United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.B., Appellant

and

DEPARTMENT OF THE ARMY, RED RIVER 

ARMY DEPOT, Texarkana, TX, Employer

__________________________________________

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Docket No. 19-1701

Issued: December 14, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 7, 2019 appellant filed a timely appeal from a February 12, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated January 25, 2018, 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 denied appellant’s request for reconsideration of the 

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On October 25, 2016 appellant, then a 52 year-old electroplater, filed a traumatic injury 

claim (Form CA-1) alleging that on January 11, 2016 she sustained injury to her left knee when 

she slipped and fell in a parking lot while in the performance of duty. She did not stop work.

In a development letter dated October 27, 2016, OWCP informed appellant of the 

deficiencies of her claim. It advised her of the type of factual and medical evidence needed and 

provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the 

necessary evidence. It also requested that the employing establishment provide additional 

evidence including comments on whether the alleged injury occurred on employing establishment 

premises and whether the parking facilities were owned, controlled, or managed by the employing 

establishment. No response was received. 

By decision dated December 5, 2016, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the employment incident occurred as alleged. 

It concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA.

On October 27, 2017 appellant requested reconsideration. In support of her request, she 

submitted a January 21, 2016 witness statement, wherein appellant’s coworker, M.C., noted that 

she was walking with appellant and R.G., another coworker, to a parking lot on January 11, 2016 

when appellant fell and hit the pavement hard. She further related that she heard a loud pop. 

Appellant informed them that the uneven pavement caused her to fall.

In another witness statement of even date, R.G. similarly noted that appellant fell and hit 

the uneven concrete hard, with a snapping sound. He related that he thought she might have broken

her leg due to the loud pop.

In a February 2, 2016 Occupational Safety and Health Administration (OSHA) incident 

report, it noted that on January 11, 2016 appellant sustained cuts, laceration, and puncture to the 

left side of her left knee when she fell on uneven pavement while walking to her vehicle.

In a February 4, 2016 medical report, Dr. Blane Graves, Board-certified in family 

medicine, noted some of appellant’s medication history and provided findings on physical 

examination.

In a March 29, 2017 medical report, Dr. Darius F. Mitchell, a Board-certified orthopedic 

surgeon, indicated that appellant was under his care and noted her light-duty restrictions for the 

next three months.
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OWCP also received an October 8, 2017 response to its October 27, 2017 factual

development questionnaire. Appellant indicated that, while walking on January 11, 2016, she 

tripped and fell on uneven pavement, with her left knee striking the pavement first and then her 

left palm. She immediately experienced pain in her left knee and lacerations to her left palm, and

she had difficulty getting to her feet. Appellant indicated that her left knee swelled and bearing

weight was painful. She treated the knee with a heating pad at home. Appellant reported the 

January 11, 2016 incident to her supervisor the next day, but she was told by an employing 

establishment injury compensation specialist to wait on filing the Form CA-1. She related that

Dr. Sharon Evers, a Board-certified occupational medicine physician, initially examined her on 

January 12, 2016 and that Dr. Mitchell subsequently diagnosed a meniscus tear in the left knee. 

Appellant alleged that she also sought a second opinion from Dr. Ethan Schock, a Board-certified 

orthopedic surgeon, who concluded that the nature of her meniscus tear was consistent with a fall 

and twisting injury with a direct blow to the knee.

Appellant submitted physical therapy notes dated March 25 to April 28, 2016.

In a November 28, 2017 letter, the employing establishment challenged appellant’s claim, 

contending that she failed to produce medical documentation establishing a valid medical 

diagnosis causally related to the claimed January 11, 2016 employment incident. It noted that on 

February 4, 2016 she informed Dr. Graves that her left knee pain had actually started from a car 

accident a few years ago. Additionally, the employing establishment noted that Dr. Mitchell, in 

his March 29, 2017 medical report, did not address anything pertaining to a work-related injury or 

the reason appellant sought treatment with him.

By decision dated January 25, 2018, OWCP modified the December 5, 2016 decision, 

finding that appellant had established the factual component of her claim. However, appellant’s 

claim remained denied as the medical evidence of record was insufficient to establish a diagnosed 

medical condition causally related to the accepted January 11, 2016 employment incident.

On January 28, 2019 appellant requested reconsideration of the January 25, 2018 decision.

In a statement dated January 23, 2019, appellant asserted that she was submitting medical 

documentation proving that the fall in the employing establishment’s parking lot was the direct 

cause of a meniscal tear in her left knee. No further evidence was received. 

By February 12, 2019 decision, OWCP denied appellant’s January 28, 2019 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.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 

 

3 5 U.S.C. § 8128(a); see A.B., Docket No. 19-1539 (issued January 27, 2020); J.S., Docket No. 19-1203 (issued 

January 22, 2020); M.E., Docket No. 18-1497 (issued March 1, 2019). 
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decision for which review is sought.4 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).5 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6

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.7 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.8

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

issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.10 Evidence that does not raise a 

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

clear evidence of error.11 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.12 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.13 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.14

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

difficult standard.15 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 

 

4 20 C.F.R. § 10.607(a); L.F., Docket No. 19-0324 (issued January 2, 2020); L.H., Docket No. 19-1174 (issued 

December 2019).

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

6 See E.H., Docket No. 19-0859 (issued December 10, 2019); M.E., supra note 3; E.R., Docket No. 09-0599 (issued 

June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7 See 20 C.F.R. § 10.607(b); A.B. and M.E., supra note 3; Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8 Supra note 5 at Chapter 2.1602.5 (February 2016); G.G., Docket No. 18-1074 (issued January 7, 2019); see also 

id. at § 10.607(b).

9 A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019).

10 Id.; see also L.W., Docket No. 19-1367 (issued December 19, 2019); Leona N. Travis, 43 ECAB 227 (1999).

11 J.F., supra note 9; A.A., supra note 9; Jimmy L. Day, 48 ECAB 652 (1997).

12 Id. 

13 Id.

14 J.F., supra note 9; M.E., supra note 3; Robert G. Burns, 57 ECAB 657 (2006).

15 See G.G., supra note 8.
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the denial was issued, would have created a conflict in medical opinion requiring further 

development, is not clear evidence of error.16 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.17

ANALYSIS

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

merits of her claim as it was untimely filed and failed to demonstrate clear evidence of error.

OWCP’s regulations18 and procedures19 establish a one-year time limitation for requesting 

reconsideration, which begins on the date of the last OWCP merit decision. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.20 

As appellant’s request for reconsideration was not received by OWCP until January 28, 2019, 

more than one year after the January 25, 2018 decision, the Board finds that it was untimely filed.21 

Consequently, she must demonstrate clear evidence of error on the part of OWCP.

The Board further finds that appellant has failed to demonstrate clear evidence of error on 

the part of OWCP in its last merit decision. OWCP denied her traumatic injury claim, finding that 

she had not submitted medical evidence including a diagnosis by a qualified physician in 

connection with the accepted January 11, 2016 employment incident.22

With her request for reconsideration, appellant submitted a January 23, 2019 statement,

asserting that she had submitted further medical evidence, including Dr. Schock’s report showing 

a diagnosis causally related to the accepted January 11, 2016 employment incident. The record, 

however, shows that OWCP had not received said evidence at the time of its final decision. Thus, 

the Board finds that the January 23, 2019 statement alone does not raise a substantial question as 

to the correctness of OWCP’s last merit decision.23

Clear evidence of error is intended to represent a difficult standard.24 As previously noted, 

the Board makes an independent determination of whether a claimant has submitted clear evidence 

 

16 Supra note 5 at Chapter 2.1602.5(a) (February 2016); J.F., supra note 9; J.S., Docket No. 16-1240 (issued 

December 1, 2016).

17 See Y.J., Docket No. 18-0495 (issued December 10, 2019); M.E., supra note 3.

18 Supra note 3; see Alberta Dukes, 56 ECAB 247 (2005).

19 Supra note 5 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

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

21 See C.T., Docket No. 14-0410 (issued July 22, 2015) (reconsideration request received three days later is 

untimely). 

22 A.B., supra note 3. 

23 See C.A., Docket No. 19-0597 (issued October 4, 2019).

24 G.D., Docket No. 19-0815 (issued January 16, 2020); K.E., Docket No. 19-1020 (issued November 5, 2019).
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of error on the part of OWCP.25 As appellant has not submitted such evidence, the Board finds 

that she has not demonstrated clear evidence of error. 

CONCLUSION

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

merits of her claim as it was untimely filed and failed to demonstrate clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the February 12, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 14, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

25 W.R., Docket No. 18-1042 (issued February 12, 2019); R.C., Docket No. 17-0198 (issued January 28, 2019).