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. 22-0542

Issued: August 17, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 1, 2022 appellant, through counsel, filed a timely appeal from a January 31, 

2022 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’

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). See S.S., Docket No. 21-0627 (issued June 22, 2022); S.M., Docket No. 21-0392 (issued 

August 12, 2021); G.G., Docket No. 18-1074 (issued January 7, 2019).
2

Compensation Act3(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.4 The facts and circumstances as set forth 

in the prior Board decisions 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 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, headfirst, 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. 

OWCP also advised appellant 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.

OWCP subsequently received additional medical evidence.

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.

3

5 U.S.C. § 8101 et seq.

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

June 22, 2020); Docket No. 21-0022 (issued August 18, 2021).
3

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 February 20, 2015 incident 

occurred as alleged, and that appellant was in the performance of duty during its occurrence. 

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

establish that the accepted employment incident caused an employment injury.

On August 7, 2018 appellant, through counsel, requested reconsideration. Additional

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 noted diagnoses of lumbar 

pseudarthrosis with L4-5 and L5-S1 degenerative disc disease. Dr. Goldsmith related that 

appellant had undergone removal of L4-S1 hardware and 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 report, 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 

complaints, 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 

condition and the accepted February 20, 2015 employment incident.

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

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

applied the standard of review for timely requests for reconsideration.6 The Board remanded the 

case to OWCP for application of the appropriate standard of review 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.

5 Docket No. 17-0086 (issued August3, 2017).

6 Order Remanding Case, Docket No. 19-1957 (issued June22, 2020).
4

On October 7, 2020 appellant, through counsel,filed an appeal with the Board. By decision 

dated August 18, 2021, the Board set aside the August 14, 2020 OWCP nonmerit decision,finding 

OWCP’s decision failed to contain findings of fact and a statement of reasons.

7

 The Board 

remanded the case to OWCP to provide findings of fact and a statement of reasons, to be followed 

by an appropriate decision on appellant’s untimely reconsideration request.

By decision dated January 31, 2022, OWCP reviewed Dr. Goldsmith’s reports submitted 

since November 3, 2015. It denied appellant’s August 7, 2018 request for reconsideration,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.8 This discretionary authority, however, is subject to certain restrictions.9 OWCP’s 

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

the date of the original OWCP merit decision.10 A right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues.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 request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error. 14 If a request for 

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

review.15

7 Docket No. 21-0022 (issued August18, 2021).

8

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).

9

20 C.F.R. § 10.607(a).

10 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).

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

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

13 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).

14 See supra note 9 at § 10.607(b); S.J.. Docket No. 21-0217 (issued December 16, 2021); M.H., Docket No. 18-

0623 (issued October 4, 2018);Charles J. Prudencio, 41 ECAB 499 (1990).

15 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 April15, 2010); supra note 9 at § 10.607(b); supra note 12 at Chapter 2.1602.5 

(September 2020).
5

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

issue that 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 demonstrate 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 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.21 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. 22

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.

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 found in its June 22, 2020 

order that his request was untimely filed. Findings made in prior Board decisions and/or orders 

are res judicata absent further merit review by OWCP under section 8128 of FECA.

23

As appellant’s request for reconsideration was untimely filed, appellant must demonstrate 

clear evidence of error on the part of OWCP in its August 24, 2016 decision.

16 P.A., supra note 8; W.H., Docket No. 20-0395 (issued October 23, 2020); S.T.,supra note 13; Darletha Coleman, 

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

17 Y.J., supra note 15;R.C., Docket No. 18-1441 (issued October 21, 2019); S.T.,supranote 13.

18 P.A., supra note 8; L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 10; Leon J. Modrowski, 

55 ECAB 196 (2004).

19 P.A., supra note 8; W.H.,supranote 16: V.G., supranote 10; see E.P., Docket No. 18-0423 (issued September 11, 

2018); LeonaN. Travis, 43 ECAB 227 (1991).

20 P.A., supra note 8; L.B., supra note 18; V.G., supra note 10; see E.P., id.; Nelson T. Thompson, 43 ECAB 

919 (1992).

21 D.G., Docket No. 18-1038 (issued January 23, 2019); LeonD. Faidley, Jr., supranote 13.

22 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).

23 S.J., supra note 14; C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 

476 (1998).
6

On reconsideration appellant submitted a series of medical reports dated November 3, 2015

to March 20, 2018 from Dr. Goldsmith, which noted appellant’s history of injury and diagnosed

lumbago, lumbar pseudarthrosis and spinal stenosis, cervical spinal stenosis, cervical disc 

degeneration, and cervical disc displacement.

The Board finds that the medical evidence submitted on reconsideration is insufficient to 

demonstrate clear of evidence of error in OWCP’s August 24, 2016 decision.

24

 

Appellant’s claim was denied by OWCP because he had not submitted sufficient medical 

evidence to establish that the diagnosed medical conditions were causally related to the accepted 

employment incident of February 20, 2015. None of the reports from Dr. Goldsmith received on 

reconsideration contained an opinion on the causal relationship between the incident of 

February 20, 2015, which resulted in diagnoses of diagnosed lumbago, lumbar pseudarthrosis and 

spinal stenosis, cervical spinal stenosis, cervical disc degeneration, and cervical disc displacement, 

and is of no probative value on the issue of causal relationship.

25

The term “clear evidence of error” is intended to represent a difficult standard and the 

evidence provided here is not the type of positive, precise, and explicit evidence,which manifested 

on its face that OWCP committed an error in its August 24, 2016 decision.

26

 The Board finds that 

the medical evidence submitted on reconsideration is insufficient to shift the weight of the 

evidence in favor of his claim or raise a fundamental question as to the correctness of OWCP’s 

decision denying her request for reconsideration.

27

As the evidence submitted in support of appellant’s untimely request for reconsideration is 

insufficient to shift the weight of the evidence in favor of her claim or raise a substantial question 

as to the correctness of OWCP’s August 24, 2016 decision, the Board finds that OWCP properly 

denied his reconsideration request.

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.

24 R.W., Docket No. 21-1164 (issued April5, 2022); A.S., Docket No. 18-1556 (issued September 17, 2019); L.B., 

supra note 18.

25 R.W., id.; D.C., Docket No. 19-1093 (issued June25, 2020);see L.B., Docket No. 18-0533 (issued August 27, 

2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

26 Supra note 12at Chapter 2.1602.5 (September 2020); see also 20 C.F.R. § 10.607(b).

27 R.W., supra note 24; C.M., Docket No. 19-0585 (issued August 15, 2019); J.W., Docket No. 18-0703 (issued 

November 14, 2018);Robert G. Burns, 57 ECAB 657 (2006).
7

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 17, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board