United States Department of Labor

Employees’ Compensation Appeals Board

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S.J., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Birmingham, AL, Employer

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Docket No. 19-1864

Issued: August 12, 2020

Appearances: Case Submitted on the Record

Lauren Shine, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On September 3, 2019 appellant, through counsel, filed a timely appeal from a July 24, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk 

of the Appellate Boards assigned Docket No. 19-1864. 

 

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 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 7, 

2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately 

be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1864 (issued

August 7, 2020). 
2

This case has previously been on appeal before the Board.3 The relevant facts are set forth 

below.

On February 3, 2014 appellant, then a 46-year-old food service worker, filed a traumatic 

injury claim (Form CA-1) alleging that she injured her right knee and lower back on January 24, 

2014 when her left foot got caught on a drawer of her desk as she turned in her chair to get up

causing her to fall while in the performance of duty. On April 29, 2014 OWCP accepted the claim 

for contusion of the right knee and sprain of the back, lumbar region.

In a letter dated January 8, 2015, the employing establishment noted that appellant was to 

resume regular-duty work as of January 12, 2015, as there was no medical evidence providing 

work restrictions.

On January 23, 2015 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits as the weight of the medical evidence established that she no longer had 

residuals or disability due to the accepted January 24, 2014 employment injury.

By decision dated March 13, 2015, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date. 

On March 30, 2015 appellant requested a telephonic hearing, which was held before an 

OWCP hearing representative on November 18, 2015.

By decision dated January 28, 2016, OWCP’s hearing representative affirmed the

March 13, 2015 decision. 

On February 16, 2017 appellant, through counsel, requested reconsideration. 

By decision dated February 27, 2017, OWCP denied appellant’s request for 

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

On August 24, 2017 appellant, through counsel, filed a timely appeal before the Board. By 

decision dated December 19, 2018, the Board found that 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.4

On June 28, 2019 appellant, through counsel, requested reconsideration. Counsel argued 

that appellant filed a timely reconsideration request, noting that a receipt reflected that the request 

was received on February 2, 2017 and the recorded document was received on February 16, 2017. 

Counsel noted that the certified mail receipt reflected that a package was delivered. Counsel

further argued that the package included medical evidence from Dr. Kathleen Warner, an internist,

which was not considered and that this was clear error. Counsel noted that the additional medical 

evidence challenged the findings of Dr. Todd Smith, Board-certified orthopedic surgeon, and that 

 

3 Docket No. 17-1835 (issued December 19, 2018).

4

Id.
3

OWCP’s failure to consider the medical evidence from Dr. Warner was clear evidence of error in 

the issuance of the January 28, 2016 decision. 

By decision dated July 24, 2019, OWCP denied appellant’s June 21, 2019 request for 

reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a). It found that her

reconsideration request neither raised substantive legal questions nor included new and relevant 

evidence. 

The Board notes that the most recent decision reviewing the merits of appellant’s case was 

OWCP’s January 28, 2016 decision. Appellant had one calendar year from the date of that 

decision, until January 27, 2017, to ensure receipt by OWCP of a reconsideration request.5 OWCP 

received her reconsideration request on June 28, 2019. As the received date was more than one 

year after the January 28, 2016 OWCP decision, the Board finds that appellant’s request must be 

considered untimely.

The proper standard of review for an untimely reconsideration request is the clear evidence 

of error standard.6 In denying appellant’s reconsideration request in its July 24, 2019 nonmerit 

decision OWCP applied the incorrect standard of review. Therefore, the Board will set aside 

OWCP’s July 24, 2019 decision and remand the case for proper review under the clear evidence 

of error standard.7

 

5 The Board notes that although counsel asserts that OWCP received the reconsideration request on February 2, 

2017 that received date would still be considered untimely.

6 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).

7 Due to the appearance that appellant’s reconsideration request and/or supportive documentation was received into 

an incorrect file number, upon return of the case file OWCP shall properly assemble and reconstruct the case files to 

ensure that documents submitted in relation to the present file are contained in the proper claim file prior to issuance 

of a new decision. OWCP shall also consider whether his claim files should be administratively combined.
4

IT IS HEREBY ORDERED THAT the July 24, 2019 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this order of the Board.

Issued: August 12, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board