United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.E., Appellant

and

DEPARTMENT OF COMMERCE, 

U.S. CENSUS BUREAU, Asheville, NC, 

Employer

__________________________________________

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Docket No. 18-1497

Issued: March 1, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 31, 2018 appellant filed a timely appeal from a February 1, 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 January 5, 2017, 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

On June 6, 2016 appellant, then a 61-year-old field representative, filed a traumatic injury 

claim (Form CA-1) alleging that on June 1, 2016 she sustained right knee torn medial meniscus, 

torn lateral meniscus, partial tear of anterior cruciate ligament attachment, chondrocalcinosis, and 

severe degenerative arthritis when she twisted her right knee ascending and descending stairs while 

in the performance of duty. On the reverse side of the claim form, appellant’s supervisor noted 

that appellant stopped working on June 2, 2016. 

In a report dated June 2, 2016, Dr. David Mackel, a Board-certified orthopedic surgeon, 

noted that he obtained x-rays of appellant’s knees which revealed a severe degenerative disease in 

both knees. He indicated that he suspected that appellant had a meniscus tear along with the 

preexisting, severe degenerative arthritis. Dr. Mackel noted that the disease was asymptomatic 

prior to the employment injury.

In a magnetic resonance imaging (MRI) scan report dated June 3, 2016, Dr. Andrew 

Deibler, Board-certified in diagnostic radiology, diagnosed right knee displaced flap tear posterior 

horn medial meniscus, patellofemoral predominant osteoarthritis, a large Baker’s cyst containing 

hemorrhage, degenerative changes of the lateral meniscus without definite tear, parapatellar 

synovitis, large joint effusion, and thickened suprapatellar plica. 

In a work excuse note dated June 8, 2016, Dr. Mackel indicated that appellant would be 

unable to return to work from that date until six weeks after her pending knee surgery. 

In a development letter dated June 13, 2016, OWCP informed appellant that the evidence 

submitted was insufficient to establish her claim. It requested that she submit a narrative medical 

report by her attending physician which included the history and date of injury, and the physician’s 

opinion supported by a medical explanation as to how the reported employment incident caused 

or aggravated a medical condition. OWCP afforded appellant 30 days to submit the requested 

evidence. 

In an operative/procedure note dated June 14, 2016, Dr. Mackel related that he had 

performed appellant’s right knee arthroscopic surgery. He noted postoperative diagnoses of torn 

medial meniscus, torn lateral meniscus, partial tear of anterior cruciate ligament attachment, severe 

degenerative arthritis, and chondrocalcinosis of the right knee.

In a work excuse note dated June 16, 2016, Dr. Mackel indicated that appellant would be 

unable to return to work until September 14, 2016.

By decision dated July 18, 2016, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish that the claimed medical condition was causally

related to the accepted employment incident. It noted that, although her physician had diagnosed 

knee conditions, he had not provided a rationalized medical opinion regarding the cause of her 

condition and how it related to the accepted employment incident, rather than the degenerative 

condition that preexisted the date of the injury.

On August 15, 2016 appellant requested a hearing before an OWCP hearing representative.
3

By decision dated January 5, 2017, an OWCP hearing representative conducted a review 

of the written record and affirmed the July 18, 2016 decision.

In a note dated December 26, 2017, Dr. J. Robert Anderson, Board-certified in family 

practice, indicated that appellant had been under his care since 1999. He noted that appellant had 

significant knee problems following an injury sustained while working on June 1, 2016. 

Dr. Anderson related that appellant had a misstep on a flight of stairs while working, which caused 

a significant injury to her right knee.

In an affidavit dated and postmarked January 3, 2018, received by OWCP on January 9, 

2018, appellant requested reconsideration.

By decision dated February 1, 2018, OWCP denied appellant’s reconsideration request,

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.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 review is sought.3 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).4 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.5

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 

review to determine whether it demonstrates clear evidence of error.6 If an application 

demonstrates clear evidence of error, it will reopen the case for merit review.7

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

issue which was decided by OWCP.8 The evidence must be positive, precise, and explicit and 

 

2 5 U.S.C. § 8128(a); J.W., Docket No. 18-0703 (issued November 14, 2018); 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

J.W., supra note 2; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7 G.G., Docket No. 18-1074 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supra note 4 at 

Chapter 2.1602.5 (February 2016).

8

J.D., Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).
4

must manifest on its face that OWCP committed an error.9 Evidence which does not raise a 

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

clear evidence of error.10 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.11 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.12 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.13

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

difficult standard.14 The claimant must present evidence which on its face shows that OWCP made 

an error. 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.15 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.16

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 regulations17 and procedures18 establish a one-year time limit 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.19 

The most recent merit decision was OWCP’s January 5, 2017 decision. Timeliness is determined 

by the document receipt date (i.e., the “received date” in OWCP’s iFECS).20 Appellant had one 

 

9

Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

10 J.D., supra note 8; Jimmy L. Day, 48 ECAB 652 (1997).

11 Id.

12 Id.

13 J.W., supra note 2; Robert G. Burns, 57 ECAB 657 (2006).

14 Supra note 7.

15 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (February 2016).

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

17 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

18 Supra note 4 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

19 J.W., supra note 2; Robert F. Stone, 57 ECAB 292 (2005).

20 Supra note 4 at Chapter 2.1602.4(b) (February 2016).
5

year from the date of OWCP’s January 5, 2017 decision to timely request reconsideration. One 

year from January 5, 2017 fell on Friday, January 5, 2018. As OWCP did not receive appellant’s 

reconsideration request until January 9, 2018, more than one year after the January 5, 2017 merit 

decision, it was untimely filed. Consequently, appellant must demonstrate clear evidence of error 

by OWCP in the denial of her claim.21

Appellant submitted a narrative doctor’s note dated December 26, 2017 and her own 

affidavit dated January 3, 2018. The underlying issue in this case is medical in nature, namely 

whether appellant had established causal relationship between her diagnosed knee condition and 

the accepted June 1, 2016 employment incident through the submission of rationalized medical 

opinion evidence. In the narrative doctor’s note, Dr. Anderson reiterated appellant’s diagnoses 

and noted that she had a misstep on a flight of stairs which caused her right knee condition. His 

report did not provide a rationalized medical opinion establishing causal relationship between the 

diagnosed conditions and the accepted June 1, 2016 incident. Clear evidence of error is intended 

to represent a difficult standard. Evidence, such as a detailed, well-rationalized medical report 

which, if submitted before the merit denial decision was issued, would have created a conflict in 

medical opinion requiring further development, is insufficient to demonstrate clear evidence of 

error.22

Similarly, appellant’s arguments in her January 3, 2018 affidavit, which noted her

interpretation of the requirement for medical evidence, her history of medical treatment, the details 

regarding the alleged injury incident, her recovery, and her fitness goal, lack probative value. Her 

honest belief that her work activities on June 1, 2016 caused her medical condition is not in 

question, but that belief, however sincerely held, does not shift the weight of the evidence in her

favor and raise a substantial question as to the correctness of OWCP’s decision.23

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, appellant has failed to demonstrate clear evidence of error.24

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.

 

21 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

22 See supra note 14.

23 J.W., supra note 2; Robert G. Burns, 57 ECAB 657 (2006).

24 See W.A., Docket No. 18-0297 (issued July 18, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 1, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board