant has not established that OWCP 

committed error in refusing to provide merit review by its March 24 and April 3, 2017 

decisions.21

CONCLUSION

The Board finds that OWCP properly denied appellant’s requests for reconsideration as 

the requests were untimely filed and failed to demonstrate clear evidence of error. 

 

18 Supra note 13.

19 The Board notes that the November 19, 2004 report referenced by Dr. Hansen had previously been reviewed by 

both OWCP and the Board in its June 22, 2007 decision. 

20 See Woodruff v. U.S. Department of Labor, 954 F.2d 634 (11th Cir. 1992); Andrew Fullman, 57 ECAB 

574 (2006).

21 D.A., Docket No. 17-1503 (issued November 27, 2017).
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ORDER

IT IS HEREBY ORDERED THAT the April 3 and March 24, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: February 21, 2018

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