United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

CORPS OF ENGINEERS, Omaha, NE, Employer

__________________________________________

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Docket No. 23-0396

Issued: December 27, 2023

Appearances: Case Submitted on the Record

Guadalupe Dominguez, for the appellant1

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 January 17, 2023 appellant, through his representative, filed a timely appeal from a

September 21, 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 

February 17, 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 September 21, 2022 decision, OWCP received additional evidence and 

appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedureprovides: “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, 

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

FACTUAL HISTORY

On January 5, 2010 appellant, then a 33-year-old realty specialist, filed a traumatic injury 

claim (Form CA-1) alleging that on June 20, 2009 he sustained injury to both shoulders when he 

was unloading furniture from a truck while in the performance of duty.

OWCP accepted the claim for bilateral shoulder impingement syndrome; left shoulder 

calcifying tendinitis; disorder of bursae and tendons in left shoulder; and sprain of left shoulder,

left upper arm, and left rotator cuff. Appellant underwent OWCP-authorized left shoulder rotator 

cuff repair and left arthroscopic subacromial decompression surgery on July 8, 2010. 

On December 8, 2020 appellant filed a notice of recurrence (Form CA-2a) alleging that he 

sustained a recurrence of medical treatment as of June 20, 2009, the same date as his accepted 

employment injury. He noted that due to work, he was only able to receive treatment for his left 

shoulder and he had been favoring his right shoulder and now needed medical treatment for the 

right shoulder.

In a development letter dated December 4, 2020, OWCP advised appellant of the 

deficiencies of his recurrence claim. It informed him of the type of evidence required and provided 

a questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary 

evidence. No response was received within the time allotted.

By decision dated February 17, 2021, OWCP denied appellant’s claim for a recurrence of 

the need for medical treatment as the medical evidence of record was insufficient to establish that 

he required additional medical treatment due to a worsening of his accepted work-related 

conditions, without an intervening cause. It also found that the medical evidence of record was 

insufficient to establish that his current condition was related to his original injury, without an 

intervening cause.

In a development letter dated March 9, 2021, OWCP again advised appellant of the 

deficiencies of his recurrence claim and informed him of the type of evidence required. It provided 

a questionnaire for his completion and afforded him 30 days to submit the necessary evidence. 

On March 29, 2021 OWCP received appellant’s March 24, 2021 response to its 

development questionnaire. He indicated that around October 2019 he was carrying his backpack 

and felt a sharp pain while lifting it onto his right shoulder. Appellant explained that he was 

released to regular work by his physician but told to monitor the right shoulder. He explained that 

it was “never fixed” and he continued to have pain off and on, which had worsened.

OWCP received diagnostic reports and treatment notes that addressed appellant’s 

additional right shoulder conditions and need for surgical treatment. 

In a letter dated July 16, 2021, appellant requested an “expansion” of the acceptance of his 

claim to include a right rotator cuff tear caused by his accepted June 20, 2009 employment injury. 

He noted that on January 25, 2010 diagnostic tests were performed on both shoulders and 

uploaded. Appellant reported that despite being told by a physician that his right shoulder 
3

condition would repair itself, he continued to experience increasing pain and could hardly lift his 

right arm. He indicated that on March 26, 2016 he was advised by a second physician that rotator 

cuff surgery was promptly needed because he did not undergo the surgery earlier.

OWCP subsequently received additional medical evidence.

In a memorandum of telephone call (Form CA-110) dated August 11, 2021, appellant 

informed OWCP that he had been trying to obtain the status of his “recon[sideration] request”

uploaded July 16, 2021.” He related that he was told by a congressional office that he should have 

received an acknowledgement letter. An OWCP claims examiner indicated that appellant’s 

request was indexed as an incoming/statement and reports and not as an incoming reconsideration 

request. She further indicated that she had “reindexed” his request as of August 11, 2021 and it 

was now being tracked. The claims examiner then informed appellant that his reconsideration 

request would be assigned to a quality assurance and mentoring examiner (QAM) for review, a 

decision would be issued within 90 days, and an acknowledgement letter would be forthcoming.

On September 15, 2022 appellant, through his representative, requested reconsideration of 

the February 17, 2021 decision. She contended that appellant had submitted sufficient medical 

evidence to establish a recurrence of the need for medical treatment due to the worsening of his 

accepted employment-related conditions.

In a decision dated September 21, 2022, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.4

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.5 To be entitled to a merit review of an OWCP decision, a request for reconsideration 

must be received by OWCP within one year of the date of OWCP’s decision for which review is 

sought.6 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 

4 The Board notes that while OWCP’s September 21, 2022 letter was not accompanied by appeal rights, it was a 

final adverse decision issued by OWCP. In that letter, OWCP found that the appellant’s request for reconsideration 

was untimely filed and failed to demonstrate clear evidence of error. In considering whether a document constitutes 

a final decision, it is not the form, but the content and the intention of OWCP that is determinative. K.K., Docket No. 

19-0652 (issued September 19, 2019);see Henry F. Dyer, Docket No. 05-452 (issued May 13, 2005) (the Board held 

that a July 22, 2004 letter with no appeal rights attached constituted a final decision. The Board concludes, therefore, 

that the September 21, 2022 letter was an appealable final decision subject to review under 20 C.F.R. §§ 501.2(c) and 

501.3(a). See B.K., Docket No. 23-0126 (issued May 10, 2023); R.G., Docket No. 21-0706 (issued April17, 2023);

K.W., Docket No. 18-0055 (issued March 8, 2019); L.L., Docket No. 18-0117 (issued February 25, 2019).

5

5 U.S.C. § 8128(a);see M.M., Docket No. 21-1203 (issued December 22, 2022); 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).
4

(iFECS).7 The Board has found that the imposition of this one-year filing limitation does not 

constitute an abuse of discretion.8

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 

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 review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the 

claimant’s request 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 decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.12 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion. 13 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 evidence of error on the 

part of OWCP.14 To demonstrate clear evidence of error, the evidence must not only be of 

sufficient probative value to create a conflict in medical opinion or establish a clear procedural 

error, but 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 The Board 

makes an independent determination of 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.16

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

8 G.G., Docket No. 18-1074 (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);R.S.,Docket No. 19-0180 (issued December 5, 2019); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

10 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; supra note 7 at Chapter 2.1602.5a (September 2020).

11 J.M., Docket No. 19-1842 (issued April 23, 2020); J.W.,Docket No. 18-0703 (issued November 14, 2018);

Robert G. Burns, 57 ECAB 657 (2006).

12 20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

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

14 B.W., supra note 12.

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

16 U.C., Docket No. 19-1753 (issued June10, 2020); Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma 

Matthews, 44 ECAB 765, 770 (1993).
5

ANALYSIS

The Board finds that OWCP improperly determined that appellant’s request for 

reconsideration was untimely filed.

OWCP denied appellant’s claim for a recurrence of the need for medical treatment by 

decision dated February 17, 2021, as the medical evidence of record was insufficient to establish 

that he required additional medical treatment due to a worsening of his accepted June 20, 2009 

work-related conditions or that he sustained an additional condition causally related to his 

employment-related injury, without an intervening cause. In its September 21, 2022 decision, 

OWCP found that it received appellant’s request for reconsideration more than one year after the 

February 17, 2021 merit decision. Because appellant’s request was untimely filed, it applied the

clear evidence of error standard in determining whether to undertake further merit review of the 

claim. OWCP ultimately concluded that appellant had not demonstrated clear evidence of error, 

and thus, denied further merit review of the claim. The Board finds, however, that appellant timely 

requested reconsideration on July 16, 2021.

In a July 16, 2021 letter, received by OWCP on that date, appellant requested an 

“expansion” of the acceptance of his claim to include a right rotator cuff tear caused by his 

accepted June 20, 2009 employment injury. He noted that diagnostic tests had been performed on 

both shoulders and uploaded to his case file. Appellant submitted additional medical evidence in 

support of his claim. No special form is required as long as the request is made in writing, identifies 

the decision and specific issue to be considered, and is accompanied by relevant and pertinent new 

evidence not previously considered.

17

 The word reconsideration does not need to be stated in the 

request for it to be considered valid, but sufficient detail should be provided to discern the decision 

being contested.18 Although the July 16, 2021 letter does not mention the word reconsideration, 

appellant intimated that he wanted a review of his recurrence claim as he specifically addressed 

whether he sustained an additional employment-related right shoulder condition by noting his 

submission of supportive medical evidence.

Moreover, the record contains a Form CA-110 dated August 11, 2021, which indicated that 

appellant specifically requested reconsideration on July 16, 2021, and that OWCP incorrectly 

processed his request. On August 11, 2021 appellant inquired about the status of his 

“recon[sideration] request” uploaded July 16, 2021.” He reported that he had not received an 

acknowledgment letter regarding his request. In response, an OWCP claims examiner 

acknowledged that appellant’s July 16, 2021 request was incorrectly processed as an 

incoming/statement and reports rather than an incoming reconsideration request. She “reindexed”

his request for reconsideration as of August 11, 2021, and advised him that his reconsideration 

request would be assigned to a QAM for review, a decision would be issued within 90 days, and 

an acknowledgement letter would be forthcoming.

17 P.H., Docket No. 21-0364 (May13, 2022); M.W.,Docket No. 21-0841 (issued October 26, 2021); E.S., Docket 

No. 17-0698 (issued July 14, 2017); R.D., Docket No. 14-896 (issued August1, 2014); Jack D. Johnson, 57 ECAB 

593 (2006); Vicente P. Taimanglo, 45 ECAB 504 (1994).

18 Id.; see also M.H., Docket No. 14-1389 (issued October 22, 2014).
6

In light of the foregoing, the Board finds that appellant’s July 16, 2021 letter and medical 

evidence constituted a timely request for reconsideration. 19

As appellant filed a request for reconsideration within one year of the February 17, 2021 

OWCP decision, the Board finds that OWCP improperly denied his reconsideration request by 

applying the legal standard for cases where reconsideration is requested after more than one year 

has elapsed. OWCP should have applied the standard reserved for timely reconsideration requests 

as set forth in 20 C.F.R. § 10.606(b)(3).20 Since it erroneously reviewed the evidence submitted 

in support of appellant’s reconsideration request under the more stringent clear evidence of error 

standard, the Board will remand the case for review of this evidence under the proper standard of 

review for a timely reconsideration request, to be followed by an appropriate decision.21

CONCLUSION

The Board finds that OWCP improperly determined that appellant’s request for 

reconsideration was untimely filed.

19 Supra note 17; see also D.S., Docket No. 15-1841 (issued June 8, 2016); C.M.,Docket No. 11-1988 (issued 

June 6, 2012).

20 20 C.F.R. § 10.606(b)(3) of OWCP’s regulations provide that a request reconsideration must be in writing and 

set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes 

relevant and pertinent new evidence not previously considered by OWCP.

21 Supra note 17.
7

ORDER

IT IS HEREBY ORDERED THAT the September 21, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: December 27, 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