United States Department of Labor

Employees’ Compensation Appeals Board

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M.R., Appellant

and

DEPARTMENT OF THE AIR FORCE, TINKER 

AIR FORCE BASE, OK, Employer

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Docket No. 18-0142

Issued: May 15, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 25, 2017 appellant, through counsel, filed a timely appeal from a 

September 11, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from December 18, 2014, the date of the most recent 

merit decision, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of 

appellant’s claim.

 

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.
2

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 August 26, 2014 appellant, then a 51-year-old aircraft sheet metal mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that, on August 20, 2014, he was preparing food for 

a break when he felt something hit his left calf. He listed his injury as a broken left tibia. Appellant 

submitted medical reports in support of his claim. 

By development letter dated November 14, 2014, OWCP informed appellant that further 

information was needed to support his claim, including evidence to support that he experienced 

the incident or employment factor alleged to have caused injury. Appellant was afforded 30 days 

to submit the additional evidence. 

In a statement received by OWCP on December 13, 2014, appellant indicated that the day 

prior to the injury, he kicked a small, heavy steel, two-step stand. He noted that on August 20, 

2014 he woke up with a sore ankle. Appellant noted that he went on break, and that he went to sit 

down and felt his bone give way. He remembered that his calf had been hit by a roll of industrial 

paper towels that somebody had thrown. Appellant indicated that everything happened at same 

time, so he was not sure as to the sequence of events. He also noted that he kicked a stand in the 

same manner back in the spring and it hurt for a few days. Appellant submitted medical evidence

in support of his claim. 

By decision dated December 18, 2014, OWCP denied appellant’s claim. It determined that 

appellant’s statements as to how the injury occurred were inconsistent so as to cast serious doubt 

as to whether the specified event occurred at the time, place, and in the manner alleged. 

Accordingly, OWCP denied appellant’s claim as the evidence of record did not establish that an 

incident occurred as alleged. It further noted that, even if appellant had established the factual 

portion of his claim, he did not submit medical evidence that contained a medical diagnosis in 

connection with the employment event. 

By letter received by OWCP on December 28, 2015, appellant, through counsel, requested 

reconsideration, and submitted additional medical evidence. By decision dated January 3, 2017, 

OWCP denied appellant’s reconsideration request, finding that it was untimely filed and failed to 

demonstrate clear evidence of error.

On May 17, 2017 appellant, through counsel, again requested reconsideration. Counsel 

argued that the factual basis for the claim had not been contested and that it was agreed that the 

incident occurred. Therefore, he contended, that OWCP erred in that it failed to consider the 

medical evidence. With his request, counsel resubmitted medical reports. These medical reports 

consisted of reports by Dr. Christopher Jordan, Board-certified orthopedic surgeon, dated 

October 16 and 29, 2014; reports by Dr. Daniel J. Jones, an orthopedic surgeon, dated August 22 

through October 2, 2014, and an August 26, 2014 report by Dr. Oliver Cyitanic, a Board-certified 

radiologist.
3

By decision dated September 11, 2017, OWCP denied appellant’s request for

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

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.2 The Board has found that the imposition of the one-year 

limitation does not constitute an abuse of the discretionary authority granted OWCP under section 

8128(a) of FECA.3 Timeliness is determined by the document receipt date (i.e., the “received 

date” in OWCP’s Integrated Federal Workers’ Compensation System.4 The Board has found that 

the imposition of the one-year limitation does not constitute an abuse of the discretionary authority 

granted OWCP under section 8128(a) of FECA.5

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

is untimely filed. It must undertake a limited review to determine whether the application 

demonstrates clear evidence of error.6 OWCP regulations and procedure 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.7

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

issue which was decided by OWCP.

8

 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.9 Evidence which does not raise a 

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

clear evidence of error.10 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the evidence 

 

2 20 C.F.R. § 10.607(a). 

3 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

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

5 Supra note 3.

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 104, 111 (1989).

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) 

(February 2016). OWCP’s procedure further 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 erred in its decision. 

8 Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

10 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

11 See Leona N. Travis, supra note 9.
4

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.12

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

clear evidence of error on the part of OWCP such that it abused its discretion in denying merit 

review in the face of such evidence.13 In order to demonstrate clear evidence of error the evidence 

submitted must not only be of sufficient probative value to create a conflict in medical opinion or 

establish a clear procedural error, but 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

ANALYSIS

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

reconsideration was untimely filed. OWCP’s regulations provide that the one-year time limitation 

period for requesting reconsideration begins on the date of the last merit decision. The last merit 

decision in this case was December 18, 2014. As appellant’s request for reconsideration was 

received on May 17, 2017, more than one year after the December 18, 2014 decision, it was 

untimely filed. Therefore, he must demonstrate clear evidence of error with regard to the 

December 18, 2014 decision. 

The Board finds that appellant has failed to demonstrate clear evidence of error with regard 

to the December 18, 2014 decision. Appellant did not submit the type of positive, precise, and 

explicit evidence manifesting on its face that OWCP committed error in the denial of the claim.

15

OWCP denied appellant’s claim because he failed to establish that the employment 

incident occurred as alleged. It determined that appellant’s statements of injury were inconsistent 

and could not be accepted as factual. Appellant did not submit any evidence that addressed fact 

of injury. In order to demonstrate clear evidence of error, a claimant must submit evidence relevant 

to the issue which was decided by OWCP.16 The Board finds that appellant’s argument and 

evidence submitted with his untimely request for reconsideration fails to demonstrate clear 

evidence of error.

17

OWCP’s procedures provide 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 of miscalculation in a schedule award). The evidence submitted herein 

 

12 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

13 See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Mathews, 44 ECAB 765, 770 (1993).

14 See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15 See S.P., Docket No. 17-1708 (issued February 23, 2018). 

16 B.C., Docket No. 16-1404 (issued April 14, 2017).

17 See D.B., Docket No. 17-1197 (issued November 1, 2017).
5

does not rise to that level. The Board finds that the additional evidence submitted by appellant, 

which consisted of medical reports, does not shift the weight of the evidence in favor of the 

claimant nor does it raise a substantial question as to the correctness of OWCP’s decision.18 

Therefore, appellant has failed to demonstrate clear evidence of error in his untimely request for 

reconsideration.

For these reasons, OWCP properly determined that appellant failed to demonstrate clear 

evidence of error in that decision. 

On appeal counsel argues that: (1) there is a conflict as to the medical evidence which was

not resolved in accordance with the recognized principles of law; (2) OWCP failed to adjudicate 

the claim in accordance with the standard of causation; (3) OWCP failed to give deference to the 

findings of the attending physician; (4) OWCP failed to follow the procedure manual; (5) OWCP 

did not meet burden of proof to terminate benefits; (6) the employing establishment did not refute 

credibility of claimant; and (7) the Board must enter de novo review and makes its own 

independent judgment of the claim. Counsel further requests that the Board take specific 

corrective action rather than simply remand the claim, and that the Board specifically identify any 

deficiency in any medical report that it finds contains “insufficient rationale.” The Board finds 

that counsel’s arguments are general arguments that do not address the facts or the issues in this 

specific claim, and do not demonstrate clear evidence of error in the denial of appellant’s claim.

CONCLUSION

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

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

 

18 See M.M., Docket No. 16-1627 (issued January 4, 2017).
6

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated September 11, 2017 is affirmed.

Issued: May 15, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board