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. 20-0035

Issued: October 14, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 October 3, 2019 appellant filed a timely appeal from an October 1, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). 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.1 As there was no merit decision issued by OWCP within 180 

days of 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.

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.

 

1 20 C.F.R. § 501.6(d); see R.T., Docket No. 20-0298 (issued August 6, 2020); G.G., Docket No. 18-1074 (issued 

January 7, 2019).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 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 sustained severe pain in her shoulders, neck, and right arm

due to factors of her federal employment, including the constant use of computers and typewriters 

at work. Appellant’s supervisor noted on the claim form that appellant had retired from federal 

employment on October 1, 1993. 

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

March 28, 1997 and denied reconsideration on 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 she 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.4 

Appellant continued to request reconsideration. By decisions dated October 7, 2004 and 

April 7, 2006, OWCP denied her August 9, 2004 and August 28, 2005 reconsideration requests, 

finding that they were untimely filed and failed to demonstrate clear evidence of error. Appellant 

appealed the April 7, 2006 decision to the Board. By decision dated June 22, 2007, the Board

affirmed OWCP’s April 7, 2006 decision.

5

Appellant again requested reconsideration. By decision dated February 21, 2018, the

Board affirmed OWCP’s March 24 and April 3, 0217 decisions, finding that her March 14 and 28,

2017 requests for reconsideration were untimely filed and failed to demonstrate clear evidence of

error.6 

On March 27, 2018 appellant again requested reconsideration. OWCP denied her request 

for reconsideration on May 17, 2018, finding that it was untimely filed and failed to demonstrate 

clear evidence of error. On October 26, 2018 appellant, through counsel, appealed to the Board. 

By decision dated May 7, 2019, the Board affirmed OWCP’s May 17, 2018 decision.7 

 

3 Docket No. 19-0154 (issued May 7, 2019); Docket No. 17-1915 (issued February 21, 2018); Docket No. 06-1849 

(issued June 22, 2007); Docket No. 97-2798 (issued May 25, 2000); Docket No. 97-2798 (issued August 25, 1999), 

denying petition for recon.

4 Docket No. 97-2798 (issued August 25, 1999), denying petition for recon., Docket No. 97-2798 (issued 

May 25, 2000). 

5 Docket No. 06-1849 (issued June 22, 2007). 

6 Docket No. 17-1915 (issued February 21, 2018). 

7 Docket No. 19-0154 (issued May 7, 2019). 
3

On June 19, 2019 appellant again requested reconsideration. She resubmitted three

medical reports previously of record. The first was from the employing establishment’s clinic with

notes dated August 25, 1992 and July 7, 1993. It was initially submitted on June 3, 1997 and

contained illegible signatures. Appellant also resubmitted one page of December 9, 1996

correspondence from Dr. Bruce L. Tetalman, a Board-certified physiatrist, and an October 17,

2002 report by Dr. Robert B. Hansen, Board-certified in neurology and pain medicine, who

summarized her medical history since 1993. 

By decision dated October 1, 2019, OWCP denied appellant’s reconsideration request,

finding that it was untimely filed and failed to demonstrate clear evidence of error.8

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, OWCP must nevertheless undertake a limited 

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

demonstrates clear evidence of error, it 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 

 

8 The decision was initially issued by OWCP on July 1, 2019, was returned to OWCP as undeliverable, and was 

reissued on October 1, 2019. 

9 Supra note 2.

10 5 U.S.C. § 8128(a); P.J., Docket No. 19-1479 (issued May 8, 2020); 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 C.M., Docket No. 19-1211 (issued August 5, 2020).

14 20 C.F.R. § 10.607(b); C.M., id.

15 See also id. at § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).

16 J.S., Docket No. 20-0337 (issued July 15, 2020).

17 Id.
4

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 

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 denied appellant’s request for reconsideration as it 

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 was dated 

August 25, 1999. Because appellant’s request for reconsideration was received on June 9, 2019, 

more than one year after the August 25, 1999 merit decision, the Board finds that the request was 

untimely filed.26 Therefore, appellant must demonstrate clear evidence of error on the part of 

OWCP.27

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

 

18 Id.

19 Id.

20 Id.

21Supra note 13.

22 Supra note 12.

23 Supra note 13.

24 Id.

25 20 C.F.R. § 10.607(a).

26 Id. at § 10.607(a).

27 See R.T., supra note 1.
5

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

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

the Board in its August 25, 1999 decision.

28

 The employing establishment clinic notes dated 

August 25, 1992 and July 7, 1993, were initially submitted on June 3, 1997 and were also reviewed 

in the Board in its August 25, 1999 decision. Dr. Hansen’s October 17, 2002 report was reviewed 

by the Board in its June 22, 2007 decision.29 The Board therefore finds that this previously 

submitted evidence does not raise a substantial question concerning the correctness of OWCP’s 

decision and is insufficient to demonstrate clear evidence of error.30

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. 

ORDER

IT IS HEREBY ORDERED THAT the October 1, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 14, 2020

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

 

28 Supra note 4.

29 Supra note 5

30 C.M., supra note 13.