United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.G., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Murfreesboro, TN, Employer

__________________________________________

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Docket No. 19-0038

Issued: June 18, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 5, 2018 appellant filed a timely appeal from a June 19, 2018 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision was 

a Board decision dated April 5, 2017, which became final after 30 days of issuance and is not 

subject to further review.1 As there was no merit decision issued by OWCP within 180 days of 

the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.3

 

1 20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued 

July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the June 19, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2 (c) (1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration as 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 decision are incorporated herein by reference. The relevant facts are as follows.

On May 26, 2016 appellant, then a 56-year-old health technician, filed an occupational 

disease claim (Form CA-2) alleging that on December 12, 2015 she first became aware of two 

bone spurs in her right foot. On May 20, 2016 she first realized this condition was caused by her 

federal employment duties over the past 33 years, which had required that she stand on her feet

while in the performance of duty. Appellant stopped work on May 19, 2016.

By decision dated July 28, 2016, OWCP denied appellant’s claim, finding the medical 

evidence of record was insufficient to establish a causal relationship between the accepted 

employment factors and the diagnosed foot conditions.

On September 28, 2016 appellant requested reconsideration.

By decision dated October 4, 2016, OWCP denied modification, finding that the evidence 

of record failed to establish that the diagnosed foot conditions had been caused or aggravated by 

the accepted employment factors.

Appellant filed an appeal with the Board on October 17, 2016. By decision dated April 5, 

2017,

5

the Board affirmed OWCP’s July 28 and October 4, 2016 decisions. The Board found that

appellant had not met her burden of proof to establish her claim as she had failed to submit 

rationalized medical evidence explaining how her diagnosed medical conditions had been caused 

or aggravated by the accepted employment factors.

On June 21, 2017 appellant requested reconsideration with OWCP asserting that she had 

in fact established her claim. In support of her claim, she resubmitted a July 7, 2016 report from

Dr. Jared C. Bramlett, a podiatrist. Dr. Bramlett provided a history of the treatment he provided 

to appellant commencing in May 2016, noted her work history and foot complaints, and 

summarized physical examination findings from prior reports and findings from reviewing two 

x-ray interpretations. Diagnoses included calcaneal spur syndrome, chronic plantar fasciitis, some 

subtalar joint arthritis, and bilateral degenerative joint disease, more prominent on the right.

Dr. Bramlett attributed the diagnosed conditions to biomechanical factors.

By decision dated July 10, 2017, OWCP denied appellant’s request for reconsideration 

finding that she had not raised an argument or submitted evidence sufficient to warrant reopening 

 

4 Docket No. 17-0067 (issued April 5, 2017).

5

Id.
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her case for further merit review under section 8128(a). It found that Dr. Bramlett’s July 7, 2016 

report had previously been considered by OWCP in its prior decisions.

In an October 20, 2017 report, Dr. Bramlett noted appellant’s work history, reviewed x-ray 

interpretations, and provided examination findings. He observed that her employment required 

long hours standing on tile surfaces for the past 30 years. Dr. Bramlett provided diagnoses of 

calcaneal spur syndrome, chronic plantar fasciitis, right calcaneal stress fracture, and degenerative 

joint disease which he attributed to biomechanical factors. In support of this opinion, he explained 

the excessive walking on tile surfaces and hard concrete, with a pronated foot and no arch support, 

had caused the diagnosed medical conditions.

On June 5, 2018 OWCP received appellant’s request for reconsideration dated 

March 25, 2018. Appellant asserted that her foot problems were due to her work, which required 

prolonged periods of walking and standing on concrete floors.

By decision dated June 19, 2018, OWCP denied appellant’s request for reconsideration as 

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.6 This discretionary authority, however, is subject to certain restrictions.7 OWCP’s 

regulations8establish a one-year time limitation for requesting reconsideration, which begins on 

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

accompanies any subsequent merit decision on the issues.9 Timeliness is determined by the 

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

System (iFECS).10 Imposition of this one-year filing limitation does not constitute an abuse of 

discretion.11

When an application for review is untimely, OWCP undertakes a limited review to 

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

was in error.12 OWCP 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 the 

 

6 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

7 20 C.F.R. § 10.607(a).

8

J.W., Docket No. 18-0703 (issued November 14, 2018); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 

247 (2005).

9

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

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

11 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

12 C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., Docket No. 10-0323 (issued September 2, 2010); 

M.E., 58 ECAB 309 (2007) Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); 

Jesus D. Sanchez, 41 ECAB 964 (1990).
4

claimant’s application for review demonstrates “clear evidence of error” on the part of OWCP.13 

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears 

on the prior evidence of record.14

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

issue which 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 show that the evidence could be construed 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 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 OWCP abused 

its discretion in denying merit review in the face of such evidence.21

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.

The most recent merit decision was a Board decision dated April 5, 2017, which became 

final after 30 days of issuance and is not subject to further review.22 As appellant’s request for 

reconsideration was not received by OWCP until June 5, 2018, more than one year after the 

 

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

10.607(b) provides: “OWCP will consider an untimely application for reconsideration only if the application 

demonstrates clear evidence of error on the part of [it] in its most recent merit decision. The application must establish, 

on its face, that such decision was erroneous.” 20 C.F.R. § 10.607(b).

14 See E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB 919 (1992).

15 See C.V., supra note 12; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

16 See E.P., supra note 14; Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

17 See C.V., supra note 12; Leon J. Modrowski, supra note 12; Jesus D. Sanchez supra note 12.

18 See E.P., supra note 14; Leona N. Travis, supra note 16.

19 See E.P., supra note 14; Nelson T. Thompson, supra note 14.

20 D.G., supra note 13; Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

21 See C.V., supra note 12; George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), 

petition for recon. denied, 41 ECAB 458 (1990).

22 Supra note 1.
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April 5, 2017 decision, it was untimely filed.23 Because appellant’s request was untimely, she 

must demonstrate clear evidence of error on the part of OWCP in having denied her occupational 

disease claim.

Preliminarily, the Board finds that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s October 4, 2016 decision because the Board 

considered that evidence in its April 5, 2017 merit decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.24

The underlying issue in this case was whether the accepted employment factors caused or 

aggravated appellant’s diagnosed foot conditions. That issue is medical in nature. Appellant’s 

general contentions do not demonstrate clear evidence of error as they do not raise a substantial 

question as to the correctness of OWCP’s decision which denied her claim. Her statement cannot 

qualify as medical evidence establishing a causal relationship between her diagnosed conditions 

and the employment factors as lay opinions have no probative value on medical issues.

25

 It is, 

therefore, insufficient to demonstrate clear evidence of error.26

OWCP received a report dated October 20, 2017 from Dr. Bramlett in which he noted 

appellant’s work history and repeated his opinion that the diagnosed conditions were due to

biomechanical factors. The Board notes that this report is largely duplicative of prior reports from

Dr. Bramlett, previously of record, as well as reviewed by the Board in its April 5, 2017 decision. 

He again attributed appellant’s diagnosed conditions to over 30 years of walking on tiled and 

concrete surfaces with her foot in a pronated position with no arch support. Moreover, as noted, 

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.27

As the evidence and argument submitted are of insufficient probative value to shift the 

weight in favor of appellant and raise a substantial question as to the correctness of OWCP’s last 

merit decision, the Board finds that appellant has failed to demonstrate clear evidence of error.

CONCLUSION

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

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

 

23 20 C.F.R. § 10.607(b); see F.N., Docket No. 18-1543 (issued March 6, 2019).

24 C.V., supra note 12; see J.L., Docket No. 17-1460 (issued December 21, 2018).

25 See Don A. Bergau, Docket No. 05-0944 (issued July 7, 2005).

26 See N.S., Docket No. 17-1420 (issued January 23, 2018).

27 N.S., id.; D.S., Docket No. 17-0407 (issued May 24, 2017).
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ORDER

IT IS HEREBY ORDERED THAT the June 19, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board