United States Department of Labor

Employees’ Compensation Appeals Board

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J.T., widow of J.T., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

DEPOT, Memphis, TN, Employer

__________________________________________

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Docket No. 23-0863

Issued: December 29, 2023

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 9, 2023 appellant filed a timely appeal from a December 13, 2022 nonmerit 

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

elapsed from OWCP’s last merit decision, dated November 29, 2021, to the filing of this appeal, 

pursuant to the Federal Employees’Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of this case. 3

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

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the December 13, 2022 decision, 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

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.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.4 The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated hereby by 

reference. The relevant facts are as follows.

On July 25, 1991 the employee, then a 42-year-old management analyst, filed a traumatic 

injury claim (Form CA-1) alleging that on July 24, 1991 he injured his left leg when he tripped on 

a piece of carpet and fell in his office. OWCP accepted the claim for a left ankle sprain. It 

subsequently expanded its acceptance of the claim to include causalgia of the left and right lower 

limbs, cellulitis of the right and left lower limb, cellulitis of an unspecified part of limb, chronic 

pain syndrome, complex regional pain syndrome (CRPS) of the bilateral lower limbs, 

displacement of a lumbar intervertebral disc without myelopathy, dry mouth, other cysts of the 

oral region, partial loss of teeth due to periodontal diseases, and lumbar spondylolisthesis. The 

employee stopped work on July 24, 1991 and did not return. OWCP paid him wage-loss 

compensation on the periodic rolls.

On April 18, 2019 appellant notified OWCP that the employee had passed away on 

April 12, 2019 and that she believed that his death was due to his accepted employment injury. 

By letter dated April 24, 2018, OWCP advised appellant of the type of medical evidence 

needed to establish that the employee’s accepted employment injuries caused or contributed to his 

death. It provided her with a claim form for compensation by widow, widower, and/or children 

(Form CA-5) to request survivor’s benefits. 

On June 10, 2019 appellant filed a Form CA-5 requesting survivor’s benefits. A physician 

assistant completed the medical portion of the CA-5 form and listed the employee’s death as CRPS 

with contributory causes of severe and relapsing cellulitis, atrial fibrillation, Parkinson’s disease, 

multiple injuries to the lumbar vertebrae, Type 2 diabetes mellitus, hypothyroidism, benign 

paroxysmal position vertigo, restless leg syndrome, cataracts, and severe dry mouth. The 

physician assistant related that after the employee’s last back surgery in 2016 he developed 

cellulitis, sepsis, and organ failure and was diagnosed with CRPS, which accelerated his health 

problems.

A certificate of death filed May 9, 2019 provided CRPS as the cause of the employee’s 

death on April 12, 2019 with underlying causes of atrial fibrillation, Parkinson’s disease, and type 

2 diabetes mellitus. 

In a report dated July 17, 2019, Dr. Sailaja Raju, who specializes in family medicine, 

advised that the employee developed cellulitis in his lower limbs after a 2016 surgery, following 

4 Docket No. 16-0731 (issued May 11, 2017).
3

which he was diagnosed to CRPS. She related that CRPS caused the employee’s pneumonia and 

atrial fibrillation which became “unresponsive to treatment and led to [the employee’s]subsequent 

passing.”

On November 13, 2019 Dr. Nizar Souayah, a Board-certified neurologist serving as a 

district medical adviser (DMA), that the employee’s condition may have made him vulnerable, but 

that his death “was related to pneumonia, atrial fibrillation, sepsis, and hypoxic brain injury. These 

conditions are not directly related to the [employee’s] work injury.” Dr. Souayah discussed 

appellant’s hospitalizationand multiple treatments,and again opined that the direct causes of death 

were unrelated to the employment injury.

On December 6, 2019 OWCP referred the evidence to Dr. Frank P. Lin, a Board-certified 

neurologist, for a second opinion regarding the cause of the employee’s death. 

In a report dated December 6, 2019, Dr. Lin reviewed the employee’s history of injury and 

subsequent surgeries. He opined that the accepted July 24, 1991 employment injury did not cause

or accelerate the employee’s death. Dr. Lin noted that in April 2019 the employee was hospitalized 

due to pneumonia, sepsis, and respiratory failure. He related, “The direct cause of death is the 

cardiac arrest and hypoxic brain injury which are secondary to the sepsis, pneumonia, and atrial 

fibrillation.” 

By decision dated January 16, 2020, OWCP denied appellant’s claim for survivor’s 

benefits, finding thatthe medical evidence was insufficient to establish causal relationship between 

the employee’s death and his accepted employment injury. 

On February 13, 2020 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearing and Review. 

By decision dated August 31, 2020, OWCP’s hearing representative affirmed the 

January 16, 2020 decision. 

On August 31, 2021 appellant, through counsel, requested reconsideration. She submitted 

a September 5, 2020 report from Dr. Raju, who related that CRPS accelerated the employee’s 

death. 

By decision dated November 29, 2021, OWCP denied modification of its August 31, 2020 

decision. The decision contained appeal rights, including the right to reconsideration or review by 

the Board.

On July 26, 2022 Dr. Francis X. Camillo, a Board-certified orthopedic surgeon, advised 

that he had treated the employee since 2016. He related that, after the employee’s July 19, 2016 

back surgery, he had developed cellulitis and causalgia and was diagnosed with CRPS. 

Dr. Camillo advised that the employee was in a wheelchair due to severe and debilitating CRPS,

and developed high blood pressure and atrial fibrillation (A-fib) as a result of Ketamine infusions 

to treat the CRPS. He indicated that the employee was hospitalized on April 3, 2019 for pulmonary 

problems and cardiac arrest due to A-fib and ventricular tachycardia, which caused an anoxic brain 

injury and death. Dr. Camillo related that, while the employee was admitted due to respiratory 

problems, it did not cause his death. He asserted, “The cardiac arrest was caused and/or accelerated 
4

by the work injury as it was the work injury that increased the blood pressure and caused the Afib.” 

On December 4, 2022 appellant, through counsel, requested reconsideration. Counsel 

noted that OWCP had failed to respond to the employee’s request to expand the acceptance of his 

claim to include diabetes and an aggravation of Parkinson’s disease. He argued that Dr. Souayah 

used an incorrect standard of causation in finding that work was not the direct cause of the 

employee’s death rather than addressing whether it was a contributing cause. Counsel noted that

Dr. Lin attributed the cause of death, in part, to sepsis, a complication from a back surgery that the 

employee’s physician should be an accepted condition. He maintained that the employee’s CRPS 

had worsened his diabetes and elevated his blood pressure, because of ketamine injections, 

resulting in A-fib. Counsel argued that both Dr. Lin and Dr. Souayah found that “these 

complications led to [the employee’s] death” and that when the correct standard was applied the 

claim was compensable.

On December 7, 2022 appellant’s counsel contended that OWCP’s November 29, 2021 

decision failed to contain appeal rights. In a December 9, 2022 response, OWCP advised that the 

November 29, 2021 decision did in fact include appeal rights. 

By decision dated December 13, 2022, OWCP denied appellant’s request for 

reconsideration as it was untimely filed and did not demonstrate clear evidence of error. It noted 

that she had submitted new medical evidence, but found that new medical evidence was not 

considered in clear evidence of error determinations, and that she had therefore not established 

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 

decision for which review is sought.6 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s Integrated Federal Employees’Compensation System (iFECS).7 

Imposition of this one-year filing limitation does not constitute an abuse of discretion. 8

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.9 OWCP’s procedures provide that it will reopen a claimant’s case for merit 

5

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).

6

20 C.F.R. § 10.607(a).

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

8 W.B., Docket No. 23-0473 (issued August 29, 2023); G.G., Docket No. 18-1072 (issued January7, 2019); LeonD. 

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

9

See 20 C.F.R. § 10.607(b);R.C., Docket No. 21-0617 (issued August25, 2023); M.H., Docket No. 18-0623 (issued 

October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990).
5

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.10 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.11

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

issue which was decided by OWCP.12 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.13

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

difficult standard. 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.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 found that appellant’s request for reconsideration 

was untimely filed.

OWCP’s regulations16 and procedures17 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 

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

also id. at § 10.607(b); supra note 7 at Chapter 2.1602.5 (September 2020).

11 S.D., Docket No. 23-0626 (issued August24, 2023); J.M., Docket No. 19-1842 (issued April23, 2020); RobertG. 

Burns, 57 ECAB 657 (2006).

12 J.M., Docket No. 22-0630 (issued February 10, 2023); S.C., Docket No. 18-0126 (issued May 14, 2016).

13 C.M., Docket No. 19-1211 (issued August 5, 2020); Robert G. Burns, supra note 11.

14 J.S., Docket No. 16-1240 (issued December 1, 2016);supra note 7 at Chapter 2.1602.5(a) (September 2020).

15 L.J., Docket No. 23-0282 (issued May 26, 2023); D.S., Docket No. 17-0407 (issued May 24, 2017).

16 20 C.F.R. § 10.607(a); see L.T., Docket No. 21-0844 (issued April 21, 2023); J.W., Docket No. 18-0703 (issued 

November 14, 2018); Alberta Dukes, 56 ECAB 247 (2005). 

17 Supra note 7 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).
6

reconsideration within one year also accompanies any subsequent merit decision on the issues. 18 

The most recent merit decision was OWCP’s November 29, 2021 decision. As appellant’s 

December 4, 2022 request for reconsideration was received more than one year after the 

November 29, 2021 decision, the Board finds that it was untimely filed. Therefore, she must 

demonstrate clear evidence of error by OWCP in denying her claim for survivor’s benefits.

19

The Board further finds that OWCP summarily denied appellant’s request for 

reconsideration without complying with the review requirement of FECA and its implementing 

regulations.20 As noted, section 8124(a) of FECA provides that OWCP shall determine and make 

a finding of fact and make an award for or against payment of compensation.21 Its regulations at 

20 C.F.R. § 10.126 provide that the decision of the director of OWCP shall contain findings and 

facts and a statement of reasons.22 As well, OWCP’s procedures provide that the reasoning behind 

OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the 

claim, and the kind of evidence which would overcome it. 23

In denying appellant’s request for reconsideration, OWCP acknowledged her

reconsideration request and receipt of the 2022 reports from Dr. Camillo. It did not address the 

legal arguments raised by counsel that Dr. Souayah used an incorrect causation standard and that, 

if the correct standard was applied, Dr. Lin and Dr. Souayah found that complications from CRPS 

caused the employee’s death. The Board will therefore set aside OWCP’s December 13, 2022 

decision, and remand the case for an appropriate decision on appellant’s untimely reconsideration 

request, which addresses the legal arguments raised by counsel.

24

CONCLUSION

The Board finds that appellant’s request for reconsideration was untimely filed. The Board 

further finds that the case is not in posture for decision regarding whether she has demonstrated 

clear evidence of error.

18 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

19 Id. at § 10.607(b); see W.B., Docket No. 23-0473 (issued August 29, 2023); M.W., Docket No. 17-0892 (issued 

May 21, 2018).

20 See I.L., Docket No. 23-0329 (issued August 1, 2023); L.J., supra note 15; M.G., Docket No. 21-0893 (issued 

December 27, 2021); see also id. at § 10.607(b).

21 5 U.S.C. § 8124(a).

22 20 C.F.R. § 10.126.

23 Supra note 7 at Chapter 2.1400.5 (February 2013) (all decisions should contain findings of fact sufficient to 

identify the benefit being denied and the reason for the disallowance).

24 See L.J., supra note 15; V.R., Docket No. 19-0536 (issued February 22, 2021).
7

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2022 decision of the Office of 

Workers’Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: December 29, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board