United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Marfa, TX, Employer

__________________________________________

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Docket No. 21-0613

Issued: October 8, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 12, 2021 appellant filed a timely appeal from a February 16, 2021 nonmerit 

decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days 

elapsed from OWCP’s last merit decision, dated March 6, 2019, 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 the claim.

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

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 17, 2019 appellant, then a 43-year-old patrol agent, filed a traumatic injury 

claim (Form CA-1) alleging that, earlier that day, he sustained an irritation of his neck and throat 

and a temporary loss or lessening of his voice when a detainee struck him in the throat with his 

hand while in the performance of duty.

In a development letter dated January 30, 2019, OWCP notified appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence required and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the 

necessary evidence.

In response, appellant submitted an authorization for examination and/or treatment (Form 

CA-16) completed by the employing establishment on January 17, 2019 noting that he had been 

struck on the left side of his neck while in the performance of duty. In the attending physician’s 

portion of the form, Part B, an emergency room practitioner whose signature is illegible found a 

normal examination, diagnosed a neck contusion, and returned appellant to full-duty work.

Appellant also submitted a January 17, 2019 return to work slip signed by William Kyle 

Scabrough, a registered nurse.

By decision dated March 6, 2019, OWCP accepted that the January 17, 2019 employment 

incident had occurred as alleged, but denied appellant’s traumatic injury claim as he did not submit 

sufficient medical evidence. It found that, as the January 17, 2019 form report did not contain a 

legible signature, it was unable to verify the specialist who signed the report. OWCP concluded, 

therefore, that the requirements had not been met to establish an injury as defined by FECA.

On January 26, 2021 appellant requested reconsideration. He contended that a hospital 

physician had signed the Form CA-16. Appellant asserted that he had already submitted the 

required factual and medical evidence to OWCP, but that OWCP had not associated those 

documents with his case record. He submitted additional evidence.

In a January 17, 2019 report, Dr. William C. Stief, a physician specializing in emergency 

medicine, noted that appellant had been struck in the side of his throat during an altercation at 

work. On examination, he found a nontender larynx and normal voice. Dr. Stief diagnosed a neck 

contusion and returned appellant to full duty.

In a January 24, 2019 employing establishment safety investigation data form, an 

employing establishment official noted that appellant had been struck in the throat while in the 

performance of duty.

On reconsideration, appellant asserted, in a June 11, 2020 statement that, he sustained no 

other injuries between the January 17, 2019 employment incident and the time he reported it to his 

supervisor, and that he had no relevant preexisting conditions. He provided a December 15, 2016 

report diagnosing metatarsalgia and October 23, 2019 reports about a right ankle problem.

Appellant also submitted copies of the Form CA-16 previously of record.
3

By decision dated February 16, 2021, 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.2 This discretionary authority, however, is subject to certain restrictions.3 OWCP’s 

regulations establish a one-year time limitation for requesting reconsideration, which begins on 

the date of the original OWCP merit decision.4 Aright to reconsideration within one year also 

accompanies any subsequent merit decision on the issues. 5 Timeliness is determined by the 

document receipt date, the received date in OWCP’s Integrated Federal Employees’Compensation 

System (iFECS).6 Imposition of this one-year filing limitation does not constitute an abuse of 

discretion.7

When a reconsideration request is untimely, OWCP undertakes a limited review to 

determine whether the request demonstrates clear evidence that OWCP’s final merit decision was 

in error.8 Its 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, if his or her request 

for reconsideration demonstrates clear evidence of error on the part of OWCP. 9 In this regard, 

OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior 

evidence of record.10

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

issue, which was decided by OWCP.11 The evidence must be positive, precise, and explicit and 

2

5 U.S.C. § 8128(a); see B.W., Docket No. 19-0626 (issued March 4, 2020); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

3

20 C.F.R. § 10.607(a).

4

Id.; T.T., Docket No. 19-1624 (issued October 28, 2020); V.G., Docket No. 19-0038 (issued June 18, 2019); J.W., 

Docket No. 18-0703 (issued November 14, 2018);Alberta Dukes, 56 ECAB 247 (2005).

5

J.W., id.; RobertF. Stone, 57 ECAB 292 (2005).

6 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

7 A.M., Docket No. 20-0143 (issued October 28 2020); S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., 

Docket No. 09-0599 (issued June 3, 2009); LeonD. Faidley, Jr., 41 ECAB 104 (1989).

8 L.N., Docket No. 20-0742 (issuedOctober 26, 2020); C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., 

Docket No. 10-0323 (issued September 2, 2010); LeonJ. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 

44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).

9 D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

10 V.G., supra note 4; E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB 

919 (1992).

11 W.H., Docket No. 20-0395 (issued October 23, 2020); Darletha Coleman, 55 ECAB 143 (2003).
4

must manifest on its face that OWCP committed an error.12 Evidence which does not raise a 

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

clear evidence of error.13 It is not enough merely to demonstrate that the evidence could be 

construed so as to produce a contrary conclusion.14 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. 15 To 

demonstrate clear evidence of error, the evidence submitted must not only be o f sufficient 

probative value to create a conflict in 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 makes an 

independent determination of whether a claimant has 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.17

ANALYSIS

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

reconsideration was untimely filed. 

A request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.18 As previously explained, timeliness is determined by the 

document receipt date, i.e., the “received date” into iFECS.19 As appellant’s request for 

reconsideration was not received into iFECS until January 26, 2021, more than one year after the 

issuance of OWCP’s March 6, 2019 merit decision, it was untimely filed. Consequently, he must 

demonstrate clear evidence of error by OWCP in its March 6, 2019 merit decision.20

The Board further finds, that appellant has established clear evidence of error in OWCP’s 

March 6, 2019 merit decision.

In its March 6, 2019 decision, OWCP denied appellant’s claim based on the January 17, 

2019 form report, i.e., Part B, the attending physician’s portion of Form CA-16, in which a medical 

12 S.T., supra note 7; Pasquale C. D Arco, 54 ECAB 560 (2003); LeonaN. Travis, 43 ECAB 227 (1991).

13 L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 4; LeonJ. Modrowski, supra note 8.

14 W.H., supra note 11; V.G., supra note 4.

15 L.B., supra note 13; V.G., supranote 4.

16 D.G., supra note 9.

17 See P.A., Docket No. 20-0061 (issued January 29, 2021); George C. Vernon, 54 ECAB 319 (2003); Gregory 

Griffin, 41 ECAB 186 (1989), petitionfor recon. denied, 41 ECAB 458(1990).

18 20 C.F.R. § 10.607(a).

19 Id.

20 Supra note 18at § 10.607(b). See also W.H., Docket No. 20-0395 (issued October 23, 2020).
5

practitioner diagnosed a neck contusion. OWCP found that this report was insufficient to establish 

that the accepted January 17, 2019 employment incident had caused an injury. The Board finds, 

however, that OWCP improperly denied appellant’s claim. OWCP may accept a case without a 

medical report where the condition is a minor one,such as a burn, laceration, insect sting, or animal 

bite, that can be identified on visual inspection by a layperson, and no dispute exists as to fact of 

injury.21 A contusion is a visible injury capable of being diagnosed by a layperson. This diagnosis 

was included in Part B of the January 17, 2019 Form CA-16 and OWCP accepted that the 

January 17, 2019 employment incident occurred at the time and place, and in the manner alleged. 

Therefore, a medical report was not necessary in this case for a contusion to be accepted as an 

injury.

22

 Dr. Stief reconfirmed this diagnosis in his January 17, 2019 report which appellant 

submitted on reconsideration. The Board finds that OWCP’s failure to accept contusion as a 

visible injury demonstrates clear evidence of error.

Therefore, the Board finds that appellant has raised a substantial question as to the 

correctness of the March 6, 2019 merit decision. The Board will reverse OWCP’s February 16, 

2021 decision and remand the case for an appropriate decision on the merits of appellant’s claim.

CONCLUSION

The Board finds that appellant has demonstrated clear evidence of error in the March 6, 

2019 merit decision and, thus, OWCP improperly denied his request for reconsideration of the 

merits of his claim.

21 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a) 

(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) 

(January2013). R.H., Docket No. 20-1684 (issued August 27, 2021); M.B., Docket No. 15-0287 (issued August20, 

2015); Pearlene Morton, 52 ECAB 493 (2001).

22 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the February 16, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed and the case is remanded for further proceedings 

consistent with this decision of the Board.23

Issued: October 8, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

23 The Board notes that the employing establishment issued a completed Form CA-16 on January 17, 2019. A 

completed Form CA-16authorization may constitute a contract for payment of medical expenses to a medical facility 

or physician, when properly executed. The form creates a contractual obligation, which does not involve the employee 

directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. 

§ 10.300(c); C.B., Docket No. 19-1882 (issued April1, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); 

Tracy P. Spillane, 54 ECAB608(2003).