United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.B., Appellant

and

DEPARTMENT OF THE ARMY, ABERDEEN 

PROVING GROUND, Aberdeen, MD, Employer

__________________________________________

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Docket No. 20-1197

Issued: February 3, 2021

Appearances: Case Submitted on the Record

Analese B. Dunn, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 22, 2020 appellant filed a timely appeal from a December 13, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated June 14, 2007,

2

to the filing of this appeal, 

 

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 See 20 C.F.R. § 501.3(d)(2) (2008). For final adverse decisions issued by OWCP on and after November 19, 

2008, the Board’s review authority is limited to appeals which are filed within 180 days from the date of issuance of 

OWCP’s decision. See 20 C.F.R. § 501.3(e) (2009).
2

pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of this case.4

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 April 26, 2007 appellant, then a 28-year-old firefighter, filed a traumatic injury claim 

(Form CA-1) alleging that on October 5, 2006 he developed pneumonia, which lead to cardiac 

issues and a pacemaker installation after receiving an influenza vaccine while in the performance 

of duty. He stopped work on October 7, 2006 and returned on March 12, 2007.

OWCP received medical evidence in support of appellant’s claim including hospital 

records and letters from his treating physicians. 

By decision dated June 13, 2007, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish a causal relationship between his diagnosed 

conditions and the accepted October 5, 2006 employment incident.

On December 4, 2019 appellant, through counsel, requested reconsideration. Counsel 

contended that there was clear evidence of error in OWCP’s June 13, 2007 decision as it failed to 

consider medical evidence submitted prior to the issuance of the decision. She further asserted 

that the decision did not issue a clear basis for denial.

In support of his request for reconsideration, appellant submitted an undated affidavit from

Dr. Alan R. Maniet, a Board-certified osteopath specializing in internal medicine. Dr. Maniet

noted that appellant received an influenza vaccine on October 5, 2006 from his employing 

establishment. He reviewed the medical record and described appellant’s treatment. Dr. Maniet 

diagnosed hypersensitivity myocarditis. He noted that vaccines had been implicated as causing 

hypersensitive or allergic myocarditis. Dr. Maniet indicated that appellant had an extensive 

infectious disease workup, which ruled out infectious etiology for his myocarditis. He also noted 

that appellant had no history of inflammatory or immune disorders and had no exposure to 

protozoal or metazoal diseases, toxic agents, or physical agents. Dr. Maniet reported that appellant 

received an influenza vaccine within 24 hours of the development of his symptoms and noted that 

his bloodwork suggested an allergic-type hypersensitive reaction. He, therefore, concluded that 

appellant’s influenza vaccine caused his myocarditis. Dr. Maniet cited to medical literature that 

indicated that vaccines had been implicated as a cause of hypersensitivity myocarditis.

 

3 5 U.S.C. § 8101 et seq.

4 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.
3

Also submitted was a March 8, 2019 affidavit, wherein appellant described the 

employment incident and related his medical history.

By decision dated December 13, 2019, OWCP denied appellant’s reconsideration request,

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, a 

request for reconsideration must be received by OWCP 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 is indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System (iFECS).6 The Board has found that the imposition of the oneyear time limitation does not constitute an abuse of the discretionary authority granted OWCP 

under section 8128(a) of FECA.7 

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

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

review to determine whether the request demonstrates clear evidence of error.8 OWCP’s 

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.9

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an 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 submitted with the reconsideration request bears on the evidence 

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

part of OWCP.12 The Board makes an independent determination of whether a claimant has 

 

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 G.L., Docket No. 18-0852 (issued January 14, 2020).

8 20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

9

Id; supra note 5 at Chapter 2.1602.5(a).

10 20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

11 See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

12 B.W., supra note 9.
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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

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.14 The claimant must present evidence that 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 that, if submitted before the denial was issued, 

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.15 

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.16 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that a decision shall contain findings of fact and a statement 

of reasons.17 The Board has held that the reasoning behind OWCP’s evaluation should be clear 

enough for the reader to understand the precise defect of the claim and the kind of evidence which 

would overcome it.18

ANALYSIS

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

reconsideration was untimely filed. 

OWCP received appellant’s request for reconsideration on December 4, 2019, which was 

more than one year after the last merit decision, dated June 13, 2007. The Board thus finds that 

the request for reconsideration was untimely filed.19 Consequently, appellant must demonstrate 

clear evidence of error by OWCP in denying the claim.20 

The Board further finds that this case is not in posture for decision with regard to whether 

appellant’s untimely request for reconsideration demonstrates clear evidence of error.

In its December 13, 2019 decision, simply noted: “[T]he medical evidence provided is 

insufficient to establish that [OWCP’s June 13, 2007] decision was improperly decided. The 

 

13 Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

14 Supra note 5 at Chapter 2.1602.5(b).

15 G.B., supra note 10; A.R., Docket No. 15-1598 (issued December 7, 2015).

16 5 U.S.C. § 8124(a).

17 20 C.F.R. § 10.126.

18 C.M., Docket No. 19-1211 (issued August 5, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014); supra 

note 5 at Chapter 2.1400.5 (all decisions should contain findings of fact sufficient to identify the benefit being denied 

and the reason for the disallowance).

19 20 C.F.R. § 10.607(a).

20 20 C.F.R. § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57 

ECAB 149 (2005).
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reason for this finding is because there is no clear and precise medical evidence to establish that 

your alleged condition was caused by factors of your employment.” OWCP did not address the 

arguments or evidence submitted by appellant in support of his December 4, 2019 reconsideration 

request. Section 8124(a) of FECA provides that OWCP shall determine and make a finding of 

fact and make an award for or against payment of compensation.21 Its regulations at 20 C.F.R. 

§ 10.126 further provide that the decision of the Director of OWCP shall contain findings of fact 

and a statement of reasons.22 As well, OWCP’s procedures provide that the reasoning behind 

OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the 

claim and the kind of evidence which would overcome it.23 The Board thus finds that OWCP did 

not comply with the review requirements of FECA and its implementing regulations when it 

summarily denied appellant’s request for reconsideration.

24

 Appellant, therefore, could not 

understand the precise defect of the claim and the kind of evidence which would overcome it.25 

This case must therefore be remanded for an appropriate decision which describes the 

evidence submitted on reconsideration and provides detailed reasons for finding that appellant’s 

untimely reconsideration request did or did not demonstrate clear evidence of error.

26

 Following 

this and other such further development as deemed necessary, OWCP shall issue an appropriate 

decision.

CONCLUSION

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

reconsideration was untimely filed. The Board further finds, however, that this case is not in 

posture for decision with regard to whether his untimely reconsideration request demonstrates 

clear evidence of error. 

 

21 5 U.S.C. § 8124(a).

22 20 C.F.R. § 10.126.

23 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

24 See M.M., Docket No. 20-0537 (issued September 24, 2020); C.M., Docket No. 19-1211 (issued August 5, 2020).

25 Supra note 23.

26 5 U.S.C. § 8124(a).
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ORDER

IT IS HEREBY ORDERED THAT the December 13, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is 

remanded for further proceedings consistent with this decision of the Board.

Issued: February 3, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board