United States Department of Labor

Employees’ Compensation Appeals Board

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C.M., Appellant

and

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, COLVILLE NATIONAL FOREST, 

CURLEW JOB CORPS CIVILIAN 

CONSERVATION CENTER, Colville, WA, 

Employer

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Docket No. 20-0374

Issued: December 2, 2022

Appearances: Case Submitted on the Record

Shane Michael, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 6, 20192 appellant, through counsel, filed a timely appeal from a June 11, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).3 As more 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 On February 4, 2020 appellant, through her counsel, requested oral argument before the Board. As appellant’s 

oral argument request was made more than 60 days after the December 6, 2019 filing of the present appeal, her request 

is untimely and the Board will proceed to consideration of the case on the record. See 20 C.F.R. § 501.5(b).

3 The Board notes that following the June 11, 2019 decision, OWCP and the Board received additional evidence.

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

than 180 days has elapsed from the last merit decision on the underlying issue of this case, dated 

November 12, 2009, to the filing of this appeal, pursuant to the Federal Employees’Compensation 

Act4(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.

FACTUAL HISTORY

On July 14, 1988 appellant, then a 29-year-old cook instructor, filed an occupational 

disease claim (Form CA-2) alleging that she developed bulimia, stress, and depression due to 

factors of her federal employment. OWCP accepted her claim for depression due to factors of her 

employment on March 23, 1989. On November 3, 1989 it expanded the acceptance of her claim 

to include bulimia. OWCP paid appellant wage-loss compensation on the periodic rolls. 

On October 5, 2009 OWCP referred appellant for a second opinion evaluation with

Dr. Gary Hudak, a Board-certified psychiatrist, scheduled for October 22, 2009. Appellant did not 

appear for the scheduled examination.

On October 26, 2009 OWCP proposed to suspend appellant’s wage-loss compensation as 

she failed to attend a scheduled medical examination with Dr. Hudak in accordance with 5 U.S.C. 

§ 8123(d). It afforded her 14 days to explain the reasons for her failure to attend and provide any 

supporting evidence. No response was received. 

By decision dated November 12, 2009, OWCP finalized the suspension of appellant’s 

wage-loss compensation under 5 U.S.C. § 8123(d) effective that date.

On April 24, 2018 appellant, through counsel, requested reconsideration of the suspension 

of compensation benefits due to appellant’s failure to attend the second opinion examination with

Dr. Hudak. Counsel contended that OWCP improperly referred her to Dr. Hudak. Appellant also 

submitted additional factual evidence regarding the alleged culture of the employing 

establishment. 

By decision dated June 11, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of appellant’s claim, 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.5 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 

4

5 U.S.C. § 8101 et seq.

5

Id. at § 8128(a);see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).
3

decision for which review is sought.6 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS).7 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.8

OWCP may not deny a reconsideration request solely because it was untimely filed. When 

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error. 9 If a request for 

reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit 

review.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.12 Evidence that does not raise a 

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

clear evidence of error.13 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.14 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.15

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

represent a difficult standard.16 The claimant must present evidence, which on its face shows that 

6

20 C.F.R. § 10.607(a).

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

8 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).

9

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).

10 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 7 at Chapter 2.1602.5 (September 2020).

11 A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D., 

Docket No. 16-1767 (issued January 12, 2017); Dean D. Beets, 43 ECAB 1153 (1992).

12 J.D., Docket No. 19-1836 (issued April6, 2020); LeonaN. Travis, 43 ECAB 227 (1999).

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

14 T.N., Docket No. 18-1613 (issued April29, 2020).

15 J.M., Docket No. 19-1842 (issued April23, 2020).

16 See supra note 7 at Chapter 2.1602.5a (September 2020); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).
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OWCP made an error.17 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.18 The Board makes an independent 

determination of whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.19

ANALYSIS

The Board finds that by its June 11, 2019 decision, OWCP properly denied appellant’s 

request for reconsideration, finding that it was untimely filed and failed to demonstrate clear 

evidence of error.

The most recent merit decision addressing the suspension of appellant’s wage-loss 

compensation in accordance with 5 U.S.C. § 8123(d) due to her failure to attend a second opinion 

examination was OWCP’s November 12, 2009 decision. Because it received her request for 

reconsideration more than one year after the November 12, 2009 merit decision, her request was 

untimely filed. Consequently, appellant must demonstrate clear evidence of error on the part of 

OWCP in its November 12, 2009 decision.

The Board further finds that appellant’s request for reconsideration failed to demonstrate

clear evidence of error. 

In support of appellant’s untimely request for reconsideration, counsel contended that 

OWCP improperly referred her to Dr. Hudak. The Board has held, however, that mere arguments 

of improper selection of a physician, without supporting evidence, are not sufficient to establish 

clear evidence of error.20

Appellant also submitted additional factual evidence regarding the alleged culture of the 

employing establishment. However, such evidence is not relevant to the issue at hand, and does 

not show that OWCP’s November 12, 2009 merit decision was incorrect at the time it was issued. 

This evidence does not raise a substantial question as to whether the November 12, 2009 decision 

was in error or prima facie shift the weight of the evidence in appellant’s favor. Therefore, these 

documents are insufficient to demonstrate clear evidence of error.21

Thus, the Board finds that the evidence submitted in support of the untimely request for 

reconsideration is insufficient to shift the weight of the evidence in favor of appellant’s claim or 

to raise a substantial question that OWCP erred in its November 12,2009 decision.22 Accordingly, 

17 C.C., Docket No. 21-0896 (issued December 2, 2021); R.G., Docket No. 21-0540 (issued November 9, 2021);

K.W., Docket No. 19-1808 (issued April2, 2020).

18 Id.

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

20 See V.L., Docket No. 17-1108 (issued October 16, 2017).

21 M.P., Docket No. 17-0367 (issued March 12, 2018); LeonaN. Travis,supra note 12.

22 J.M., supra note 15.
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the Board finds that OWCP properly denied appellant’s reconsideration request, as 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.

ORDER

IT IS HEREBY ORDERED THAT the June 11, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 2, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board