United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA 

CONNECTICUT HEALTHCARE SYSTEM, 

West Haven, CT, Employer

__________________________________________

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Docket No. 21-0251

Issued: May 9, 2022

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On December 8, 2020 appellant filed a timely appeal from a November 9, 2020 nonmerit 

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

elapsed from the last merit decision dated October 16, 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 the case. 

ISSUE

The issue is whether OWCP properly denied appellant’s October 20, 2020 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 April 9, 2019 appellant, then a 70-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that on March 13, 2019 he sustained injuries to his head, neck,

and back as a result of being struck by a passenger who he was transporting to medical care while

in the performance of duty. On the reverse side of the claim form the employing establishment

noted that it had not received all of the witness or police statements regarding the facts surrounding 

the alleged injury. Appellant stopped work on March 13, 2019.

In a March 18, 2019 primary care telephone note, Dr. Cynthia McNamara, an internal 

medicine specialist, related that appellant was driving for the employing establishment on 

March 13, 2019 when a passenger hit him on his back a couple of times and then jumped from the 

vehicle.

In an April 12, 2019 development letter, 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. In a separate letter of even date, OWCP notified the employing 

establishment of appellant’s traumatic injury claim and requested additional information from a 

knowledgeable supervisor. It afforded both parties 30 days to submit the necessary evidence.

OWCP thereafter received an incident report by A.E., an employing establishment police 

officer, who indicated that on March 13, 2019 appellant advised him that a passenger had punched 

and slapped him multiple times in the back, head, and neck area while he was driving and that, as 

a result, he was experiencing neck and back pain. A.E. noted that there appeared to be red marks 

on appellant’s neck and right upper shoulder, and he took photographs of the marks. Because the 

incident did not occur on the employing establishment’s property, he contacted the local police 

department to speak with appellant and investigate the matter further.

In a voluntary witness statement to the employing establishment police department dated 

March 13, 2019, D.N., another passenger in appellant’s vehicle at that time, alleged that when he 

and H.P. began to argue, H.P. grabbed him by his shoulder, pushed him, and told him to stop the 

vehicle.

A March 13, 2019 case/incident report from the local police department indicated that two 

officers met with appellant after the incident, and noted that he described engaging in a minor 

verbal argument with a passenger, who ultimately punched him in his back and right shoulder 

approximately 17 times. The officers observed the red marks on his neck, but suggested they were 

birthmarks, not evidence of an injury. They then traveled to the residence of the passenger, H.P., 

who indicated that appellant had accused him of being late, which led to an argument. H.P further 

indicated that he had attempted to exit the vehicle, but appellant prevented him from doing so and 

he eventually exited the vehicle at a nearby intersection without incident. The report also noted 

that, after reviewing D.N.’s March 13, 2019 statement, the local police contacted him on March 14, 

2019 and advised him that appellant had indicated H.P. had struck him 17 times. D.N. responded 

that “nothing like that happened at all.”

In a medical report dated April 15, 2019, Dr. Robert Henry, an internal medicine specialist, 

noted that appellant presented for follow up for an assault, which occurred on March 13, 2019. On
3

physical examination he noted bilateral upper extremity pain with range of motion at the shoulder 

and lumbar and thoracic spine tenderness. Dr. Henry diagnosed neck and back pain and 

recommended ongoing manual therapy.

In an April 23, 2019 response to OWCP’s development questionnaire, J.B., an employing 

establishment workers’ compensation specialist, noted that, based upon reviewing appellant’s 

claim, his statements to various police, and the witness statements, that he was grabbed and pushed 

and/or shaken by a passenger in the vehicle. She indicated there was no personal animosity 

between appellant and the passenger and, to her knowledge, appellant had not sustained any other 

injuries between March 13 and April 9, 2019.

In subsequent letters of controversion dated April 30 and May 23, 2019, J.B. requested that 

appellant’s claim be denied, contending that the evidence submitted was insufficient to establish 

that the incident occurred as alleged or a valid medical diagnosis causally related to the alleged 

incident.

By decision dated May 22, 2019, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the events surrounding the claimed injury 

occurred as alleged. Therefore, it concluded that the requirements had not been met to establish 

an injury as defined by FECA.

On September 23, 2019 appellant requested reconsideration of the May 22, 2019 decision 

and submitted additional evidence in support of his claim.

In a letter dated July 23, 2019, Dr. Brian Linde, acting chief of the employing 

establishment’s occupational health services, indicated that he evaluated appellant on March 13, 

2019 following an event, which took place during his work hours on that day and which resulted 

in a work-related injury.

In a letter dated July 29, 2019, Dr. Henry indicated that appellant provided a history of 

having been hit in the back of his head, neck, and back by a passenger on March 13, 2019. He 

noted that he first saw appellant for these issues on March 15, 2019 and diagnosed lumbar and 

cervical strains. Dr. Henry opined that the March 13, 2019 incident “very likely” caused these 

conditions.

In a letter dated August 6, 2019, Dr. McNamara noted that she saw appellant on March 19, 

2019 for an event that took place on March 13, 2019 during his work hours, which resulted in a 

work-related injury.

By decision dated October 16, 2019, OWCP denied modification.

On October 20, 2020 appellant requested reconsideration of OWCP’s October 16, 2019 

decision. In support of his request for reconsideration, he submitted a February 13, 2020 letter 

from the employing establishment, responding to his Freedom of Information Act (FOIA) request,

which included a redacted copy of D.N.’s March 13, 2019 voluntary witness statement and the 

March 20, 2019 police incident report. Appellant also submitted excerpts from the employing 

establishment’s safety manual and his November 5, 2019 request for assistance by his U.S. 

Senator.
4

By decision dated November 9, 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.2 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.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 be of sufficient probative value to shift the weight of the 

2

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).

3

20 C.F.R. § 10.607(a).

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

5 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).

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 (1990).

7 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 4 at Chapter 2.1602.5 (September 2020).

8

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

9

S.C., Docket No. 18-0126 (issued May 14, 2016); supranote 4 at Chapter 2.1602.5(a) (September 2020).
5

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

decision.10

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

difficult standard.11 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.12 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.13

ANALYSIS

The Board finds thatOWCP properly determined that appellant’s October 20, 2020 request 

for reconsideration was untimely filed. 

A request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.14 As appellant’s request for reconsideration was not received 

until October 20, 2020, more than one year after the issuance of OWCP’s October 16, 2019 merit 

decision, it was untimely filed. Consequently, he must demonstrate clear evidence of error by 

OWCP in denying the claim.15

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

part of OWCP in its October 16, 2019 decision. The underlying issue is whether he met his burden 

of proof to establish a traumatic injury in the performance of duty, as alleged. 

In support of his untimely request for reconsideration, appellant submitted a February 13, 

2020 letter from the employing establishmentresponding to his FOIA request, including a redacted 

copy of D.N.’s March 13, 2019 witness statement, and the March 20, 2019 police incident report. 

As previously noted, clear evidence of error is intended to represent a difficult standard.16 The 

evidence must shift the weight in appellant’s favor.17 Although appellant submitted additional 

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

11 G.G., supra note 5; see also 20 C.F.R. § 10.607(b); supranote 4 at Chapter 2.1602.5 (September 2020).

12 J.S., Docket No. 16-1240 (issued December 1, 2016); id. at Chapter 2.1602.5(a) (September 2020).

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

14 20 C.F.R. § 10.607(a).

15 Id. at § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57 ECAB 

149 (2005).

16 Supra note 11.

17 L.W., supra note 2; Robert Burns, supranote 7; see also R.S., Docket No. 18-0505 (issued July 24, 2018).
6

evidence in support of his reconsideration request, this evidence is duplicative and cumulative.

18

 

In addition, the November 5, 2019 request for assistance and excerpts from the employing 

establishment’s safety procedures are irrelevant to the underlying issue of whether appellant 

established a traumatic injury in the performance of duty on March 13, 2019, as alleged.19 Thus,

this evidence does not raise a substantial question as to the correctness of OWCP’s decision.20

For these reasons, the Board finds that the argument and evidence submitted by appellant 

in connection with his untimely request for reconsideration are insufficient to shift the weight of 

the evidence in his favor or raise a substantial question that OWCP erred in the issuance of its 

October 16, 2019 decision. Accordingly, OWCP properly denied his reconsideration request, 

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

On appeal appellant contends that his October 20, 2020 request for reconsideration was 

timely submitted on September 29, 2020. However, as explained above, timeliness is determined 

by the document receipt date of the request for reconsideration as indicated by the received date 

in iFECS.21 As explained above, appellant’s request for reconsideration was not received into 

iFECS until October 20, 2020, more than one year after OWCP’s October 16, 2019 decision. 

Therefore, OWCP properly determined that his reconsideration request was untimely filed.

CONCLUSION

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

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

error.

18 See G.B., Docket No. 18-1629 (issued April15, 2019); P.B., Docket No. 18-0265 (issued September 5, 2018); 

D.E., 59 ECAB 438 (2008).

19 See N.V., Docket No. 20-0781 (issued November 18, 2020); T.B., Docket No. 21-0045 (issued June 2, 2021).

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

21 Supra note 4.
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ORDER

IT IS HEREBY ORDERED THAT the November 9, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 9, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board