United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.D., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 19-0154

Issued: May 7, 2019

Appearances: Case Submitted on the Record

Loretta Dennison, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 26, 2018 appellant, through counsel, filed a timely appeal from a May 17, 2018 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).

2

 The most recent

merit decision was a Board decision dated August 25, 1999, which became final 30 days after 

issuance, and is not subject to further review.3 As there was no merit decision by OWCP within 

 

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 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated March 13, 2019, 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. 19-0154 (issued March 13, 2019). 

3 20 C.F.R. § 501.6(d); see G.G., Docket No. 18-1074 (issued January 7, 2019).
2

180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act4

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

case.

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.5 The facts and circumstances as set forth 

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

follows.

On May 19, 1996 appellant, then a 54-year-old supply clerk, filed an occupational disease 

claim (Form CA-2) alleging that she developed severe pain in her shoulders, neck, and right upper 

extremity due to the constant use of computers and typewriters at work. She had retired from her 

federal employment on October 1, 1993.

OWCP denied appellant’s claim by decisions dated November 12, 1996, and March 28 and 

July 14, 1997. Appellant appealed to the Board on September 15, 1997. In the last merit decision 

issued in this case, on August 25, 1999 the Board found that appellant had not met her burden of 

proof to establish that her alleged fibromyalgia and myofascial pain in her neck, shoulder, and 

right arm were causally related to factors of her federal employment.6

By decision dated June 22, 2007, the Board found that, as appellant’s August 28, 2005 

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

OWCP’s April 7, 2006 decision was proper.

7

 By decision dated February 21, 2018, the Board 

found that OWCP properly denied appellant’s March 14 and 28, 2017 requests for reconsideration 

because they were untimely filed and failed to demonstrate clear evidence of error. The Board, 

therefore, affirmed OWCP’s decisions dated March 24 and April 3, 2017.8

On March 27, 2018 appellant again requested reconsideration. She submitted two medical 

reports previously of record including one page of December 9, 1996 correspondence from

Dr. Bruce L. Tetalman, a Board-certified physiatrist, in which he discussed myofascial pain. In 

an October 17, 2002 report, Dr. Robert B. Hansen, Board-certified in neurology and pain 

 

4 5 U.S.C. § 8101 et seq.

5 Docket No. 17-1915 (issued February 21, 2018); Docket No. 06-1849 (issued June 22 2007); Docket No. 97-2798 

(issued August 25, 1999). 

6 Docket No. 97-2798, id.

7 Docket No. 06-1849, supra note 5.

8 Docket No. 17-1915, supra note 5.
3

medicine, summarized appellant’s care since 1993. He advised that appellant suffered from 

widespread myofascial pain felt to be consistent with fibromyalgia syndrome which rendered her 

disabled. 

By decision dated May 17, 2018, OWCP denied appellant’s reconsideration request, 

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

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA,9 OWCP has the discretion to reopen a case for further 

merit review.10 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.11 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the received date in the integrated Federal 

Employees’ Compensation System (iFECS).12 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.13

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

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

review to determine whether it demonstrates clear evidence of error.14 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.15

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

issue which was decided by OWCP.16 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.17 Evidence which 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 show that the evidence could be construed so 

as to produce a contrary conclusion.19 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 

 

9 Supra note 4.

10 5 U.S.C. § 8128(a); J.W., Docket No. 18-0703 (issued November 14, 2018).

11 20 C.F.R. § 10.607(a).

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

13 J.W., supra note 10.

14 20 C.F.R. § 10.607(b); M.E., Docket No. 18-1497 (issued March 1, 2019).

15 G.G., supra note 3; see also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).

16 M.E., supra note 14.

17 Id.

18 Id.

19 Id.
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the new evidence demonstrates clear error on the part of OWCP.20 To demonstrate clear evidence 

of error, the evidence submitted 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.21

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

difficult standard.22 The claimant must present evidence which on its face shows that OWCP made 

an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before 

the denial was issued, would have created a conflict in medical opinion requiring further 

development, is not clear evidence of error.23 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.24

ANALYSIS

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

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

OWCP’s regulations provide that the one-year time limitation period for requesting 

reconsideration begins on the date of the last merit decision.25 The last merit decision in this case 

was dated August 25, 1999. Because appellant’s request for reconsideration was received on 

March 27, 2018, more than one year after the August 25, 1999 merit decision, OWCP properly 

determined that the request was untimely filed.26 Therefore, appellant must demonstrate clear 

evidence of error on the part of OWCP.

The Board finds that appellant failed to demonstrate clear evidence of error.

On reconsideration appellant submitted two medical reports to OWCP. These reports, 

however, were previously of record. Dr. Tetalman’s December 9, 1996 report had been reviewed 

by the Board in its August 25, 1999 decision.

27

 Dr. Hanson’s October 17, 2002 report was 

reviewed by the Board in its June 22, 2007 decision. The Board’s review of the previously 

submitted medical evidence of record is res judicata absent any further review by OWCP under 

 

20 Id.

21 J.W., supra note 10.

22 Supra note 12.

23 M.E., supra note 14.

24 Id.

25 20 C.F.R. § 10.607(a).

26 Id. at § 10.607(a).

27 Supra note 6.
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section 8128(a) of FECA and, therefore, the prior evidence need not be addressed again in this 

decision.28 There is no newly submitted evidence.

Counsel asserts on appeal that, under the Federal Rules of Appellate Procedure the case 

should be reviewed on the merits of appellant’s claim. The Federal Rules of Appellate Procedure 

govern procedures in the United States Courts of Appeal. Federal workers’ compensation claims 

are governed by FECA.29 The Board is a quasi-judicial body which has been delegated exclusive 

jurisdiction by Congress to hear and make final decisions on appeals from determinations of 

OWCP in claims of federal employees arising under FECA.30 The Rules of Procedure which are 

applicable to the Employees’ Compensation Appeals Board are found at 20 C.F.R. § 501 et seq. 

Thus, counsel’s arguments are without merit.

As the evidence and argument submitted are of insufficient probative value to prima facie

shift the weight in favor of appellant and raise a substantial question as to the correctness of 

OWCP’s August 25, 1999 decision, appellant has not met her burden of proof to demonstrate clear 

evidence of error.31

CONCLUSION

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

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

 

28 See N.M., Docket No. 18-1244 (issued March 4, 2019).

29 Supra note 4.

30 Id.; see Clinton K. Yingling, Jr., 4 ECAB 529 (1952).

31 M.E., supra note 14.
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ORDER

IT IS HEREBY ORDERED THAT the May 17, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 7, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees' Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board