United States Department of Labor

Employees’ Compensation Appeals Board

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L.F., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Jacksonville, FL, 

Employer

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Docket No. 20-1431

Issued: May 3, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 28, 2020 appellant filed a timely appeal from a January 31, 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 December 6, 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.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 31, 2020 decision, OWCP received additional evidence on appeal. 

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, 

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

FACTUAL HISTORY

On August 18, 2017 appellant, then a 57-year-old electronic duplicating system technician, 

filed a traumatic injury claim (Form CA-1) alleging that on June 8, 2017 she sustained a gash on 

her forehead when a heavy metal door fell down on her head while in the performance of duty. 

On the reverse side of the claim form, her supervisor acknowledged that she was in the 

performance of duty when her injury occurred. Appellant did not stop work. 

In medical referral forms dated June 8 and 9, 2017, Celia Macapagal, a nurse practitioner, 

noted that appellant bumped her head on a door and diagnosed a head contusion. She advised that 

appellant could return to full-duty work. 

In an August 17, 2017 letter, T.M., appellant’s supervisor, controverted appellant’s claim,

asserting that, after the claimed June 8, 2017 employment incident, she returned to work and 

completed her full shift. The next day appellant had a follow-up appointment and was released to 

full-duty work. T.M. claimed that he was not aware of any issues she was having until he received 

an email on August 15, 2017 stating that she was experiencing headaches. He also noted that 

appellant did not miss any time off work. 

In a development letter dated August 23, 2017, OWCP informed appellant of the factual 

and medical deficiencies of her claim. It advised her of the type of factual and medical evidence 

necessary to establish her claim, provided her with a questionnaire for completion, and afforded 

her 30 days to submit the necessary evidence. 

Appellant submitted a photograph of the door that struck her head and noted that it was not 

secured properly when it fell. 

By decision dated September 29, 2017, OWCP denied appellant’s traumatic injury claim,

finding that she had not submitted any medical evidence containing a firm medical diagnosis from 

a qualified physician in connection with the accepted June 8, 2017 employment incident. It 

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA. 

On September 27, 2018 appellant requested reconsideration of OWCP’s September 29, 

2017 decision. 

In an October 9, 2017 diagnostic report, Dr. Uzuner Ovsev, Board-certified in 

neuroradiology, performed a computerized tomography scan that returned unremarkable. 

February 7, 2018 discharge instructions noted that appellant was treated by Dr. Ronald 

Koury, Board-certified in emergency medicine concerning a diagnosis of high blood pressure. 
3

In medical reports dated June 20 and July 20, 2018, Dr. Valdimir Markovic, Boardcertified in family medicine, evaluated appellant for headaches. He made note of the June 8, 2017 

employment incident in which a metal cabinet door fell on her forehead, as well as subsequent 

intermittent throbbing headaches. Appellant informed Dr. Markovic that she underwent a 

magnetic resonance imaging (MRI) scan, which was interpreted as normal. On evaluation,

Dr. Markovic diagnosed a chronic post-traumatic headache and postconcussion syndrome. 

On September 11, 2018 Dr. Robert Lanoue, a Board-certified neurologist, evaluated 

appellant for headaches she was experiencing. He noted that her headaches began in 2016 and 

also recounted the June 8, 2017 employment incident where a heavy cabinet door fell on her head. 

Dr. Lanoue further noted that, since the employment incident, appellant reported experiencing 

headaches frequently. 

Dr. Markovic, in a September 20, 2018 medical report, noted his continued treatment of 

appellant for headaches. He diagnosed a chronic post-traumatic headache and prescribed 

medication. 

By decision dated December 6, 2018, OWCP modified its September 29, 2017 decision to

find that appellant had established the medical component of fact of injury. The claim remained 

denied, however, because she had not submitted a rationalized opinion from her treating physician 

explaining how her diagnosed medical condition was causally related to the accepted June 8, 2017 

employment incident. 

On January 17, 2020 appellant requested reconsideration of OWCP’s December 6, 2018 

decision. In an undated statement, she recounted her history of medical treatment and explained 

that she was still experiencing throbbing pain on the left side of her forehead. 

OWCP received additional medical evidence. In an August 29, 2017 medical note,

Ms. Macapagal indicated that appellant was experiencing headaches multiple times a day and 

noted the June 8, 2017 employment incident in which a metal cabinet door fell on her head. 

Dr. Markovic, in a report dated July 6, 2018, outlined a plan of care for a diagnosis of depression.

Appellant also resubmitted medical evidence previously considered by OWCP. 

By decision dated January 31, 2020, OWCP denied appellant’s request for reconsideration,

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.3 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.4 The one-year period for requesting reconsideration begins 

3

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).

4

20 C.F.R. § 10.607(a).
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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.5 Timeliness is determined by the document receipt date (i.e., the “received date” in 

OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).6 The Board has found 

that the imposition of the one-year limitation does not constitute an abuse of the discretionary 

authority granted OWCP under section 8128(a) of FECA.7

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 it demonstrates clear evidence of error.8 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 the claimant’s request for 

reconsideration demonstrates clear evidence of error on the part of OWCP.9

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.10 The Board 

notes that clear evidence of error is intended to represent a difficult standard. 11 Evidence that does 

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

demonstrate clear evidence of error.12 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.13 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.14 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. 15 The Board makes an independent 

5 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.4a (September 2020).

6

Id. at Chapter 2.1602.4(b) (February 2016).

7

See R.L., Docket No. 18-0496 (issued January 9, 2019).

8

See 20 C.F.R. § 10.607(b);G.G., Docket No. 18-1074 (issued January 7, 2019).

9

Id. at § 10.607(b); supranote 5 at Chapter 2.1602.5(a) (February 2016).

10 G.G., supra note 8.

11 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 7.

12 E.B., Docket No .18-1091 (issued December 28, 2018).

13 J.W., Docket No. 18-0703 (issued November 14, 2018).

14 P.L., Docket No. 18-0813 (issued November 20, 2018).

15 D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).
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determination as to 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. The last merit decision of record was OWCP’s December 6, 

2018 decision. As appellant’s request for reconsideration was received by OWCP on January 17, 

2020, more than one year after the December 6, 2018 merit decision, it was untimely filed. 

Consequently, she must demonstrate clear evidence of error by OWCP in denying her claim.17

The Board further finds that appellant has not demonstrated clear evidence of error on the 

part of OWCP in its December 6, 2018 decision. The underlying issue is whether appellant met 

her burden of proof to establish a head condition causally related to the accepted June 8, 2017 

employment incident. The Board finds that the argument and evidence she submitted in support 

of her request for reconsideration did not raise a substantial question as to the correctness of the 

denial of her claim.18

In support of her untimely reconsideration request, appellant submitted a September 6, 

2017 full-duty release by Ms. Macapagal and a portion of a July 6, 2018 report by Dr. Markovic, 

who noted a diagnosis of depression. As noted, clear evidence of error is intended to represent a 

difficult standard.19 To demonstrate clear evidence of error, a claimant must submit evidence 

relevant to the issue which was decided by OWCP.20 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. Neither the September 6, 2017 release, nor the July 6, 2018 

report contain an opinion on the cause of appellant’s head condition and, therefore, they do not on 

their face show that OWCP erred when it denied her claim for a traumatic injury to her head.21 

Moreover, as nurse practitioners are not considered physicians under FECA, 22 their medical 

16 W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

17 Supra note 5. See also Debra McDavid, 57 ECAB 149 (2005).

18 See P.T., Docket No. 18-0494 (issued July 9, 2018).

19 Supra note 11.

20 See M.W.,Docket No. 21-0925 (issued November 10, 2021).

21 Id.

22 Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 

5 U.S.C. § 8101(2); 20 C.F.R. §10.5(t). See supra note 5 at Chapter 2.805.3a(1) (January 2013); M.J., Docket No. 

19-1287 (issued January 13, 2020); P.H., Docket No. 19-0119 (issued July 5, 2019); T.K., Docket No. 19-0055 (issued 

May 2, 2019); DavidP. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants, 

and physical therapists are not competent to render a medical opinion under FECA). See also W.Z., Docket No. 

20-0191 (issued July 31, 2020) (a nurse practitioner is not considered a physician under FECA).
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findings and opinions are of no probative value and are insufficient to shift the weight of the 

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

Appellant also resubmitted medical evidence previously considered by OWCP. The Board 

notes, however, that duplicative and cumulative medical evidence does not raise a substantial 

question as to the correctness of OWCP’s December 6, 2018 decision.24

As the evidence submitted on reconsideration is insufficient to shift the weight of the 

evidence in appellant’s favor or raise a substantial question that OWCP erred in the issuance of its 

December 6, 2018 decision, the Board finds that OWCP properly denied her reconsideration 

request, finding that 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.

23 T.T., Docket No. 19-1624 (issued October 28, 2020).

24 Supranote 12. See also C.C., Docket No. 21-0896 (issued December 2, 2021); S.W., Docket No. 18-0126 (issued 

May 14, 2019); G.B., Docket No. 18-1629 (issued April15, 2019); Robert G. Burns, 57 ECAB 657(2006).
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ORDER

IT IS HEREBY ORDERED THAT the January 31, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 3, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board