United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Laredo, TX, Employer

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Docket No. 22-0556

Issued: October 25, 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 March 4, 2022 appellant filed a timely appeal from a January 27, 2022 nonmerit

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

elapsed from the last merit decision, dated December 17, 2020, 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 October 28, 2020 appellant, then a 29-year-old criminal investigator, filed an 

occupational disease claim (Form CA-2) alleging that he was exposed to blood when processing a 

crime scene in an officer-involved shooting. He noted that he first became aware of his condition 

and realized its relation to his federal employment on October 23, 2020. Appellant did not 

immediately stop work. 

On October 24, 2020 Dr. Eutimio Calixto-Lopez, Board-certified in emergency medicine, 

examined appellant in the emergency room for occupational exposure to a risk factor. Appellant

received discharge instructions for work site wellness. 

In a development letter dated November 10, 2020, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed and 

provided a questionnaire for his completion. By separate development letter also dated 

November 10, 2020, OWCP requested additional information from the employing establishment. 

It afforded both parties 30 days to respond.

OWCP subsequently received a response from the employing establishment, wherein it

concurred with appellant’s statements relative to his claim. It noted that he provided emergency 

medical care to multiple subjects who sustained gunshot wounds and was exposed to blood from 

multiple persons for approximately six minutes before the blood could be washed off. The 

employing establishment further noted that, due to the emergent nature of the situation, appellant 

was not able to wear a mask and gloves. It related that he was a criminal investigator and a member 

of the Special Response Team, which was tasked to disrupt and dismantle criminal organizations. 

Appellant was required to be in physical shape and carry and qualify with a firearm. The 

employing establishment also provided a job description for a criminal investigator (special agent).

OWCP received additional evidence. In emergency room records from Dr. Calixto-Lopez 

dated October 24, 2020, appellant presented with blood exposure on the bilateral upper 

extremities. He noted that the area was irrigated and laboratory testing was conducted. 

Dr. Calixto-Lopez diagnosed occupational exposure to risk factor and noted that appellant was 

discharged in stable condition. Appellant received discharge instructions for work site wellness.

By decision dated December 17, 2020, OWCP denied appellant’s occupational disease 

claim, finding that he had not submitted medical evidence containing a medical diagnosis in 

connection with his accepted employment exposure. It concluded, therefore, that the requirements 

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

On January 21, 2022 appellant requested reconsideration. He submitted a hospital billing

statement from Laredo Medical Center for services provided on October 24, 2020.

By decision dated January 27, 2022, OWCP denied appellant’s reconsideration request, 

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.2 This discretionary authority, however, is subject to certain restrictions. 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 (i.e., the “received date”

in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).4 Imposition of this 

one-year filing limitation does not constitute an abuse of discretion.5

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.6 Its 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.7 In this 

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

prior evidence of record.8

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

issue which was decided by OWCP.9 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 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 

2

5 U.S.C. § 8128(a). See also L.W., Docket No. 18-1475 (issued February 7, 2019); 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 2.1602.4b (September 2020).

5 G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

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

6

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

499, 501-02 (1990).

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

also id. at § 10.607(b);supra note 4 at Chapter 2.1602.5 (September 2020).

8

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).

9

S.C., Docket No. 18-0126 (issued May 14, 2016);supranote 4 at Chapter 2.1602.5a (September 2020).
4

the correctness of OWCP’s decision. The Board makes an independent determination as to 

whether a claimant has demonstrated clear evidence of error on the part of OWCP. 10

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.

OWCP’s regulations11 and procedures12 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.13 

The most recent merit decision was OWCP’s December 17, 2020 decision. As OWCP received 

his request for reconsideration on January 21, 2022, more than one year after the December 17, 

2020 merit decision, the Board finds that it was untimely filed. Consequently, he must demonstrate 

clear evidence of error on the part of OWCP.

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

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

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial 

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

evidence of error.14 OWCP denied appellant’s occupational disease claim, finding that he failed 

to provide a medical diagnosis in connection with the accepted employment exposure. On 

reconsideration, appellant submitted a hospital billing statement from Laredo Medical Center for 

services provided on October 24, 2020. This evidence, however, does not raise a substantial 

question concerning the correctness of OWCP’s decision as it is not medical evidence and does 

not note a diagnosed medical condition.

15

 The Board has held that the term clear evidence of error 

10 U.C., Docket No. 19-1753 (issued June 10, 2020).

11 20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB 

247 (2005).

12 Supra note 4 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

14 See 20 C.F.R. § 10.607(b); G.G.,supra note 5.

15 See P.T., Docket No. 18-0494 (issued July 9, 2018).
5

is intended to represent a difficult standard.16 As such, the Board finds that this evidence is 

insufficient to demonstrate clear evidence of error in OWCP’s December 17, 2020 decision.17

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.

ORDER

IT IS HEREBY ORDERED THAT the January 27, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 25, 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

16 M.P., Docket No. 19-0200 (issued June 14, 2019).

17 A completed authorization for examination and/or treatment (Form CA-16)may constitute a contract for payment 

of medical expenses to a medical facility or physician, when properly executed. The form creates a contractual 

obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless 

of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.D., Docket No. 22-0286 (issued June 15, 2022); V.S., 

Docket No. 20-1034 (issued November 25, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); TracyP. 

Spillane, 54 ECAB 608 (2003). Further, OWCP’s procedures provide: “OWCP may approve payment for medical 

expenses incurred even if Form CA-16 has not been issued and the claim is subsequently denied. Payment in situations 

meeting these criteria must be determined on a case-by-case basis.” Federal (FECA) Procedure Manual, Part 3 --

Medical, Authorizing Examination and Treatment, Chapter 3.300.3a(3) (February 2012).