United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

CHARLES GEORGE VETERANS AFFAIRS 

MEDICAL CENTER, Asheville, NC, Employer

__________________________________________

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Docket No. 19-0438

Issued: July 5, 2019

Appearances: Case Submitted on the Record

Clifton Neal, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 21, 2018 appellant, through counsel, filed a timely appeal from a June 26, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from the last merit decision, dated February 3, 2016, to the filing of this 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
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appeal, pursuant 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 determined appellant’s request for reconsideration, 

finding that it was untimely failed and failed to establish clear evidence of error.

FACTUAL HISTORY

On December 22, 2015 appellant, then a 57-year-old housekeeping aid, filed a traumatic 

injury claim (Form CA-1) alleging that on December 15, 2015 he strained his right side groin and 

right pelvis pulling wet linen while in the performance of duty.

By development letter dated December 29, 2015, OWCP advised appellant of the 

deficiencies of his claim. It requested additional factual and medical evidence from him and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

On December 18, 2015 L. Grant Trevor, a physician assistant, provided work restrictions. 

In a note dated December 18, 2015, Dr. Joseph J. Antinori, a Board-certified family practitioner, 

diagnosed a hernia and provided work restrictions. On December 23, 2015 Dr. Gil Carter, a 

Board-certified family practitioner, opined that appellant should not lift, pull, drag, or push until 

February 1, 2016. Appellant underwent an abdominal computerized tomography scan on 

December 23, 2015 which did not demonstrate an inguinal hernia.

On January 7, 2016 appellant completed OWCP’s questionnaire and denied any previous 

similar condition. He also provided a narrative statement and alleged that on December 15, 2015 

he was pulling a cart filled with heavy wet linen while in the performance of duty. Appellant 

alleged that he pulled his groin. He specified that, while pulling a bag of soiled linen from one of 

the bins and twisting to his left, he felt pain in his groin area severe enough that he dropped the 

bag he was handling. Appellant alleged that he had sustained a hernia. He also provided work 

restrictions dated February 2, 2016 from Dr. Carter.

By decision dated February 3, 2016, OWCP denied appellant’s claim, finding that he had 

not established a hernia causally related to his accepted December 15, 2015 employment incident.

On February 5, 2018 appellant, through counsel, requested reconsideration of the 

February 3, 2016 decision. Counsel summarized a December 18, 2015 note from Dr. Antinori and 

a December 23, 2015 note from Dr. Carter. He contended that the medical evidence of record 

 

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.
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established causal relationship between appellant’s diagnosed hernia condition and his accepted 

employment activities on December 15, 2015.

By decision dated June 26, 2018, OWCP denied appellant’s request for further merit 

review finding that his request was untimely filed and failed to demonstrate clear evidence of error. 

It noted that the medical reports referenced and summarized by counsel in his request for 

reconsideration were not documented in the case record.

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.4 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.5 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.

6

 Imposition of this one-year filing limitation does not 

constitute an abuse of discretion.7

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.8 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.9

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 

 

4 5 U.S.C. § 8128(a); S.C., Docket No. 18-0126 (issued May 14, 2019); L.W., Docket No. 18-1475 (issued 

February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).

5 20 C.F.R. § 10.607(a).

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

7 S.C., supra note 4; 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).

8 See 20 C.F.R. § 10.607(b); S.C., id.; M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 

41 ECAB 499, 501-02 (1990).

9 S.C., id.; 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 6 at Chapter 2.1602.5 (February 2016).
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evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.10

OWCP’s 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.11 

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

evidence of error on the part of OWCP.12

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 regulations13 and procedures14 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.15 

The most recent merit decision was OWCP’s February 3, 2016 decision which found that the 

evidence of record was insufficient to establish causal relationship. As appellant’s request for 

reconsideration was not received by OWCP until February 5, 2018, more than one year after the 

February 3, 2016 decision, the Board finds that it was untimely filed. Because his request was 

untimely, he must demonstrate clear evidence of error on the part of OWCP in having denied his 

traumatic injury claim. 

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 his traumatic injury claim as the 

medical evidence of record failed to establish a causal relationship between the diagnosed 

conditions and the accepted December 15, 2015 employment incident. 

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 

 

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

11 S.C., id.; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) 

(February 2016).

12 S.C., id.; D.S., Docket No. 17-0407 (issued May 24, 2017).

13 S.C., id.; J.W., supra note 10; 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

14 Supra note 6 at Chapter 2.1602.4 (February 2016); see S.C., id.; Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15 20 C.F.R. § 10.607(b); see S.C., id.; Debra McDavid, 57 ECAB 149 (2005).
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evidence of error.16 In his request for reconsideration, counsel indicated that appellant had 

established the medical component of his claim through reports dated December 18, 2015 from

Dr. Antinori and December 23, 2015 from Dr. Carter. He did not provide any additional medical 

evidence and those reports referenced in his request for reconsideration, as OWCP noted, were not 

of record at the time of its final decision. The Board thus finds that counsel’s argument does not 

raise a substantial question as to the correctness of OWCP’s last merit decision. 

Clear evidence of error is intended to represent a difficult standard. The Board makes an 

independent determination of whether a claimant has submitted clear evidence of error on the part 

of OWCP.17 As appellant has not submitted such evidence, the Board finds that he has not 

demonstrated clear evidence of error. 

On appeal, counsel submitted the previously omitted medical records referenced in the

statement accompanying his request for reconsideration. However, as previously noted, the Board 

is precluded from reviewing evidence for the first time on appeal.18

CONCLUSION

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

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

 

16 Supra note 11.

17 S.C., id.; Nancy Marcano, 50 ECAB 110 (1998).

18 Supra note 3.
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ORDER

IT IS HEREBY ORDERED THAT the June 26, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 5, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board