United States Department of Labor

Employees’ Compensation Appeals Board

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E.C., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR 

WARFARE CENTER, China Lake, CA, 

Employer

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Docket No. 19-0646

Issued: February 26, 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 January 28, 2019 appellant filed a timely appeal from a January 10, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision on this issue, dated June 4, 2007, to the filing of this 

appeal,1 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 the claim.3

 

1 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 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the January 10, 2019 decision, appellant submitted additional evidence to OWCP 

and to the Board 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, 

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior orders are incorporated herein by reference. The relevant facts are as follows. 

On April 29, 1992 appellant, then a 57-year-old painter, filed a traumatic injury claim 

(Form CA-1) alleging that on April 9, 1992 he strained his left shoulder when lifting heavy interior 

doors while in the performance of duty. He stopped work on April 29, 1992 and returned to work 

on May 15, 1992. OWCP accepted the claim for neck strain, left shoulder strain, left ulnar nerve 

neuropathy, degenerative cervical disc disease, bilateral carpal tunnel syndrome, bilateral trigger 

finger, and left lesion of the ulnar nerve. Appellant underwent a number of OWCP-authorized 

surgical procedures.

5

Effective March 21, 1993, appellant worked as a water plant operator. By decision dated 

January 18, 1994, OWCP issued a loss of wage-earning capacity (LWEC) determination, finding 

that his position as a water plant operator at the employing establishment fairly and reasonably 

represented his wage-earning capacity. It advised appellant that his net wage-loss compensation

rate every 28 days would be $128.72, effective September 19, 1993.

6

On April 3, 2003 appellant filed a notice of recurrence of disability (Form CA-2a), 

claiming a recurrence of disability commencing June 2002. By decisions dated October 7, 2003, 

October 14, 2004, April 14, 2005, and May 30, 2006, OWCP denied appellant’s recurrence claim. 

On August 28, 2006 appellant appealed to the Board. In an April 13, 2007 order, the Board 

set aside OWCP’s May 30, 2006 decision, finding that OWCP should have adjudicated the case 

as a request for modification of an established LWEC as opposed to a recurrence claim.7

By decision dated June 4, 2007, OWCP modified appellant’s January 18, 1994 LWEC 

determination as he had established a material worsening of his accepted conditions as of 

May 27, 2004.

On October 27, 2008 OWCP advised appellant that he would receive wage-loss 

compensation in the monthly amount of $1,829.91 for the closed period of May 27, 2004 through 

 

4 Order Remanding Case, Docket No. 06-1995 (issued April 13, 2007) and Order Dismissing Appeal, Docket No. 

15-0859 (issued June 2, 2015). 

5 Appellant’s authorized surgical procedures included: left elbow exploration and anterior transportation of the 

ulnar nerve on October 20, 1993; left carpal tunnel release on February 10, 2000; right carpal tunnel release on 

March 23, 2000 and September 16, 2004; open neurolysis/decompression of the left median ulnar nerve on May 27, 

2004 and of the right median ulnar nerve on September 16, 2004. 

6 Appellant retired on July 19, 1997.

7 Docket No. 06-1995, supra note 4.
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September 4, 2006.8 It enclosed an election form and informed him that, if he elected FECA 

benefits, any offset due to Office of Personnel Management and Social Security age-based benefits 

would be determined and the amount of FECA compensation due from September 4, 2006 would 

be calculated.

On October 1, 2018 appellant requested reconsideration of the June 4, 2007 decision. 

OWCP subsequently received an October 9 2018 letter from him indicating that his health had 

worsened since June 4, 2007 and that he required cervical surgery, but OWCP denied his request.

Appellant noted that OWCP had advised him that he needed to provide recent medical records to 

establish that his medical condition had worsened since June 4, 2007. He indicated that he was 

submitting an April 11, 2017 magnetic resonance imaging (MRI) scan which clearly indicated that 

his medical condition had worsened. Medical evidence regarding appellant’s cervical condition, 

including the April 11, 2017 MRI scan and reports from Dr. Manprit H. Dhillon, a neurologist, 

dated October 15 and 23, 2018 were submitted to the record. The record also contains an 

October 24, 2018 authorization for bilateral cervical injections.

In a November 10, 2018 letter, appellant alleged that he had established that his medical 

condition had worsened.

By decision dated January 10, 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.9 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.10 The one-year period for requesting reconsideration begins 

on the date of the original OWCP decision, but the right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues, including any merit decision by the 

Board.11 Timeliness is determined by the document receipt date (i.e., the “received date” in 

OWCP’s Integrated Federal Employees’ Compensation System (IFECS)).12 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.13

OWCP may not deny a request for reconsideration solely because the application was not 

timely filed. When a request for reconsideration is untimely filed, it must nevertheless undertake 

 

8 The record does not reflect that appellant received any wage-loss benefits related to this claim after 

September 4, 2006. 

9 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

10 20 C.F.R. § 10.607(a).

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

12 Id. at Chapter 2.1602.4(b) (February 2016).

13 See R.L., Docket No. 18-0496 (issued January 9, 2019).
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a limited review to determine whether the application demonstrates clear evidence of error.14 

OWCP regulations and 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(a), if the 

claimant’s request demonstrates clear evidence of error on the part of OWCP.15

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.16 The Board 

notes that clear evidence of error is intended to represent a difficult standard.17 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

demonstrate clear evidence of error.18 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.19 This entails a limited review by OWCP of 

the evidence previously of record and whether the new evidence demonstrates clear error on the 

part of OWCP.20 In this regard, the Board will limit its focus to a review of how the newly 

submitted evidence bears on the prior evidence of record.21 The Board makes an independent 

determination as to whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.22

ANALYSIS

The Board finds that OWCP improperly adjudicated appellant’s request for modification 

of the June 4, 2007 LWEC determination as a request for reconsideration. 

OWCP found that appellant’s October 1, 2018 request for reconsideration of the June 4, 

2007 LWEC determination was untimely filed and failed to demonstrate clear evidence of error. 

The Board finds that appellant’s October 1, 2018 reconsideration request was, instead, a 

request for modification of the June 4, 2007 LWEC determination. Although appellant requested 

reconsideration, when the underlying issue involves an LWEC, the initial question is whether the 

claimant has submitted an application for reconsideration of a recent LWEC determination or has 

requested modification of the LWEC determination.23 This requires that OWCP conduct a limited 

 

14 See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

15 Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a) (February 2016).

16 G.G., supra note 14.

17 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 13.

18 E.B., Docket No .18-1091 (issued December 28, 2018).

19 J.W., Docket No. 18-0703 (issued November 14, 2018).

20 P.L., Docket No. 18-0813 (issued November 20, 2018).

21 D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

22 W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

23 Y.R., Docket No. 18-1464 (issued February 22, 2019).
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review of the evidence or argument submitted to determine if the claimant is alleging either that 

the original determination was in error or that his injury-related condition had worsened.24 The 

Board has held that, when an LWEC determination has been issued and appellant submits evidence 

with respect to one of the criteria for modification, OWCP must evaluate the evidence to determine 

if modification of the LWEC is warranted.25

In the October 9, 2018 letter, appellant contended that his medical condition had worsened 

such that the June 4, 2007 LWEC determination should be modified. He submitted evidence 

including an April 11, 2017 MRI scan in support of his allegation, and new medical reports from

Dr. Dhillon dated October 15 and 23, 2018. An assertion that the accepted condition has worsened 

is a basis on which a claimant may seek modification of an LWEC determination.26

The Board thus finds that OWCP improperly adjudicated appellant’s request for 

modification of the June 4, 2007 LWEC determination as a request for reconsideration. As 

appellant has requested modification of the LWEC determination, the time limitations for filing a 

request for reconsideration under 20 C.F.R. § 10.607(a) do not apply.27 The Board will, therefore, 

remand the case to OWCP for proper adjudication, to be followed by an appropriate merit decision.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

24 Supra note 11 at Chapter 2.1501.4(b).

25 J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

26 Once the wage-earning capacity of an injured employee is determined, a modification of such determination is 

not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee 

has been retrained or otherwise vocationally rehabilitated, or the original determination was, in fact, erroneous. E.H.,

Docket No. 17-0963 (issued August 24, 2018); Stanley B. Plotkin, 51 ECAB 700 (2000).

27 E.H., id.
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ORDER

IT IS HEREBY ORDERED THAT the January 10, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: February 26, 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