United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

CORRECTIONAL INSTITUTION,

Seagoville, TX, Employer

__________________________________________

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Docket No. 19-0570

Issued: February 18, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 16, 2019 appellant filed a timely appeal from a January 3, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than one year has 

elapsed from OWCP’s most recent merit decision, dated April 21, 2008,2to the filing 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 over the merits of this case.

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.

20 C.F.R. § 501.5(b). By order dated December 6, 2019, the Board exercised its discretion and denied the request, 

finding that the arguments on appeal could adequately be addressed in a decision based on the case record. Order 

Denying Request for Oral Argument, Docket No. 19-0570 (issued December 6, 2019).

2 For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited 

to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(d)(2) 

(2008).
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 29, 2007 appellant, then a 38-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on August 25, 2007 he was attempting to subdue an inmate 

to protect himself and others when he sustained an injury to his right shoulder while in the 

performance of duty. He stopped work on August 25, 2007 and returned on August 30, 2007. 

In an August 28, 2007 report, Dr. Cynthia K. Ball, an osteopathic physician specializing in 

occupational medicine, noted that appellant indicated that he hurt his right shoulder while 

physically controlling an assaultive inmate. She diagnosed shoulder/upper arm strain and 

prescribed work restrictions. In a work status report dated August 29, 2007, Dr. Ball related 

appellant’s history of injury, diagnosed shoulder/upper arm strain, and supraspinatus strain, and 

related his work restrictions. 

In a development letter dated March 17, 2008, OWCP informed appellant that the evidence 

of record was insufficient to establish his traumatic injury claim. It notified him of the deficiencies 

of his claim and advised him of the type of factual and medical evidence needed. OWCP afforded 

appellant 30 days to submit the necessary evidence. No response was received.

By decision dated April 21, 2008, OWCP denied appellant’s claim. It found that the 

evidence supported that the alleged incident occurred, however, the medical evidence of record 

was insufficient to establish a diagnosed condition causally connected to the accepted incident.

OWCP concluded, therefore, that the requirements had not been met to establish an injury as 

defined by FECA. 

On December 6, 2018 appellant requested reconsideration. He argued that his claim was 

denied based upon a lack of documentation, however, his injury was real and it limited his daily

activities. Appellant explained that he had received treatment over the years and had informed his 

physicians that it was a work-related injury. He indicated that recently his right shoulder condition 

became aggravated and he underwent surgery. Appellant noted that his attending physician 

indicated that the surgery was required due to the injury sustained in 2007. 

OWCP also received an August 25, 2007 treatment note, wherein Dr. Christopher

Garrison, Board-certified in physical medicine and rehabilitation, diagnosed sprain of the shoulder. 

An August 25, 2007 work release form signed by a nurse indicated that appellant was treated in 

the emergency department on that date and released to work without restrictions. 

Appellant submitted an August 25, 2007 x-ray of his right shoulder, read by Dr. J. Mark 

Fulmer, a Board-certified diagnostic radiologist, which noted that appellant had a history of right 

shoulder pain after wrestling. Dr. Fulmer diagnosed tendinitis of the right rotator cuff.

OWCP also received a copy of Dr. Ball’s August 28, 2007 report and a September 5, 2007 

report from a physical therapist. 
3

In a September 21, 2018 progress report, Dr. Sandra Lee, an anesthesiologist, related that 

appellant had a chronic right shoulder injury and apparent acute right retracted supraspinatus tear. 

She related that he was to undergo a right shoulder arthroscopy, subacromial decompression, 

rotator cuff repair, and possible biceps tenodesis, possible labral repair. 

Treatment notes dated September 11, 2018, from Dr. Barry Watkins, a Board-certified 

orthopedic surgeon, revealed that appellant fell off the back of a truck on August 8, 2018 and 

injured his right shoulder, left wrist, and left radius. He also noted that appellant had related that 

his right shoulder popped out of place and hurt, then popped in and was ok. Dr. Watkins indicated 

that appellant worked on rental properties and as a federal prison supervisor. On September 21, 

2018 he noted appellant’s diagnosis as right rotator cuff tear and that he had performed a right 

shoulder arthroscopy that day. 

A nurse’s progress note dated September 24, 2018 related that appellant was seen for 

postop surgical follow up, following a right shoulder arthroscopic versus open rotator cuff repair, 

possible subacromial decompression, and possible distal clavicle excision. 

By decision dated January 3, 2019, OWCP denied appellant’s reconsideration request,

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.4 For 

instance, OWCP’s regulations5establish a one-year time limitation for requesting reconsideration, 

which begins on the date of the original OWCP merit decision for which review is sought. A right 

to reconsideration within one year also accompanies any subsequent merit decision on the issues.6 

Timeliness is determined by the document receipt date, the received date in OWCP’s integrated 

Federal Employees’ Compensation System (iFECS).7 Imposition of this one-year filing limitation 

does not constitute an abuse of discretion.8

OWCP may not deny a reconsideration request solely because it was untimely filed. When 

a claimant’s application for review is untimely, OWCP must nevertheless undertake a limited 

review to determine whether the application demonstrates clear evidence that OWCP’s final merit 

 

3 5 U.S.C. § 8128(a); see R.S., Docket No. 19-0180 (issued December 5, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4 20 C.F.R. § 10.607(a).

5 V.G., Docket No. 19-0038 (issued June 18, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018); see 

Alberta Dukes, 56 ECAB 247 (2005).

6

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

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

8 S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).
4

decision was in error.9 OWCP’s 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, if the 

claimant’s application for review demonstrates clear evidence of error on the part of OWCP.10 In 

this regard, it will limit its focus to a review of how the newly submitted evidence bears on the 

prior evidence of record.11

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

difficult standard.12 Evidence demonstrating clear evidence of error must be relevant to the issue 

which was decided by OWCP.13 Additionally, the evidence must be positive, precise, explicit, and 

must manifest on its face that OWCP committed an error.14 Evidence which does not raise a 

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

clear evidence of error.15 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.16 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.17

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.18 The Board 

makes an independent determination of whether a claimant has demonstrated clear evidence of 

 

9 C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., Docket No. 10-0323 (issued September 2, 2010); 

M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); 

Jesus D. Sanchez, 41 ECAB 964 (1990).

10 See D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

11 V.G., supra note 5; see E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB 

919 (1992).

12 A.S., Docket No. 18-1556 (issued September 17, 2019); J.S., Docket No. 16-1240 (issued December 1, 2016); 

supra note 7 at Chapter 2.1602.5(a) (February 2016).

13 S.T., supra note 8; see C.V., supra note 9; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 

1153 (1992).

14 S.T., supra note 8; see E.P., supra note 11; Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 

ECAB 227 (1991).

15 A.S., supra note 12; L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 5; see C.V., supra note 

9; Leon J. Modrowski, supra note 9; Jesus D. Sanchez, supra note 9.

16 V.G., supra note 5; see E.P., supra note 11; Leona N. Travis, supra note 14.

17 A.S., supra note 12; L.B., supra note 15.

18 D.G., supra note 10; Leon D. Faidley, Jr., supra note 8.
5

error on the part of OWCP such that OWCP abused its discretion in denying merit review in the 

face of such evidence.19

ANALYSIS

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.

OWCP’s regulations establish a one-year time limit for requesting reconsideration, which 

begins on the date of the original merit decision. The most recent merit decision was OWCP’s 

April 21, 2008 decision, which denied appellant’s traumatic injury claim. As OWCP received his

request for reconsideration on December 6, 2018, more than one year after the April 21, 2008 merit 

decision, the Board finds that the request was untimely filed. Consequently, appellant must

demonstrate clear evidence of error by OWCP in denying his claim for compensation.20

In support of his reconsideration request, appellant argued that his injury was real and 

limited his daily activities, that he had advised his physicians that it was a work-related injury, and 

that his condition had worsened, requiring surgical treatment. The underlying issue on 

reconsideration, however, was whether he had met his burden of proof to establish causal 

relationship. Appellant’s arguments do not show that OWCP’s denial of the claim was erroneous 

or raise a substantial question as to the correctness of the decision.21

In support of appellant’s request for reconsideration OWCP received an August 25, 2007 

work release form from a nurse and a September 5, 2007 report from a physical therapist. Nurses 

and physical therapists are not considered “physicians” as defined under FECA and thus these 

reports do not constitute competent medical evidence.22 Consequently, these reports are 

insufficient to demonstrate clear error by OWCP with respect to the underlying medical issue.

Appellant also submitted medical evidence in support of his request for reconsideration

which included: an x-ray report dated August 25, 2007 of his right shoulder; an August 25, 2007 

treatment note from Dr. Garrison, who diagnosed sprain of the shoulder; and a copy of Dr. Ball’s 

August 28, 2007 report. The Board finds that none of this evidence addresses the issue of causal 

relationship and therefore is insufficient to demonstrate that OWCP’s April 21, 2008 decision 

 

19 See C.V., supra note 9; George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition 

for recon. denied, 41 ECAB 458 (1990).

20 20 C.F.R. § 10.607(b).

21 S.D., Docket No. 17-1450 (issued January 8, 2018); see, e.g., D.B., Docket No. 17-1197 (issued 

November 1, 2017).

22 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law). 

See id. at § 8101(2); L.W., id.; N.C., Docket No. 18-0459 (issued August 2, 2018); David P. Sawchuk, 57 ECAB 316, 

320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to 

render a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 

2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of 

probative medical evidence from a physician).
6

denying appellant’s traumatic injury claim was in error at the time that it was issued.23 The term 

“clear evidence of error” is intended to represent a difficult standard, and the evidence provided 

here is not the type of positive, precise, and explicit evidence which manifested on its face that 

OWCP committed an error in its April 21, 2008 decision.24 Even a detailed, well-rationalized 

medical report, which would have created a conflict in medical opinion requiring further 

development if submitted prior to issuance of the denial decision, does not constitute clear 

evidence of error.

25

 It is not enough to show that evidence could be construed so as to produce a 

contrary conclusion. Instead, the evidence must shift the weight in appellant’s favor.26 The Board 

finds that these reports are insufficient to shift the weight of the evidence in favor of appellant or 

raise a fundamental question as to the correctness of OWCP’s decision denying his request for 

reconsideration.27

OWCP also received medical evidence from 2018 corroborating that appellant underwent 

right shoulder arthroscopy on September 21, 2018. This evidence included Dr. Lee’s and

Dr. Watkins’ September 21, 2018 treatment notes. However, Dr. Watkins revealed that appellant 

fell off the back of a truck and injured his right shoulder, left wrist, and left radius in August 2018. 

This evidence implicates a new injury and does not raise a fundamental question as to the 

correctness of OWCP’s April 21, 2008 decision.

28

As the evidence submitted in support of appellant’s untimely request for reconsideration is 

insufficient to shift the weight of the evidence in favor of his claim or raise a substantial question 

that OWCP erred in its April 21, 2008 decision, the Board finds that OWCP properly denied his 

reconsideration request, as it was untimely filed and failed to demonstrate clear evidence of error.

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.

 

23 A.S., supra note 12; L.B., supra note 15.

24 Supra note 7 at Chapter 2.1602.5 (February 2016); see also 20 C.F.R. § 10.607(b); id. at Chapter 2.1602.5(a) 

(February 2016).

25 See E.B., Docket No. 18-1091 (issued December 28, 2018); see also D.G., supra note 10; L.L., Docket No. 

13-1624 (issued December 5, 2013).

26 See M.P., Docket No. 19-0674 (issued December 16, 2019); E.B., id.; see also M.N., Docket No. 15-0758 (issued 

July 6, 2015).

27 C.M., Docket No. 19-0585 (issued August 15, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018); 

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

28 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the January 3, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 18, 2020

Washington, DC

Patricia H. Fitzgerald, 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