United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.A., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Miami, FL, Employer

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Docket No. 20-1595

Issued: April 21, 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 September 9, 2020 appellant filed a timely appeal from an April 15, 2020 nonmerit 

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

elapsed from OWCP’s last merit decision, dated March 20, 2019, 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 April 15, 2020 decision, appellant submitted additional evidence to OWCP. 

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 21, 2018 appellant, then a 56-year-old airway transportation systems specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on that date he bumped his head on his 

sun visor when accidently damaging the passenger side of his work vehicle while in the 

performance of duty. In an accompanying statement, he explained that the motor vehicle collision 

occurred when he was reaching for a sports drink and accidently turned to the right, damaging the 

passenger side of his work vehicle. Appellant stopped work in the morning on August 21, 2018 

and returned to work in the afternoon of the same date. 

Appellant submitted emergency department discharge notes dated August 21, 2018. 

In a development letter dated August 28, 2018, 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. OWCP afforded 

appellant 30 days to submit the necessary evidence.

OWCP subsequently received a September 23, 2018 note from Dr. Serena Sara, a 

chiropractor, who noted that appellant was involved in a motor vehicle accident on 

August 21, 2018. Dr. Sara noted that x-rays were taken of his cervical and lumbar spine and 

showed subluxation at the occiput, C1 levels, C7, C5, L3, L1, L2, and L5 levels. She diagnosed 

segmental and somatic dysfunction of cervical region, neck strain, segmental and somatic 

dysfunction of thoracic region, thoracic strain, segmental and somatic dysfunction of lumbar 

region, lumbar strain, acute post-traumatic headache, right shoulder pain, right knee pain, left knee 

pain, and segmental and somatic dysfunction of pelvic region. Dr. Sara opined that appellant’s 

conditions and treatment were causally related to the claimed employment incident.

By decision dated October 1, 2018, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish a medical diagnosis causally related to the 

accepted August 21, 2018 employment incident. It concluded, therefore, that the requirements had 

not been met to establish an injury as defined by FECA. 

On October 16, 2018 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review.

In support of his request, appellant submitted a September 27, 2018 note from Dr. Rafael 

Ubeda, a Board-certified family practitioner, who noted that appellant had suffered an emergency 

medical condition as a result of the August 21, 2018 employment incident.

By decision dated March 20, 2019, an OWCP hearing representative affirmed the 

October 1, 2018 decision.
3

By letter dated March 18, 2020, received by OWCP on March 24, 2020, appellant 

requested reconsideration.

Appellant submitted a magnetic resonance imaging (MRI) scan report of his cervical spine, 

dated August 15, 2019, which revealed spondylitic and congenital multilevel mild cord 

compression and C3 vertebral lesion. An MRI scan report of appellant’s right knee, dated 

August 19, 2019, revealed stable meniscal chondrocalcinosis, osteoarthritis changes, high-grade 

medial joint compartment chondromalacia, small suprapatellar effusion, significant degenerative 

changes of the anterior cruciate ligament (ACL), and chronic posterior cruciate ligament (PCL) 

sprain. An MRI scan report of his right shoulder, dated November 6, 2019, revealed focal partial 

thickness tear at the proximal long head of the biceps tendon, significant tendinosis of the distal 

supraspinatus tendon extending into the infraspinatus tendon, and degenerative changes of the 

superior labrum. An MRI scan report of appellant’s lumbosacral spine, dated November 19, 2019, 

revealed mild-to-moderate degenerative changes in the L2 inferior endplate and mild narrowing 

of the L5-S1 intervertebral disc space.

In a letter dated February 13, 2020, the Department of Veterans Affairs indicated that 

appellant was separated from military service under honorable conditions and was entitled to 

compensation for service-connected disability rated at 30 percent or more.3

By decision dated April 15, 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.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 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the “received date” in OWCP’s Integrated Federal 

Employees’ Compensation System (iFECS).6 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.7

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 

 

3 Appellant also submitted a partially-legible certificate of release or discharge from active duty.

4 5 U.S.C. § 8128(a); C.S., Docket No. 20-1075 (issued December 31, 2020); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

5 20 C.F.R. § 10.607(a).

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

7

J.J., Docket No. 19-0977 (issued December 31, 2020); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).
4

decision was in error.8 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.9 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.10

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

issue which was decided by OWCP.11 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 

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.12

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

difficult standard.13 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 insufficient to demonstrate 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 denied appellant’s request for reconsideration, 

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

 

8 See 20 C.F.R. § 10.607(b); W.J., Docket No. 20-0489 (issued December 21, 2020); M.H., Docket No. 18-0623 

(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

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

10 J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018); 

Robert G. Burns, 57 ECAB 657 (2006).

11 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (September 2020).

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

13 Supra note 6 at Chapter 2.1602.4(b) (September 2020).

14 J.J., supra note 7.

15 Id.
5

OWCP properly determined that appellant failed to file a timely request for 

reconsideration. As noted above, a request for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.16 As appellant’s request for 

reconsideration was not received into iFECS until March 24, 2020, more than one year after the 

issuance of OWCP’s March 20, 2019 merit decision, it was untimely filed. Consequently, he must 

demonstrate clear evidence of error on the part of OWCP.

17

The Board further finds that appellant has failed to demonstrate clear evidence of error on 

the part of OWCP in its last merit decision. OWCP denied appellant’s traumatic injury claim, 

finding that the medical evidence of record was insufficient to establish causal relationship 

between appellant’s cervical and lumbar spine conditions and the accepted August 21, 2018 

employment incident.

In support of his untimely request for reconsideration, appellant submitted series of MRI 

scan reports of his cervical spine, right knee, right shoulder, and lumbosacral spine, dated 

August 15 through November 19, 2019. He also submitted a February 13, 2020 letter from the 

Department of Veterans Affairs and a DD Form 214 related to his honorable discharge from the 

Armed Forces. This evidence did not raise a substantial question as to the correctness of OWCP’s 

denial of appellant’s claim as it did not contain a rationalized medical opinion explaining how 

appellant’s diagnosed conditions were causally related to the accepted August 21, 2018 

employment incident. Evidence that is not pertinent to the issue on which the claim was denied is 

insufficient to demonstrate clear evidence of error.

18

The Board has held that the term clear evidence of error is intended to represent a difficult 

standard. None of the evidence submitted demonstrates on its face that OWCP committed an error 

in denying appellant’s traumatic injury claim in its March 20, 2019 merit decision. The Board 

therefore finds that the evidence is insufficient to demonstrate clear evidence of error.19

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.

 

16 Supra note 5.

17 20 C.F.R. § 10.607(b); J.J., supra note 7.

18 D.B., Docket No. 20-0466 (issued December 17, 2020); S.E., Docket No. 16-1258 (issued December 5, 2016); 

B.F., Docket No. 11-1181 (issued December 8, 2011).

19 D.B., id.
6

ORDER

IT IS HEREBY ORDERED THAT the April 15, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 21, 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