United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.N., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NORTH TEXAS HEALTH CARE SYSTEM, 

Dallas, TX, Employer

__________________________________________

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Docket No. 22-1150

Issued: May 8, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 31, 2022 appellant filed a timely appeal from a January 25, 2022 nonmerit decision 

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

from the last merit decision, dated July 29, 2016, 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 to review the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim, 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

This case has previously been before the Board.2 The facts and circumstances as set forth

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On January 21, 2014appellant, then a 52-year-old vocational nurse, filed a traumatic injury 

claim (Form CA-1) alleging that, while walking to her car immediately after leaving work at 5:00

p.m. that day, she tripped on an uneven sidewalk, fell, and struck both knees. On the reverse side 

of the form, the employing establishment noted that her regular work shift varied between the 

hours of 7:30 a.m. and 8:00 p.m. 

In a development letter dated February 5, 2014, OWCP informed appellant of the

deficiencies of her claim. It advised her of the type of additional evidence needed and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to respond. Appellant did 

not submit additional evidence as requested.

By decision dated March 18, 2014, OWCP denied appellant’s traumatic injury claim, 

finding that she had not established fact of injury as she submitted no medical evidence 

establishing an injury in connection to the January 21, 2014 employment incident. 

On June 9, 2014 appellant requested reconsideration. In support of her request, she 

submitted reports dated May 6, 2014 through January 7, 2015 by Dr. Ed Wolski, a Board-certified 

family practitioner, who opined that the January 21, 2014 employment incident caused a right 

ankle sprain. 

In a January 28, 2015 email, the employing establishment noted that on January 21, 2014 

appellant’s scheduled work shift was 7:30 a.m. to 4:00 p.m. 

By decision dated January 29, 2015, OWCP modified the March 18, 2014 decision, to find 

that the medical evidence of record established a medical diagnosis; however, the claim remained 

denied as appellant was not in the performance of duty at the time of the claimed January 21, 2014 

employment incident. It noted that her work shift ended at 4:00 p.m., and she fell at 5:00 p.m., 

beyond the standard 30-minute allowance for coming and going from work.

On March 6, 2015 appellant, through her then-representative, requested reconsideration. 

On March 19, 2015 OWCP received appellant’s January 21, 2014 statement in which she 

contended that employing establishment nurses routinely stayed after the end of their shift to 

complete documentation or finish job duties. Appellant noted that the employing establishment 

did not require employees to clock in or out. 

2 Docket No. 17-0737 (issued September 18, 2017).
3

On March 19, 2015 OWCP received statements from two of appellant’s coworkers dated 

January 21, 2014, contending that employing establishment nurses often stayed after the end of 

their scheduled tour to complete charting and other work tasks. 

OWCP also received copies of medical reports previously of record, physical therapy 

notes, an imaging study, and reports signed by a physician assistant. 

By decision dated April 20, 2015, OWCP denied modification of its January 29, 2015 

decision. It found that the additional evidence submitted did not establish that appellant had been 

in the performance of duty at the time of the January 21, 2014, employment incident. 

OWCP received additional reports by Dr. Wolski, dated April 20 and May 22, 2015.

On July 6, 2015 appellant again requested reconsideration. Commencing August 4, 2015, 

she submitted reports by Dr. Wolski dated from June 30, 2015 through January 28, 2016 and 

diagnostic study reports. 

By decision dated February 26, 2016, OWCP denied modification.

OWCP received additional reports from Dr. Wolski dated February 29 and April 11, 2016.

On May 2, 2016 appellant requested reconsideration of OWCP’s February 26, 2016 

decision. She submitted reports from Dr. Wolski dated May 11 and June 20, 2016. 

By decision dated July 29, 2016, OWCP denied modification.

On August 3, 2016 OWCP received a June 20, 2016 report by Dr. Wolski. 

On August 8, 2016 appellant again requested reconsideration. Commencing on August 15, 

2016 she submitted reports by Dr. Wolski dated from July 22 through November 28, 2016. 

By decision dated January 4, 2017, OWCP denied appellant’s request for reconsideration

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). Appellant then appealed to the Board.

During the pendency of the prior appeal, appellant submitted reports by Dr. Michael V. 

Tran, a podiatrist, dated from February 6, 2015 through December 19, 2016 and reports by

Dr. Wolski dated from July 22, 2016 through January 26, 2017.

By decision issued September 18, 2017,3the Board affirmed OWCP’s January 4, 2017 

denial of reconsideration of the merits of appellant’s claim. The Board found that the evidence 

submitted on reconsideration was irrelevant to the underlying issue of whether she was in the 

performance of duty when she fell at 5:00 p.m. on January 21, 2014.

On April 3, 2018 OWCP received reports by Dr. Wolski dated March 14, 2018. 

3

Id.
4

On July 31, 2018 appellant requested reconsideration. In support of her request, she 

submitted a November 7, 2018 statement by her supervisor, contending that emergencies and 

staffing issues often resulted in employees working beyond the end of their shift. 

By decision dated July 9, 2019, OWCP denied appellant’s reconsideration request, finding 

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

On February 10, 2020 appellant again requested reconsideration. 

By decision dated March 23, 2020, OWCP denied appellant’s reconsideration request, 

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

In an April 21, 2020 statement, appellant contended that OWCP had not received her 

August 2, 2019 request for reconsideration although she had sent it by certified mail. She 

telephoned OWCP on January 24, 2020 and received a return call on January 28, 2020 instructing 

her to resend the letter. Appellant also alleged that OWCP had not timely responded to her prior 

requests for reconsideration. 

In a January 18, 2022 letter, appellant requested an appeal rights form as she “would like 

to appeal this case or do a reconsideration.”

By decision dated January 25, 2022, OWCP denied appellant’s request for reconsideration 

of its July 29, 2016 merit decision, finding that her January 18, 2022 reconsideration request was 

untimely filed and failed to establish clear evidence of error. 

LEGAL PRECEDENT

Pursuant to section 8124(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 is indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System (iFECS).6 The Board has found that the imposition of the oneyear time 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 

4

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.607(a).

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

7 G.L., Docket No. 18-0852 (issued January 14, 2020).
5

review to determine whether the request 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 claimant’s 

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

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.10 Evidence that does not raise a substantial question 

as to the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of error.11 

It is not enough merely to show that the evidence could be construed so as to produce a contrary 

conclusion.12 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. 13 The Board makes an 

independent determination as to whether a claimant has demonstrated clear evidence of error on 

the part of OWCP such that it abused its discretion in denying merit review in the face of such 

evidence.14

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.15 The claimant must present evidence that on its face shows that 

OWCP made an error. Evidence such as a detailed, well-rationalized medical report that, if 

submitted before the denial was issued, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error.16

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

8

20 C.F.R. § 10.607(b); T.C., Docket No. 19-1709 (issued June 5, 2020); Charles J. Prudencio, 41 ECAB 499, 

501-02 (1990).

9

Supra note 6. See also supra note 6 at Chapter 2.1602.5a (September 2020).

10 Supra note 8 at § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

11 S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

12 See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

13 Id.

14 Id.

15 R.K., Docket No. 19-1474 (issued March 3, 2020); see alsosupra note 8 at § 10.607(b); supra note 6 at Chapter 

2.1602.5 (September 2020).

16 R.P., Docket No. 22-0686 (issued September 30, 2022); W.B., Docket No. 20-1197 (issued February 3, 2021); 

A.R., Docket No. 15-1598 (issued December 7, 2015).
6

As noted above, a request for reconsideration must be received within one year of the date 

of the last merit decision for which review is sought. OWCP received appellant’s request for 

reconsideration on January 18, 2022 more than one year after the last merit decision dated 

July 29, 2016. Appellant’s request was, therefore, untimely filed. Consequently, she must 

demonstrate clear evidence of error.17

The underlying issue in the claim is whether appellant was in the performance of duty when 

she fell at 5:00 p.m. on January 21, 2014. In support of her untimely request for reconsideration, 

she submitted her January 18, 2022 letter requesting an appeal rights form as she wished to pursue 

an appeal or request for reconsideration. The record also contains appellant’s April 21, 2020 

statement regarding OWCP’s receipt of prior requests for reconsideration. As previously noted, 

clear evidence of error is intended to represent a difficult standard.18 The evidence must shift the 

weight in appellant’s favor.19 As neither appellant’s April 21, 2020 statement or her January 18, 

2022 letter addressed the issue of performance of duty, they are irrelevant to the claim. 20 Thus, 

this evidence does not raise a substantial question as to the correctness of OWCP’s decision.21

The Board finds that the arguments submitted by appellant in connection with her untimely 

request for reconsideration are insufficient to shift the weight of the evidence in her favor or raise 

a substantial question that OWCP erred in the issuance of its July 29, 2016 decision. Accordingly, 

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 of the 

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

17 Supra notes 8 and 9.

18 G.G., Docket No. 18-1072 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supranote 6 at Chapter 

2.1602.5 (September 2020).

19 L.W., Docket No. 18-1475 (issued February 7, 2019); Robert Burns, supra note 11;see also D.H., Docket No. 

21-0251 (issued May 9, 2022); R.S., Docket No. 18-0505 (issued July 24, 2018).

20 D.H., id.; see N.V., Docket No. 20-0781 (issued November 18, 2020); T.B., Docket No. 21-0045 (issued 

June 2, 2021).

21 D.H., id., see P.T., Docket No. 18-0494 (issued July 9, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the January 25, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 8, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board