United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.A., Appellant

and

DEPARTMENT OF THE ARMY, FORT A.P. 

HILL, Bowling Green, VA, Employer

__________________________________________

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Docket No. 20-1483

Issued: December 19, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 4, 2020 appellant filed a timely appeal from a February 24, 2020 nonmerit 

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

elapsed from the last merit decision dated June 19, 2018 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 this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On December 5, 2017 appellant, then a 37-year-old firefighter, filed a traumatic injury 

claim (Form CA-1) alleging that on December 1, 2017 he developed back pain when he bent down 

to pick up a paint brush in the performance of duty. He stopped work on December 1, 2017. 

A December 1, 2017 hospital record prepared by a registered nurse related that appellant 

had sudden back pain when bending over to pick up a paint brush. Appellant had also indicated 

that he had a previous incident a year ago due to L5/6 bulging discs. 

December 1, 2017 lumbar computerized tomography (CT) scans noted mild diffuse disc 

bulges from L3/S1. 

In a December 1, 2017 work/school release form Dr. Robert D. Strangl, a Board-certified 

internist, released appellant to return to work on December 5, 2017. 

OWCP received Duty Status Reports (Form CA-17) dated December 5, 2017 from

Dr. Stephen D. Reinhardt, a Board-certified family practice physician, and December 13, 2017 

from Dr. Kara Foster-Weiss, a Board-certified family practice physician. These forms noted a 

December 1, 2017 injury when appellant bent to pick up a paint brush, and diagnosed lumbar disc 

herniation due to the incident. Work restrictions were provided. 

In a December 14, 2017 development letter, OWCP informed appellant that the evidence 

of record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. 

In a December 5, 2017 narrative report, Dr. Reinhardt related appellant’s history of injury,

provided examination findings and diagnosed lumbar disc disease and herniated lumbar disc 

without myelopathy. 

In a December 13, 2017 report, Dr. Foster-Weiss noted the employment incident, reviewed 

a CT scan, and provided examination findings. She diagnosed lumbar herniated disc without 

myelopathy. In a work capacity evaluation (Form OWCP-5c) dated December 22, 2017,

Dr. Foster-Weiss diagnosed L5-S1 herniated disc and provided work restrictions. 

In a Form CA-17 dated December 28, 2017, Dr. Reinhardt provided work restrictions, and 

diagnosed L5-S1 herniated disc. 

By decision dated January 16, 2018, OWCP denied the claim finding that the evidence of 

record was insufficient to establish causal relationship between appellant’s diagnosed condition 

and the accepted employment incident. 
3

On January 28, 2018 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. 

OWCP continued to receive evidence. In a Form OWCP-5c and progress notes dated 

January 9, 2018, Dr. Marc Caligtan, a Board-certified physiatrist, diagnosed chronic pain 

syndrome, provided examination findings, and listed work restrictions. 

In a report dated January 25, 2018, Dr. Jennifer Hopp, a family medicine specialist and 

Board-certified sports medicine physician, noted appellant’s medical history and related that on 

December 1, 2017 he sustained an injury while moving/installing/painting cabinets. She reviewed 

diagnostic testing and diagnosed L3-4, L4-5, and L5-S1 disc herniations. Dr. Hopp opined that 

appellant’s midline low back pain and surrounding paraspinal muscular spasms were consistent 

with a central lumbar disc herniation and likely caused by heavy lifting performed on 

December 1, 2017. 

Dr. Reinhardt, in a January 25, 2018 report, diagnosed midline L5-S1 herniated disc based 

on review of a CT scan and examination findings. In a February 6, 2018 report, Dr. Caligtan 

diagnosed low back strain and chronic pain syndrome. 

By decision dated June 19, 2018, OWCP’s hearing representative affirmed the January 16, 

2018 decision. 

In a July 19, 2018 report, Dr. Caligtan related that appellant’s lumbar strain had resolved. 

He noted that appellant’s back pain began on December 1, 2017 while renovating a kitchen at 

work. 

On August 13, 2019 appellant requested reconsideration and submitted a witness statement 

from W.B., a coworker, dated August 9, 2019. 

OWCP also received a July 19, 2018 report, wherein Dr. Reinhardt listed diagnoses of 

lumbar disc disease and lumbar herniated disc without myelopathy. Dr. Reinhardt explained that 

appellant’s medical history included a prior disc bulge, but no disc herniation was noted until the 

December 1, 2017 CT scan. He opined that it was reasonable to conclude that appellant’s disc 

herniation had been caused by the accepted December 1, 2017 employment incident. 

On August 15, 2018 Dr. Caligtan described the December 1, 2017 employment incident 

and noted that appellant was seen for acute lumbar pain on January 9, 2018. He opined that the 

diagnosed lumbar strain and appellant’s symptoms were caused by the work incident. With respect 

to a prior incident of back pain, Dr. Caligtan indicated that it had occurred more than one year 

prior to the December 1, 2017 injury, was transient, treated with medication, and that appellant

had returned to full duty the following day. 

In an October 4, 2018 report, Dr. Reinhardt concluded that it was reasonable to attribute 

appellant’s lumbar pain and herniated disc to the accepted December 1, 2017 employment 

incident. 

In a December 9, 2019 report, Dr. Charles Vokac, a physical medicine and rehabilitation 

specialist, noted appellant’s history of injuries in 2016 and on December 1, 2017. A review of the 
4

December 1, 2017 lumbar CT scan revealed disc bulges and slight L5-S1 herniation. Dr. Vokac 

indicated that it was difficult to comment on appellant’s case as he was not the initial treating 

physician and due to the passage of time. However, he opined, based on appellant’s history and 

the lack of any other injures, that it was likely that the 2016 and 2017 injuries were responsible for 

appellant’s 2018 symptoms. 

By decision dated February 24, 2020, OWCP denied appellant’s reconsideration request, 

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.3 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.4 Timeliness is determined by the document receipt date (i.e., 

the received date in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).5 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.6

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.7 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.8 In this 

regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the 

prior evidence of record.9

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

issue which was decided by OWCP.10 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 

3

5 U.S.C. § 8128(a); M.D., Docket No. 20-0868 (issued April 28, 2021); L.W., Docket No. 18-1475 (issued 

February7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).

4

20 C.F.R. § 10.607(a).

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

6 M.D., supra note 3; 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).

7

See 20 C.F.R. § 10.607(b); M.D., id.; M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 

41 ECAB 499 (1990).

8 F.B., Docket No. 20-0910 (issued April23, 2021); L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., 

Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 5 at Chapter 2.1602.5 

(February2016).

9 M.D., supra note 3; J.M., Docket No. 19-1842 (issued April23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

10 M.D., id.; S.C.,Docket No. 18-0126 (issued May 14, 2016); supranote 5 at Chapter 2.1602.5(a) (February 2016).
5

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.11

OWCP’s 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. 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 that OWCP properly determined that appellant’s August 13, 2019 

reconsideration request was untimely filed.

OWCP’s regulations14 and procedures15 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 issues. 16 

The most recent merit decision was OWCP’s hearing representative’s June 19, 2018 decision. As 

appellant’s request for reconsideration was received by OWCP on August 13, 2019 more than one 

year after the June 19, 2018 OWCP decision, the Board finds that it was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error by OWCP in denying his 

traumatic injury claim.17

11 S.M., Docket No. 19-1961 (issued January 28, 2021); C.M., Docket No. 19-1211 (issued August5, 2020).

12 F.B., supra note 8; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5(a) 

(February2016).

13 R.O., Docket No. 20-1552 (issued March 29, 2021); D.S.,Docket No. 17-0407 (issued May 24, 2017).

14 20 C.F.R. § 10.607(a);see S.M., Docket No, 19-1961 (issued January 28, 2021); J.W., Docket No. 18-0703 

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

15 S.M., id.; VelettaC. Coleman, 48 ECAB 367, 370 (1997).

16 20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB 

149 (2005).

17 Id. at § 10.607(b);see S.M., supra note 14; M.W.,Docket No. 17-0892 (issued May 21, 2018);see S.M., Docket 

No. 16-0270 (issued April26, 2016).
6

The Board further finds, however, that this case is not in posture for decision as to whether 

appellant’s August 13, 2019 reconsideration request demonstrated clear evidence of error.

OWCP summarily denied appellant’s request for reconsideration without complying with 

the review requirements of FECA and its implementing regulations.18 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.19 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the 

decision of the Director of OWCP shall contain findings of fact and a statement of reasons.20 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.21

In denying appellant’s August 13, 2019 reconsideration request, OWCP failed to analyze 

the evidence as to whether it was sufficient to demonstrate clear evidence of error.22 The 

February 24, 2020 decision simply noted: “the submitted information does not provide evidence 

that [OWCP] erred in issuing the contested decision.” However, OWCP provided no discussion 

relative to the new medical evidence submitted by appellant.23 The Board will therefore set aside 

OWCP’s February 24, 2020 decision and remand the case for an appropriate decision on his

untimely reconsideration request, which describes the evidence submitted on reconsideration and 

provides detailed reasons for accepting or rejecting the reconsideration request. 24

CONCLUSION

The Board finds that OWCP properly determined that appellant’s August 13, 2019 request 

for reconsideration was untimely filed. However, the Board further finds that the case is not in 

posture for decision with regard to whether the untimely reconsideration request demonstrates 

clear evidence of error.

18 V.R., Docket No. 19-0536 (issued February 22, 2021); T.P., Docket No. 19-1533 (issued April30, 2020).

19 5 U.S.C. § 8124(a).

20 20 C.F.R. § 10.126.

21 Supra note 5 at Chapter 2.1400.5 (February 2013).

22 See V.R., supra note 18; Order Remanding Case, J.K., Docket No. 20-0556 (issued August13, 2020).

23 See V.R., id.; Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.C.,Docket No. 16-

0563 (issued May 4, 2016).

24 See V.R., id.; Order Remanding Case, C.D., Docket No. 20-0450 (issued August 13, 2020).
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ORDER

IT IS HEREBY ORDERED THAT the February 24, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed 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 19, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board