United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.D., Appellant

and

DEPARTMENT OF THE AIR FORCE, 560th

AIRCRAFT MAINTENANCE SQUADRON,

ROBINS AIR FORCE BASE, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1462

Issued: June 26, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 25, 2019 appellant filed a timely appeal from an April 26, 2019 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed 

from OWCP’s last merit decision, dated March 8, 2018, to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the April 26, 2019 decision, OWCP received additional evidence. Appellant also 

submitted additional evidence on appeal to the Board. 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 of the 

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On January 18, 2018 appellant, then a 55-year-old aircraft mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on November 1, 2017 he sustained a lower back injury 

while in the performance of duty. He asserted that he heard something “pop” in the right side of 

his lower back when he sat down to remove screws from floor boards and that he then had difficulty 

getting back up. Appellant did not stop work.

In support of his claim, appellant submitted a job description for the aircraft mechanic

position.

In a development letter dated February 1, 2018, OWCP requested that appellant submit 

additional evidence in support of his claim, including a physician’s opinion supported by a medical 

explanation as to how the claimed November 1, 2017 employment incident caused or aggravated 

a medical condition. It provided a questionnaire for his completion which posed questions 

regarding the claimed employment incident and his receipt of medical treatment. In a separate 

letter of the even date, OWCP also requested additional information from the employing 

establishment. It afforded both appellant and the employing establishment 30 days to respond, but 

neither party responded within the afforded period.

By decision dated March 8, 2018, OWCP accepted that the November 1, 2017 incident had 

occurred, as alleged. However, it denied appellant’s claim finding that he had not established the 

medical component of fact of injury because he had not submitted medical evidence containing a 

medical diagnosis in connection with the accepted November 1, 2017 employment incident. 

OWCP concluded, therefore, that the “requirements have not been met for establishing that you 

sustained an injury as defined by the FECA.”

On March 25, 2019 appellant requested reconsideration of the March 8, 2018 OWCP 

decision.

Appellant submitted a November 1, 2017 emergency room report from Dr. David 

Kocherla, Board-certified in emergency medicine, who advised that appellant complained of acute 

midline and right-sided low back pain radiating down the back of his right thigh. He reported that 

his symptoms began at work on that date, noting that he was leaning over and felt a sharp pain 

when he went to stand up.3 Dr. Kocherla noted findings on physical examination of midline and 

right-sided lumbar tenderness to palpation, positive pain with right straight leg raise testing, and 

limited range of motion of the right leg secondary to pain. He diagnosed low back strain and right-

 

3 Another portion of the report noted that appellant complained of right hip pain after he sat down at work on 

November 1, 2017 and heard a “pop.”
3

sided sciatica, and prescribed pain medication. Appellant submitted administrative documents 

from his November 1, 2017 emergency room visit.

Appellant also submitted a November 1, 2017 report of x-rays of his lumbar spine which 

contained an impression of no acute finding.

By decision dated April 26, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, 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.4 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.5 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).6 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.7

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

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.8 If a request demonstrates 

clear evidence of error, OWCP will reopen the case for merit review.9

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

issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.11 Evidence that does not raise a 

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

 

4 5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

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.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

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

8 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB

499 (1990).

9 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See

also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).

10 A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D., 

Docket No. 16-1767 (issued January 12, 2017); Dean D. Beets, 43 ECAB 1153 (1992).

11 J.D., Docket No. 19-1836 (issued April 6, 2020); Leon N. Travis, 43 ECAB 227 (1999).
4

clear evidence of error.12 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.13 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.14 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.15

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

difficult standard.16 The claimant must present evidence which on its face shows that OWCP made 

an error.17 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.18 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.19

ANALYSIS

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

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.20 The last merit decision was OWCP’s 

March 8, 2018 decision which denied appellant’s traumatic injury claim. As appellant’s request 

for reconsideration was not received by OWCP until March 25, 2019, more than one year after the 

March 8, 2018 decision, the Board finds that it was untimely filed. Consequently, appellant must 

demonstrate clear evidence of error on the part of OWCP in denying his traumatic injury claim.21

 

12 S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

13 T.N., Docket No. 18-1613 (issued April 29, 2020).

14 Id.

15 J.M., Docket No. 19-1842 (issued April 23, 2020).

16 See supra note 6 at Chapter 2.1602.5(a) (February 2016); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).

17 K.W., Docket No. 19-1808 (issued April 2, 2020).

18 Id.

19 D.S., Docket No. 17-0407 (issued May 24, 2017).

20 See supra note 5.

21 See supra notes 8 and 9.
5

The Board further finds that appellant has not demonstrated clear evidence of error on the 

part of OWCP in its last merit decision dated March 8, 2018. OWCP denied his traumatic injury 

claim because he had not submitted medical evidence containing a medical diagnosis in connection 

with the accepted November 1, 2017 incident. The evidence submitted failed to raise a substantial 

question concerning the correctness of OWCP’s March 8, 2018 decision.22

Appellant submitted a November 1, 2017 emergency room report from Dr. Kocherla who 

indicated that appellant reported experiencing acute midline and right-sided low back pain 

radiating down the back of his right thigh after an incident at work on even date. Dr. Kocherla 

noted findings on examination and diagnosed low back strain and right-sided sciatica. The 

findings of November 1, 2017 x-rays of appellant’s lumbar spine contained an impression of no 

acute finding. Appellant also submitted administrative documents from his November 1, 2017 

emergency room visit. The Board notes, however, that Dr. Kocherla’s report and the diagnostic 

testing report did not provide a clear opinion on the cause of the diagnosed conditions and appellant 

failed to explain how the evidence submitted raised a substantial question regarding the correctness 

of OWCP’s March 8, 2018 decision. In addition, the submitted administrative documents would 

not demonstrate error with respect to the medical issue considered in that decision, i.e., whether 

appellant submitted sufficient medical evidence to establish a November 1, 2017 employment 

injury.

As noted, the term clear evidence is a difficult standard and it is not enough to show that 

the evidence could be construed to produce a contrary conclusion.23 None of the evidence 

submitted by appellant in connection with his untimely reconsideration request manifests on its 

face that OWCP committed an error in denying his traumatic injury claim. Appellant has not 

submitted evidence of sufficient probative value to raise a substantial question as to the correctness 

of OWCP’s decision.24 Thus, the evidence of record is insufficient to demonstrate clear evidence 

of error.

On appeal appellant asserts that OWCP improperly denied his claim for a traumatic injury 

and indicated that he has received several bills relating to treatment for his claimed injury that have 

not been paid. As noted, however, the Board does not have jurisdiction over the merits of the 

claim. Appellant has not presented evidence or argument that raises a substantial question as to 

the correctness of OWCP’s March 8, 2018 decision for which review is sought.25

The Board finds that the evidence submitted in support of the untimely request for 

reconsideration is insufficient to shift the weight of the evidence in favor of appellant’s claim or 

to raise a substantial question that OWCP erred in its March 8, 2018 decision. Accordingly, the 

 

22 See P.T., Docket No. 18-0494 (issued July 9, 2018).

23 See supra notes 13 and 16; see also W.D., Docket No. 19-0062 (issued April 15, 2019); R.M., Docket No. 

18-1393 (issued February 12, 2019).

24 See supra notes 11 and 12.

25 R.T., Docket No. 14-0779 (issued August 22, 2014).
6

Board finds that OWCP properly denied his reconsideration request, finding that 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 of the 

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

ORDER

IT IS HEREBY ORDERED THAT the April 26, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 26, 2020

Washington, DC

Christopher J. Godfrey, 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