United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

FEDERAL DEPOSIT INSURANCE 

CORPORATION, Arlington, VA, Employer

__________________________________________

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Docket No. 21-0022

Issued: August 18, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 7, 2020 appellant, through counsel, filed a timely appeal from an August 14, 

2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was an August 3, 2017 decision of the Board, which became final 30 days 

after issuance, and is not subject to further review.2 As there was no merit decision issued by 

OWCP within 180 days from the filing of this appeal, 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.

 

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 20 C.F.R. § 501.6(d).

3 5 U.S.C. § 8101 et seq.
2

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.4 The facts and circumstances set forth in

the Board’s prior decision and order are incorporated herein by reference. The relevant facts are 

as follows.

On June 9, 2015 appellant, then a 57-year-old financial analyst, filed a traumatic injury 

claim (Form CA-1) alleging that on February 20, 2015 he tripped on a strip of concrete when 

walking between the first and second floors of the employing establishment parking garage and 

“flew” forward, head first, into a concrete staircase, while in the performance of duty. He alleged 

that, as a result, he sustained a large bruise on his upper right arm and skinned both knees. 

Appellant also experienced a sore right thigh, forearm cramps, soreness in his back, and tingling 

in his right hand and fingers. 

After initial development, by decision dated July 28, 2015, OWCP denied appellant’s 

claim, finding that he had not established that the February 20, 2015 incident occurred as alleged. 

Appellant was also advised that he had not submitted any medical evidence containing a medical 

diagnosis causally related to the alleged incident. 

On June 7, 2016 appellant, through counsel, requested reconsideration and submitted 

additional evidence in support of his request. 

By decision dated August 24, 2016, OWCP denied modification of the July 28, 2015 

decision. It found that appellant had not responded to its June 25, 2015 letter to establish the 

factual component of his claim. 

On October 20, 2016 appellant, through counsel, appealed to the Board. By decision dated 

August 3, 2017,5the Board affirmed OWCP’s August 24, 2016 decision, as modified. The Board 

found that the evidence submitted was sufficient to establish that the incident occurred as alleged. 

However, the Board found that appellant had not submitted sufficient medical evidence to establish 

that the accepted employment incident caused or contributed to a diagnosed medical condition and 

resultant employment injury. 

OWCP subsequently received additional medical evidence. 

 

4 Docket No. 17-0086 (issued August 3, 2017); Order Remanding Case, Docket No. 19-1957 (issued 

June 22, 2020).

5

Id.
3

In reports dated March 1 and April 7, 2016, Dr. Michael E. Goldsmith, a Board-certified 

orthopedic surgeon, reviewed diagnostic testing, provided examination findings, and diagnosed 

low back pain, lumbar region intervertebral disc degeneration, and status post lumbar fusion. 

On August 7, 2018 appellant, through counsel, requested reconsideration. The following 

evidence was submitted in support of his request.

In a report dated November 3, 2015, Dr. Goldsmith related that appellant was seen that day 

for bilateral leg and low back pain. In his report, he provided examination findings, reviewed 

diagnostic tests, and detailed a history of injury, noting that appellant developed severe right leg 

pain following a fall in February 2015. Dr. Goldsmith diagnosed lumbago and lumbar 

pseudarthrosis and spinal stenosis.

A February 15, 2016 operative report from Dr. Goldsmith, diagnosed lumbar 

pseudarthrosis with L4-5 and L5-S1 degenerative disc disease. Appellant underwent surgery

wherein L4-S1 hardware was removed followed by posterior L5-S1 spinal fusion. 

In an October 24, 2017 report, Dr. Goldsmith noted that appellant was seen for complaints 

of neck pain. He noted a 1995 motor vehicle accident and that appellant complained of increased 

neck discomfort while clearing rocks on September 10, 2016. Examination and diagnostic test 

findings and medical history were detailed. Dr. Goldsmith diagnosed cervical spinal stenosis, 

cervical disc degeneration, and cervical disc displacement. 

In reports dated February 20 and March 20, 2018, Dr. Goldsmith, diagnosed low back pain, 

cervical disc degeneration with spinal stenosis, cervical disc displacement, cervicalgia, peripheral 

neuropathy, and two years status post lumbar fusion. He detailed appellant’s medical history, 

reviewed diagnostic tests, and provided examination findings.

By decision dated August 1, 2019, OWCP denied modification, finding that the medical 

evidence of record was insufficient to establish causal relationship between the diagnosed medical 

conditions and the accepted February 20, 2015 employment incident. 

On September 24, 2019 appellant, through counsel, filed an appeal with the Board. By 

order dated June 22, 2020, the Board set aside the August 1, 2019 decision, finding that OWCP 

erroneously applied the standard of review for timely requests for reconsideration.

6

 The Board 

remanded the case for application of appropriate standard for untimely requests for 

reconsideration.

By decision dated August 14, 2020, OWCP denied appellant’s August 7, 2018 request for 

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

 

6 Supra note 4. 
4

LEGAL PRECEDENT

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

merit review.7 This discretionary authority, however, is subject to certain restrictions.8 OWCP’s 

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

the date of the original OWCP merit decision.9 A right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues.10 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).11 Imposition of this one-year 

filing limitation does not constitute an abuse of discretion.12

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.13 If a request for 

reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit

review.14

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

issue that was decided by OWCP.15 The evidence must be positive, precise, and explicit, and must 

manifest on its face that OWCP committed an error.16 Evidence which does not raise a substantial 

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

evidence of error.17 It is not enough merely to demonstrate that the evidence could be construed 

 

7 Supra note 3 at § 8128(a); see P.A., Docket No. 20-0061 (issued January 29, 2021); B.W., Docket No. 19-0626 

(issued March 4, 2020); Y.S., Docket No. 08-0440 (issued March 16, 2009).

8 20 C.F.R. § 10.607(a).

9

Id. at § 10.607(a); 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).

10 J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

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

12 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); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

13 See supra note 8 at § 10.607(b); G.B., supra note 6; M.H., Docket No. 18-0623 (issued October 4, 2018);

Charles J. Prudencio, 41 ECAB 499 (1990).

14 Y.J., Docket No. 18-0495 (issued December 10, 2019); L.C., Docket No. 18-1407 (issued February 14, 2019);

M.L., Docket No. 09-0956 (issued April 15, 2010); supra note 8 at § 10.607(b); supra note 11 at Chapter 2.1602.5 

(February 2016).

15 P.A., supra note 7; W.H., Docket No. 20-0395 (issued October 23, 2020); S.T., supra note 12; Darletha Coleman, 

55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

16 Y.J., supra note 6; R.C., Docket No. 18-1441 (issued October 21, 2019); S.T., supra note 12.

17 P.A., supra note 7; L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 9; Leon J. Modrowski, 

55 ECAB 196 (2004).
5

so as to produce a contrary conclusion.18 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.19 To demonstrate 

clear evidence of error, the evidence submitted must not only be of 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.20 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.21

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.22 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.23 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.24

ANALYSIS

The Board finds that this case is not in posture for decision. 

Preliminarily, the Board notes that it is unnecessary for the Board to consider the timeliness 

of appellant’s August 7, 2018 reconsideration request as the Board considered the evidence 

relative to that issue in the June 22, 2020 order. Findings made in prior Board decisions and orders

are res judicata absent any further review by OWCP, under section 8128 of FECA.25

 

18 P.A., supra note 7; W.H., supra note 15: V.G., supra note 9; see E.P., Docket No. 18-0423 (issued September 11, 

2018); Leona N. Travis, 43 ECAB 227 (1991).

19 P.A., supra note 7; L.B., supra note 17; V.G., supra note 9; see E.P., id.; Nelson T. Thompson, 43 ECAB 

919 (1992).

20 D.G., Docket No. 18-1038 (issued January 23, 2019); Leon D. Faidley, Jr., supra note 12.

21 I.A. ̧ Docket No. 19-1910 (issued September 29, 2020); W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., 

Docket No. 18-0693 (issued December 7, 2018).

22 Supra note 3 at § 8124(a).

23 Supra note 2 at 10.126.

24 K.W., Docket No. 19-0808 (issued April 2, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014);

D.E., Docket No. 13-1327 (issued January 8, 2014); L.C., Docket No. 12-0978 (issued October 26, 2012); Federal 

(FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all decisions should 

contain findings of fact sufficient to identify the benefit being denied and the reason for the disallowance).

25 C.M., Docket No. 19-1211 (issued August 5, 2020); J.T., Docket No. 18-1757 (issued April 19, 2019).
6

On August 13, 2020 OWCP summarily denied appellant’s request for reconsideration 

without complying with the review requirements of FECA and its implementing regulations.26 As 

noted above, 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.27 Its regulations at 20 C.F.R. 

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

statement of reasons.28 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.29 In the August 14, 2020 decision, OWCP denied 

appellant’s August 7, 2018 reconsideration request, finding it was untimely filed as it was received 

more than a year following the most recent merit decision, which was a Board decision dated 

August 3, 2017, but failed to analyze the evidence or argument as to whether it was sufficient to 

demonstrate clear evidence of error. It noted that new medical evidence accompanied appellant’s

reconsideration request and summarily concluded that the evidence failed to establish clear 

evidence of error. However, OWCP did not review the evidence submitted following its last merit 

review and did not make findings explaining the basis of its decision. As such, the Board is 

precluded from reviewing this decision.

The Board will therefore set aside OWCP’s August 14, 2020 decision and remand the case 

for findings of fact and a statement of reasons, to be followed by an appropriate decision on 

appellant’s untimely reconsideration request.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

26 See Order Remanding Case, Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case, C.G., 

Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30, 

2020); see also 20 C.F.R. § 10.607(b).

27 Supra note 22. 

28 Supra note 23.

29 Supra note 24 at Chapter 2.1400.5.
7

ORDER

IT IS HEREBY ORDERED THAT the August 14, 2020 decision of the Office of 

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

consistent with this decision of the Board.

Issued: August 18, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board