United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.V., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

OLIN E. TEAGUE VETERANS MEDICAL 

CENTER, Temple, TX, Employer

__________________________________________

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Docket No. 21-0167

Issued: January 13, 2022

Appearances: Case Submitted on the Record

Haley Maiocchi, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 13, 2020 appellant, through counsel, filed a timely appeal from a May 18, 

2020 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 17, 2019, to 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 over the merits of this case. 3

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

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May 18, 2020 decision, OWCP received additional evidence and appellant 

submitted additional evidence on appeal. However, the Board’s Rules of Procedureprovides: “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 May 6, 2020 request for 

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

FACTUAL HISTORY

On September 8, 2016 appellant, then a 45-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on September 1, 2016 she sustained injuries to her right 

side, upper left leg, buttock, and hip area when removing a wheelchair with oxygen from the rear 

of a van while in the performance of duty. She stopped work on October 17, 2016. On October 26, 

2016 OWCP accepted the claim for lumbar spine and left hip sprain. On April 23, 2018 it 

expanded acceptance of the claim to include lumbar radiculopathy. OWCP paid appellant wageloss compensation on the supplemental and periodic rolls through March 31, 2018.

On March 19, 2018 appellant returned to work in a modified limited-duty position.

Appellant filed claims for compensation (Form CA-7) for disability from work 

commencing June 14, 2018.

By decision dated January 17, 2019, OWCP denied appellant’s claim for compensation for 

disability commencing June 14, 2018. It explained that the medical evidence supported that 

appellant could perform a limited-duty job and that she had been performing a limited-duty job 

since March 9, 2018, which was in accordance with the restrictions provided by a second opinion 

physician and an impartial medical examiner.

On May 6, 2020 appellant filed a request for reconsideration.

OWCP received additional evidence including: numerous treatment notes from

Dr. Thomas E. Martens, an osteopath specializing in family medicine, dated November 20, 2018 

through December 10, 2019; letters of medical necessity and requests for upgrade to include 

additional medical conditions from Dr. Martens dated January 21 and May 5, 2020; duty status 

reports (Form CA-17) from Dr. Martens dated January 23 and February 12, 2019; referrals for 

physical rehabilitation from Dr. Martens dated January 24, March 7, and September 6, 2019 and

March 10, 2020; psychotherapy dated January 4 and February 15, 2019; x-rays of the right 

shoulder dated November 13, 2018; a July 18, 2019 x-ray of the lumbar, thoracic, and cervical 

areas of the spine; November 13, 2018, June 12, August 14, September 11, 2019, and January 22

and 29, 2020 diagnostic tests; an August 26, 2019 computerized tomography (CT) scan of the 

lumbar spine; magnetic resonance imaging (MRI) scans of the lumbar spine dated June 29, 2017 

and June 24, 2019; an August 26, 2019 operative report; physical therapy notes dated April 18, 

2018 to April 15, 2020; and treatment notes from Dr. Torrence J. Stepteau, a pain medicine 

specialist, dated July 30 and September 11, 2019, and January 22, 2020. OWCP also received 

progress reports from physician assistants in Dr. Martens’ and Dr. Stepteau’s offices dated 

December 5, 2018 to March 9, 2020.

By decision dated May 18, 2020, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error.
3

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 The one-year period for requesting reconsideration begins 

on the date of the original OWCP decision, but the right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues, including any merit decision by the 

Board.6 Timeliness is determined by the document receipt date, i.e., the “received date” in 

OWCP’s Integrated Federal Employees’ Compensation System (iFECS).7 Imposition of this oneyear filing limitation does not constitute an abuse of discretion.8

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

determine whether the request demonstrates clear evidence that OWCP’s most recent merit 

decision was in error.9 OWCP’s procedures provide that it 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 

claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of 

OWCP.10 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.11

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

issue, which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error. Evidence which 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 merely to 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 

4

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued 

February7, 2019); Y.S., Docket No. 08-0440 (issued March16, 2009).

5

20 C.F.R. § 10.607(a).

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

7

Id.

8 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

Faidley, Jr., 41 ECAB 104 (1989).

9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499 (1990).

10 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b); supranote 6 at Chapter 2.1602.5 (February 2016).

11 J.M., Docket No. 19-1842 (issued April23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

12 S.C.,Docket No. 18-0126 (issued May 14, 2016); supranote 6 at Chapter 2.1602.5(a) (February 2016).
4

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. The claimant must present evidence,which on its face demonstrates 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.14 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.15

ANALYSIS

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

reconsideration was untimely filed. 

The last merit decision was issued on January 17, 2019. As her request for reconsideration 

was not received by OWCP until May 6, 2020, more than one year after the January 17, 2019 merit 

decision, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the 

claim.16

The Board further finds that OWCP summarily denied appellant’s request for 

reconsideration without complying with the review requirement of FECA and its implementing 

regulations.17 

As noted, section 8124(a) of FECA provides that OWCP shall determine and make a 

finding of fact and make an award for or against payment of compensation.18 Its regulations at 20 

C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and facts 

and a statement of reasons.19 As well, OWCP’s procedures provide that the reasoning behind 

13 C.M., Docket No. 19-1211 (issued August 5, 2020).

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

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

16 20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April14, 2021); R.T., Docket No. 19-0604 (issued 

September 13, 2019); see Debra McDavid, 57 ECAB 149(2005).

17 See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case, 

C.G., Docket No. 20-0051 (issued June29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April30, 

2020); see also 20 C.F.R. § 10.607(b).

18 5 U.S.C. § 8124(a).

19 20 C.F.R. § 10.126.
5

OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the 

claim and the kind of evidence, which would overcome it.20

In the May 18, 2020 decision, OWCP failed to analyze the evidence submitted on 

reconsideration as to whether it was sufficient to demonstrate clear evidence of error. The Board,

thus, finds that OWCP failed to properly explain the findings with respect to the issue presented 

so that appellant could understand the basis for the decision, i.e., whether she had demonstrated 

clear evidence that OWCP’s last merit decision was incorrect.

The Board will, therefore, set aside OWCP’s May 18, 2020 decision in part and remand 

the case for findings of fact and a statement of reasons regarding clear evidence of error, to be 

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

CONCLUSION

The Board finds that appellant’s request for reconsideration was untimely filed. The Board 

further finds that the case is not in posture for decision regarding whether he has demonstrated 

clear evidence of error.

20 Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all 

decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the 

disallowance).
6

ORDER

IT IS HEREBY ORDERED THAT the May 18, 2020 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: January 13, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board