United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SAMUEL S. STRATTON DEPARTMENT OF 

VA MEDICAL CENTER, Albany, NY, Employer

__________________________________________

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Docket No. 23-0210

Issued: July 26, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 30, 2022 appellant filed a timely appeal from a September 14, 2022 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent 

merit decision was a decision of the Board, dated January 11, 2019, which became final after 30 

days of issuance, and is not subject to further review.1 As there was no merit decision issued by 

OWCP within 180 days from 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.

1

20 C.F.R. § 501.6(d);see M.S.,Docket No. 18-0222 (issued June21, 2018); J.P.,Docket No. 17-0053 (issued 

May 23, 2017); R.M., Docket No. 14-1213 (issued October 15, 2014).

2

5 U.S.C. § 8101 et seq.
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.3 The facts and circumstances as presented 

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

follows.

On April 24, 2014 appellant, then a 63-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on April 17, 2014 she sustained a lower back strain when she slipped and 

twisted her back on gravel/dirt on an elevator floor, while in the performance of duty. She did not 

stop work. 

OWCP accepted the claim on June 10, 2014 for back sprain, lumbar region. 

On August 13, 2014 appellant stopped work and did not return. That, same date, she filed 

a notice of recurrence (Form CA-2a) alleging a return/increase of disability. Appellant explained 

that her symptoms had worsened despite medical treatment, and she experienced an increase in 

lower back spasms, as well as leg weakness and numbness. Appellant’s supervisor indicated that 

appellant was working in full-time capacity with no restrictions during the time of the alleged 

recurrence. 

On September 3, 2014 appellant filed claim for compensation (Form CA-7) for disability 

from work commencing August 13, 2014. 

In support of her disability claim, appellant submitted medical reports documenting 

treatment for left L5 radiculopathy, L4-5 disc rupture, and L5 nerve root compression, which she 

related to the April 17, 2014 employment injury.

4

 She further asserted that her work-related 

lumbar injury resulted in numbness and weakness in her lower extremities, causing her to fall on 

July 5, 2014. This resulted in a consequential right ankle injury, which appellant also related to 

the April 17, 2014 employment injury. 

By decisions dated November 7, 2014 and August 6, 2015, OWCP denied appellant’s 

claim for a recurrence, finding that the medical evidence of record was insufficient to establish a 

3 Docket No. 18-0616 (issued January 11, 2019), petition for recon. denied, Docket No. 18-0616 (issued 

September 28, 2020); Docket No. 16-0064 (issued June 1, 2016), petition for recon. denied, Docket No. 16-0064 

(issued December 2, 2016).

4

In a July 16, 2014 diagnostic report, Dr.Gary Wood, a Board-certified diagnostic radiologist, reported that a 

computerized tomography myelogram of the lumbar spine revealed multilevel degenerative changes of the lumbar 

disc spaces and facet joints. He explained that the combination of findings suggested mild compressive changes 

related to the L4 and L5 nerve roots between the regions of the lateral recesses and neural foramen at the levels of 

L3-4 and L4-5. 
3

worsening of her accepted April 17, 2014 employment injury such that she was disabled from her 

work commencing August 13, 2014.5

Appellant, through counsel, appealed to the Board on October 14, 2015. By decision dated 

June 1, 2016, the Board affirmed OWCP’s August 6, 2015 decision, finding that the evidence of 

record was insufficient to establish a worsening of her accepted April 17, 2014 employment injury 

commencingon or after August 13, 2014.6 The Board explained that the evidence did not establish 

that the acceptance of the claim should be expanded to include the additional conditions of left L5 

radiculopathy, L4-5 disc rupture, L5 nerve root compression, or a consequential right ankle injury. 

The Board further found that the evidence of record was insufficient to establish total disability as 

a result of the accepted back strain injury. 

On May 24, 2017 appellant, through counsel, requested reconsideration before OWCP. 

By decision dated August 16, 2017, OWCP denied modification of its prior decision.

Appellant, through counsel, appealed to the Board on January 30, 2018. By decision dated 

January 11, 2019, the Board affirmed OWCP’s August 16, 2017 decision, finding that the evidence 

of record was insufficient to establish a worsening of accepted April 17, 2014 employment injury 

such that she was disabled from her work duties commencing August 13, 2014.7

On February 1, 2022 appellant requested reconsideration of OWCP’s decision and argued

that her April 17, 2014 employment injury continued to worsen since the time of her initial work 

injury, which now impacted her lower extremities. She explained that her work-related back injury 

required surgical intervention in May 2015 and a subsequent surgery in June 2021. Appellant 

further explained that she could not work because of worsening and persistent back pain , which 

severely limited her daily activities. She requested an independent medical examination to 

evaluate her ongoing employment injury. 

By decision dated September 14, 2022, 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.8 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 

5 The Board notes that appellant underwent right ankle surgery on February 2, 2015 and a lumbar laminectomy on 

May 8, 2015. The surgeries were not authorized by OWCP.

6 Docket No. 16-0064 (issued June 1, 2016), petition for recon. denied, Docket No. 16-0064 (issued 

December 2, 2016).

7 Docket No. 18-0616 (issued January 11, 2019), petition for recon. denied, Docket No. 18-0616 (issued 

September 28, 2020).

8

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).
4

decision for which review is sought.9 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).

10

 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.11

OWCP may not deny a request for reconsideration 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. 12 If a request for 

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

review.13

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

issue which was decided by OWCP.14 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.15 Evidence that does not raise a 

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

clear evidence of error.16 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 request for reconsideration bears on the evidence previously of record and 

whether the new evidence demonstrates clear error on the part of OWCP. 17 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.18

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

difficult standard.19 The claimant must present evidence which on its face shows that OWCP made 

9

20 C.F.R. § 10.607(a).

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

11 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).

12 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).

13 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).

14 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).

15 J.D., Docket No. 19-1836 (issued April 6, 2020); Leone N. Travis, 43 ECAB 227 (1999).

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

17 T.N., Docket No. 18-1613 (issued April 29, 2020).

18 J.M., Docket No. 19-1842 (issued April 23, 2020).

19 See supra note 10 at Chapter 2.1602.5a (September 2020);see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).
5

an error.20 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.21 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP. 22

ANALYSIS

The Board finds that OWCP properly denied appellant’s request of reconsideration as it 

was untimely filed and failed to demonstrate clear evidence of error. 23

OWCP’s regulations24 and procedures25 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 issue(s). 26 

The most recent merit decision addressing appellant’s traumatic injury claim was the January 11, 

2019 decision of the Board.27 As her request for reconsideration was not received by OWCP until 

February 1, 2022, more than one year after the January 11, 2019 decision, the Board finds that it 

was untimely filed. Consequently, appellant must demonstrate clear evidence of error.

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

underlying issue is whether OWCP properly denied her claim for a recurrence of total disability 

commencing August 13, 2014 due to a material change/worsening of her accepted April 17, 2014 

employment injury. In support of her claim, appellant submitted a request for reconsideration and 

argued that her April 17, 2014 employment injury continued to worsen since the time of her initial 

employment injury, requiring surgical intervention in May 2015 and June 2021. She asserted that

she could not work because of worsening and persistent back pain, which impacted her lower 

extremities and severely limited her daily activities. Appellant did not, however, submit evidence 

in support of her reconsideration request raising a substantial question concerning the correctness 

of the denial of her claim.

20 K.W., Docket No. 19-1808 (issued April 2, 2020).

21 Id.

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

23 R.T., Docket No. 20-0298 (issued August 6, 2020).

24 20 C.F.R. § 10.607(a);see L.T., Docket No. 21-0844 (issued April21, 2023); J.W.,Docket No. 18-0703 (issued 

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

25 Supra note 19 at Chapter 2.1602.4.

26 20 C.F.R. § 10.607(b).

27 See N.P.,Docket No. 21-0042 (issued August18, 2021) (a timely request for reconsideration must be filed within 

one year of the Board’s decision, as it was the most recent merit decision).
6

Appellant did not submit evidence demonstrating that OWCP committed an error in

denying her claim for a recurrence of total disability in its August 16, 2017 decision.28 She has 

not otherwise submitted evidence of sufficient probative value to raise a substantial question as to 

the correctness of OWCP’s decision.

29

 Thus, appellant has not demonstrated clear evidence of 

error.30

As appellant’s request for reconsideration was untimely filed and failed to demonstrate 

clear evidence of error, the Board finds that OWCP properly denied her request for 

reconsideration.

31

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.

28 W.R., Docket No. 18-1042 (issued February 12, 2019).

29 T.H., Docket No. 19-0887 (issued October 20, 2020).

30 J.B., Docket No. 20-0630 (issued April 21, 2021).

31 With respect to findings made in the Board’s prior decisions, those matters are res judicata absent any further 

review by OWCP under section 8128 of FECA. See Robert G. Burns, supra note 16.
7

ORDER

IT IS HEREBY ORDERED THAT the September 14, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 26, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board