United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.O., Appellant

and

DEPARTMENT OF AGRICULTURE

U.S. FOREST SERVICE, SHOSHONE 

NATIONAL FOREST, Cody, WY, Employer

__________________________________________

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Docket No. 20-1552

Issued: March 29, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 4, 2020 appellant filed a timely appeal from May 21, 2020 nonmerit decisions

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

from OWCP’s last merit decision, dated March 29, 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.

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

On February 12, 2018 appellant, then a 48-year-old law enforcement officer, filed a 

traumatic injury claim (Form CA-1) alleging that on February 11, 2018 he injured his left arm, 

 

1 5 U.S.C. § 8101 et seq.
2

shoulder, elbow and wrist, as well as his lower back, when he slipped on ice and fell after loading 

his snowmobile onto a trailer while in the performance of duty. On the reverse side of the claim 

form D.H., an employing establishment supervisor, acknowledged that appellant was in the 

performance of duty at the time of the alleged incident. Appellant did not stop work.

OWCP received February 12 and 20, 2018 medical notes signed by physician assistants, 

which contained diagnoses of left-sided medial epicondylitis at the elbow and left ulnar nerve 

entrapment. It also received an undated report of work status (Form CA-3) signed by C.B., an 

injury compensation specialist for the employing establishment, noting that appellant returned to 

full-time modified-duty work with restrictions on February 20, 2018.

In a February 22, 2018 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. In the same letter, OWCP 

informed the employing establishment that if appellant was treated at an employing establishment

medical facility for the alleged injury, it must provide treatment notes. In a separate development 

letter of even date, it notified the employing establishment of the traumatic injury claim and 

requested additional information surrounding the alleged incident. OWCP afforded both parties 

30 days to submit the necessary evidence.

In a February 11, 2018 emergency room note, Dr. Deborah Weems, a family practice 

specialist, noted a history that appellant fell from a snowmobile trailer that day at work, landing 

on his left side. She noted her physical examination as normal, and referred appellant for 

computerized tomography (CT) scans of the cervical, thoracic, and lumbar spine. Dr. Weems

diagnosed a strain of the left side, status post fall.

CT scans of the cervical, thoracic, and lumbar areas of the spine dated February 11, 2018 

were negative for any acute abnormalities.

OWCP received additional treatment notes dated February 12 and 20, 2018 and a work 

capacity evaluation (Form OWCP-5c) dated February 26, 2018, all of which were signed by a 

physician assistant. In a follow-up note dated March 19, 2018, a physician assistant released 

appellant to return to full-duty work. In a Form CA-3 of even date, C.B. noted that appellant had 

returned to regular-duty work without restrictions that day.

By decision dated March 29, 2018, OWCP denied appellant’s traumatic injury claim, 

finding that he had not submitted evidence containing a medical diagnosis in connection with the 

accepted February 11, 2018 employment incident. Consequently, it found that appellant had not 

met the requirements to establish an injury as defined by FECA.

On May 1, 2018 appellant requested review of the written record by a representative of 

OWCP’s Branch of Hearings and Review.

OWCP received duplicate copies of the physician assistants’ notes previously of record,

which had been amended to include an illegible signature and handwritten date of April 30, 2018.

By decision dated May 30, 2018, OWCP’s hearing representative denied appellant’s 

request for a review of the written record, finding that the request was untimely filed as it was not 

postmarked within 30 days of the March 29, 2018 decision. After exercising its discretion, the 
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hearing representative informed appellant that the merits of his claim could equally well be 

addressed by requesting reconsideration and submitting evidence not previously considered.

OWCP subsequently received duplicate copies of medical evidence previously of record.

On May 13, 2020 appellant requested reconsideration. The request indicated that appellant 

wished to seek reconsideration “as outlined in the e-mail below.” Attached thereto was an e-mail 

dated April 6, 2020 summarizing the status of appellant’s claim and noting that he had not filed

other appeals following OWCP’s May 30, 2018 decision.

By decision dated May 21, 2020, it denied appellant’s request for reconsideration of its 

March 29, 2018 decision. In both decisions, OWCP found that appellant’s request for 

reconsideration 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. For 

instance, a request for reconsideration must be received within one year of the date of OWCP’s 

decision for which merit review is sought.3 Timeliness is determined by the document date, i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).4

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

When a request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether the request demonstrates clear evidence of error.5 OWCP’s 

regulations and 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(a), if claimant’s 

request for reconsideration demonstrates clear evidence of error on the part of OWCP.6

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.7 The Board 

notes that clear evidence of error is intended to represent a difficult standard.8 Evidence that does 

not raise a substantial question as to the correctness of OWCP’s decision is insufficient to 

 

2

Id. at § 8128(a); U.C., Docket No. 19-1753 (issued June 10, 2020); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

3 20 C.F.R. § 10.607(a). 

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

5 20 C.F.R. § 10.607(b); T.C., Docket No. 19-1709 (issued June 5, 2020); Charles J. Prudencio, 41 ECAB 499, 

501-02 (1990).

6 Supra note 3; supra note 4 at Chapter 2.1602.5(a) (February 2016).

7 W.H., Docket No. 20-0395 (issued October 23, 2020); T.W., Docket No. 19-1821 (issued May 15, 2020).

8 R.K., Docket No. 19-1474 (issued March 3, 2020).
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demonstrate clear evidence of error.9 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of 

the evidence previously of record and whether the new evidence demonstrates clear error on the 

part of OWCP.11 In this regard, the Board will limit its focus to a review of how the newly 

submitted evidence bears on the prior evidence of record.

12

 The Board makes an independent 

determination as to whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.13

ANALYSIS

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. 

The most recent merit decision was OWCP’s March 29, 2018 decision, which found that 

the evidence of record had not established a diagnosed medical condition from a qualified 

physician connected to the accepted February 11, 2018 employment incident.14 As appellant’s 

request for reconsideration was not received by OWCP until May 13, 2020, more than one year 

after the issuance of its March 29, 2018 merit decision, it was untimely filed. Consequently, he 

must demonstrate clear evidence of error by OWCP.

As noted above, OWCP will consider an untimely request for reconsideration only if the 

request demonstrates clear evidence of error on the part of OWCP in its most recent merit 

decision.15 The application must establish, on its face, that such decision was erroneous.16 As 

appellant did not advance any argument or submit any medical evidence with his request, the Board 

finds that his reconsideration request failed to demonstrate clear evidence of error on the part of 

OWCP.17 The underlying issue in this case is whether the evidence of record establishes a medical 

diagnosis, from a qualified physician, connected to the accepted employment incident. This 

question is medical in nature and must be addressed by medical evidence.18 In order to 

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

was decided by OWCP.19 As appellant has not submitted relevant evidence, nor has he raised a 

 

9 U.C., supra note 2.

10 T.C., supra note 5.

11 Id.

12 R.K., supra note 8.

13 Id.

14 20 C.F.R. § 10.607(a).

15 Id.

16 Id. 

17 See Gary D. Hatcher, Docket No. 97-1334 (issued January 21, 1999).

18 See D.V., Docket No. 19-0588 (issued August 5, 2019).

19 See J.J., Docket 19-0977 (issued December 31, 2020); M.W., Docket No. 17-0892 (issued May 21, 2018).
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substantial question as to the correctness of OWCP’s decision, he has not demonstrated clear 

evidence of error.20

CONCLUSION

The Board finds that OWCP properly denied appellant’s May 13, 2020 request for 

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

ORDER

IT IS HEREBY ORDERED THAT the May 21, 2020 decision of the Office of Workers’

Compensation Programs are affirmed. 

Issued: March 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 See C.D., Docket No. 19-1462 (issued June 26, 2020).