United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS STATION, Camp Pendleton, CA, 

Employer

__________________________________________

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Docket No. 19-0365

Issued: March 17, 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 October 26, 2018 appellant filed a timely appeal from an October 15, 2018 nonmerit 

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

elapsed from OWCP’s last merit decision, dated July 31, 2014, 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.

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

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On May 13, 2013 appellant, then a 67-year-old industrial mechanic, filed a traumatic injury 

claim (Form CA-1) alleging that on November 8, 2012 he twisted his right knee when he stepped 

down off a platform after inspecting a new well while in the performance of duty. He did not stop 

work. No evidence was submitted with appellant’s claim.

In a development letter dated June 18, 2013, OWCP advised appellant that the evidence of 

record was insufficient to establish that she actually experienced the incident alleged to have 

caused the injury as a result of his work duties, and that he had not submitted any medical evidence. 

It requested that she respond to a questionnaire, and submit additional medical evidence. OWCP 

afforded appellant 30 days to submit the necessary evidence. 

OWCP received medical evidence, including an occupational health permit dated 

November 9, 2012 by Dr. James A. Caviness, an employing establishment physician Boardcertified in occupational medicine. Dr. Caviness noted a history of the alleged November 8, 2012 

employment incident and noted complaints of right knee and right shoulder pain and advised that 

appellant could return to limited-duty work with restrictions for seven days. 

OWCP also received a right knee x-ray report dated February 12, 2013 by Dr. Robert G. 

Connolly, II, a Board-certified diagnostic radiologist. Dr. Connolly found degenerative changes 

in all three compartments of the knee. He also found lateral subluxation of the patella, 

suprapatellar joint effusion, enthesophyte formation at the quadriceps tendon insertion on the 

patella, corticated bony density in the region of the tibial tuberosity with soft tissue swelling 

involving the distal patella and tendon, and spurring of the tibial spines.

In a chronological record of medical care (Standard Form-600) dated February 13 and 14, 

2013, Dr. Earl E. Miller, a Board-certified family practitioner, provided assessments of systemic 

hypertension, chronic right knee joint pain, and right shoulder impingement. 

By decision dated July 23, 2013, OWCP accepted that the November 8, 2012 employment 

incident occurred as alleged, but denied appellant’s traumatic injury claim, finding that the medical 

evidence of record did not contain a diagnosed medical condition in connection with the accepted 

employment incident. It noted that “pain” is a symptom and not a medical diagnosis. 

Appellant subsequently requested reconsideration and submitted reports dated July 16 and

November 18, 2013 and April 14, 2014 from Dr. Bradley L. Baum, an attending Board-certified

orthopedic surgeon. Dr. Baum provided an impression of probable long history of an anterior 

cruciate ligament (ACL) tear of the right knee in the late 1970s. He opined that this condition was 

exacerbated by the accepted November 8, 2012 employment incident. Dr. Baum also provided an 

impression of probable acute medial meniscus tear and opined that this condition was caused by

 

2 Docket No. 18-1669 (issued December 19, 2018). 
3

the accepted work incident. He requested authorization for a right knee magnetic resonance

imaging (MRI) scan study. By decisions dated November 6, 2013 and March 11 and July 31, 

2014, OWCP reviewed the merits of the claim, but denied modification. It found that the medical 

evidence submitted failed to provide a definitive diagnosis of a right knee condition or a 

rationalized medical opinion explaining the causal relationship between the knee condition and the 

accepted November 8, 2012 employment incident.

On February 23, 2015 appellant again requested reconsideration. In an undated letter, he 

contended that OWCP’s prior decisions were deficient as they failed to mention an individual who 

had witnessed the accepted November 8, 2012 employment incident. Appellant also disagreed 

with OWCP’s finding that the weight of the medical evidence of record established that his right 

knee was unremarkable. He claimed that he had continuing pain and discomfort since the 

November 8, 2012 employment incident. Appellant noted that he would submit additional medical 

evidence, however, additional evidence was not received. 

By decision dated March 13, 2015, OWCP denied appellant’s February 23, 2015 request 

for reconsideration of the merits of his claim, finding that the evidence submitted was irrelevant 

and/or immaterial to the medical basis on which his claim was denied.3

In an undated statement and letter received by OWCP on June 12, 2018, appellant 

requested reconsideration. He contended that his physician found that he probably had a right 

knee medial meniscus tear based on x-rays and that OWCP denied the physician’s request for 

authorization for a necessary MRI scan. Appellant believed that his claim would have been 

approved if his physician had used a word other than “probably” and reported that he had sustained 

a tear caused by his employment. He also claimed that he was treated unfairly because he went to 

a medical facility that had no experience with on-the-job injuries. Appellant related that if he had 

known that he could have seen his family physician, who would have a provided a proper right 

knee diagnosis, then he would have done so and his claim would have been accepted. 

Appellant submitted an additional report dated November 2, 2012 from Dr. Caviness who 

again noted a history of the accepted November 8, 2012 employment incident. He conducted an 

examination and provided an assessment of joint pain localized in the right knee. Dr. Caviness

reiterated his prior opinion that appellant could return to limited-duty work with restrictions for 

seven days.

Appellant also submitted additional health records (Standard Form-600) dated 

February 15, 2013 and May 8 through 28, 2013 from Dr. Miller who performed a physical

examination, reviewed diagnostic test results, and provided an assessment of chronic lower back 

pain. Dr. Miller also reiterated his prior assessment of chronic right knee joint pain. He released 

appellant without limitations.

 

3 On September 4, 2018 appellant filed an appeal with the Board of the March 13, 2015 OWCP decision. By order 

dated December 19, 2018, the Board dismissed appellant’s appeal, finding that his appeal to the Board was untimely 

filed. Order Dismissing Appeal, Docket No. 18-1669 (issued December 19, 2018).
4

Appellant underwent diagnostic testing on April 8, 2013. A right shoulder x-ray performed 

by Dr. Harold I. Nadel, a Board-certified diagnostic radiologist, provided an impression of mild 

degenerative changes in the acromioclavicular (AC) joint and superior lateral humeral head. 

Appellant underwent further diagnostic testing performed by Dr. Connolly. On 

February 12, 2013 Dr. Connolly reported that a right shoulder x-ray revealed AC arthrosis, subtle 

periosteal reaction along the superior distal third of the right clavicle which may represent posttraumatic change, and irregularity of the superior bony glenoid. He also reported that there was 

no dislocation of the glenohumeral joint or definite acute fracture. Dr. Connolly related that a right 

shoulder MRI scan should be considered. On July 18, 2014 he found that a right knee x-ray 

showed tri-compartment osteoarthritis. Dr. Connolly further found no fracture, dislocation, or 

significant joint effusion. There were remote stress changes in the proximal posterior right tibia. 

Also, on July 18, 2014 Dr. Connolly reported that a left knee x-ray demonstrated remote stress 

changes involving the proximal tibia and fibula, and degenerative changes of the patellofemoral 

joint. There was no joint effusion. Appellant resubmitted Dr. Connolly’s February 12, 2013 right 

knee x-ray report. 

By decision dated October 15, 2018, OWCP denied appellant’s request for further merit 

review of his claim, finding that his request 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 application for review is untimely filed, OWCP must nevertheless undertake a limited

 

4 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

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).
5

review to determine whether it demonstrates clear evidence of error.

8

 If an application 

demonstrates clear evidence of error, it 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. The evidence must be positive, precise, and explicit and must 

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

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

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

produce a contrary conclusion. 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. 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.10

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

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

an error (for example, proof that a schedule award was miscalculated). 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.11 

The Board makes an independent determination of whether a claimant has demonstrated clear 

evidence of error on the part of OWCP.12

ANALYSIS

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

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

OWCP’s regulations13 and procedures14 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.15 

 

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, 501-02 (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 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

11 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

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

13 20 C.F.R. § 10.607(a); see J.W., supra note 10; Alberta Dukes, 56 ECAB 247 (2005).

14 Supra note 6 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
6

The most recent merit decision was OWCP’s July 31, 2014 decision which found that the evidence 

of record was insufficient to establish a firm medical diagnosis causally related to the accepted 

November 8, 2012 employment incident. As his request for reconsideration was not received by 

OWCP until June 12, 2018, more than one year after the July 31, 2014 decision, the Board finds 

that it was untimely filed. Because appellant’s request was untimely, he must demonstrate clear 

evidence of error on the part of OWCP in having denied his traumatic injury claim.

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

the part of OWCP in its last merit decision. As stated, OWCP denied his traumatic injury claim 

as the medical evidence of record failed to establish a firm medical diagnosis causally related to 

the accepted November 8, 2012 employment incident.

In his untimely request for reconsideration, appellant contended that his physician, 

presumably Dr. Baum, found that he “probably” had a right knee medial meniscus tear based on 

MRI scan findings. OWCP denied appellant’s claim, finding that Dr. Baum failed to provide a 

firm medical diagnosis in connection with the accepted November 8, 2012 employment incident. 

Appellant’s lay opinion on the medical evidence is irrelevant as the Board has held that lay

individuals are not competent to render a medical opinion.

16

 His further contention that he was 

treated unfairly because he was evaluated at a medical facility that had no experience with 

employment-related injuries and that his claim would have been accepted if he had instead sought 

treatment from his physician who would have provided a proper right knee diagnosis is also 

irrelevant as the underlying issue is medical in nature. Thus, it does not establish that he had a 

firm right knee medical diagnosis due to the accepted employment incident.17 The Board finds, 

therefore, that the arguments appellant submitted did not raise a substantial question concerning 

the correctness of OWCP’s July 31, 2014 merit decision.

The medical reports of Dr. Caviness and Dr. Miller submitted by appellant with his 

June 12, 2018 reconsideration request are also insufficient to demonstrate clear evidence of error

with respect to OWCP’s July 31, 2014 merit decision. This evidence, which merely addressed 

right knee and lower back pain, is insufficient to shift the weight of the medical evidence.

Additionally, the diagnostic testing reports of Dr. Nadel and Dr. Connolly also are 

insufficient to establish that OWCP erred in its denial of appellant’s claim.18 Diagnostic test

reports do not raise a substantial question as to the correctness of OWCP’s July 31, 2014 merit 

decision or demonstrate clear evidence of error. These reports therefore do not demonstrate clear 

evidence of error and would not require a review of a case.19 Although appellant resubmitted the 

February 12, 2013 diagnostic test report of Dr. Connolly on reconsideration, he did not sufficiently 

explain how largely duplicative or cumulative evidence raised a substantial question as to the 

 

16 Z.S., Docket No. 16-1745 (issued May 18, 2017).

17 Id.

18 See D.G., Docket No. 18-1038 (issued January 23, 2019); G.B., Docket No. 13-1260 (issued December 2, 2013); 

see also W.R., Docket No. 09-2336 (issued June 22, 2010).

19 See D.G., id.; M.C., Docket No. 16-1135 (issued September 11, 2017); G.B., id.
7

correctness of OWCP’s decision.20 For these reasons, the Board finds that the reports of Dr. Nadel 

and Dr. Connolly are insufficient to shift the weight of the evidence in favor of appellant or raise 

a fundamental question as to the correctness of OWCP’s decision denying his request for 

reconsideration.

Appellant also submitted Dr. Connolly’s February 12, 2013 right knee x-ray report, which 

was previously of record. This evidence, however, does not manifest on its face that OWCP 

committed an error in its July 31, 2014 decision.21

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

difficult standard.22 As stated above, the claimant must present evidence which on its face shows

that OWCP made an error (for example, proof that a schedule award was miscalculated). 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 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 July 31, 2014 decision. Accordingly, the

Board finds that OWCP properly denied appellant’s reconsideration request, as 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, 

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

 

20 See G.B., Docket No. 18-1629 (issued April 15, 2019); P.B., Docket No. 18-0265 (issued September 5, 2018); 

D.E., 59 ECAB 438 (2008).

21 See S.M., Docket No. 17-0385 (issued June 26, 2018).

22 See supra note 11; S.C., Docket No. 18-0126 (issued May 14, 2019).

23 Id.; see also J.S., Docket No. 16-1240 (issued December 1, 2016); Federal (FECA) Procedure Manual, Part 2 --

Claims, Reconsiderations, Chapter 2.1602.5(a) (February 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the October 15, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 17, 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