United States Department of Labor 

Employees’ Compensation Appeals Board 

A.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Akron, OH, Employer 

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Docket No. 14-1427 

Issued: November 21, 2014 

Appearances: 

Alan J. Shapiro, Esq., for the appellant Case Submitted on the Record 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On June 2, 2014 appellant, through his attorney, filed a timely appeal of a March 17, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his 

request for reconsideration. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision. As more 

than 180 days have elapsed from August 2, 2012, the date of the most recent OWCP merit 

decision, the Board lacks jurisdiction to review the merits of the case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for 

reconsideration of the merits on the grounds that his request was untimely filed and failed to 

demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 25, 2010 appellant, then a 46-year-old medical technician, filed a traumatic 

injury claim alleging that on January 11, 2010 he was lifting a patient from the floor and 

sustained a torn chest muscle and a sprained lower back in the performance of duty. He did not 

initially stop work but later stopped on April 9, 2010. OWCP accepted the claim for a chest wall 

strain, neck strain and lumbar strain.2

Appellant requested that the claim be expanded to include a lumbar herniated disc and 

degenerative disc disease. An April 29, 2010 magnetic resonance imaging (MRI) scan of the 

lumbar spine read by Dr. Brian Hayes, a Board-certified diagnostic radiologist, revealed a diffuse 

disc bulge with large super imposed left paracentral extruded disc herniation at the L4-5 level. 

In a May 11, 2010 report, Dr. William Ritchey, an osteopath Board-certified in family 

medicine, noted that appellant was seen on February 1, 2010 with a complaint of pain in the left 

side of his chest and pain in his neck. He related a history that a “couple of weeks ago” appellant 

was lifting a patient at work and felt left rib pain. Dr. Ritchey explained that the pain was on the 

left mid-axillary line in the area of the seventh and eight intercostal spaces with a palpable mass 

on the anterior chest in the same region. He noted that appellant’s only previous medical 

problem was that of hypertension, which was controlled with medication. Dr. Ritchey stated that 

a February 6, 2010 x-ray of appellant’s ribs and chest revealed no acute pathology. On March 2, 

2010 appellant was seen with complaints of chest and low back pain. Dr. Ritchey stated that 

appellant indicated that he developed the symptoms approximately two weeks after lifting a 

patient at work. He examined appellant and diagnosed diffuse disc bulge with large 

superimposed left paracentral extruded disc herniation at the L4-5 level, mild degenerative 

changes of L3-4 and sacralization of L5 lumbar level. Dr. Ritchey advised that he was 

professionally unable to ascertain the cause of the findings seen on the MRI scan. He noted that 

appellant had been a patient since July 11, 2000 and never had a complaint of low back pain until 

after February 1, 2010. 

On May 19, 2010 OWCP referred appellant to Dr. Manhal Ghanma, a Board-certified 

orthopedic surgeon, for a second opinion to determine the extent of any injury-related conditions 

and disability. In a June 14, 2010 report, Dr. Ghanma reviewed appellant’s history of injury and 

medical treatment. He found that while there were abnormalities in appellant’s lumbar spine as 

evidenced by the April 29, 2010 lumbar MRI scan, they were likely preexisting. Dr. Ghanma 

noted that there was no evidence of abnormal illness behavior, but found evidence of symptom 

magnification. Dr. Ghanma concluded that there was no current low back, chest or cervical 

strain. He determined that the lumbar findings on the MRI scan were not related to the accepted 

injury. 

On November 9, 2010 OWCP referred appellant to Dr. Ralph J. Kovac, a Board-certified 

internist, for an impartial medical evaluation to resolve the conflict in opinion between 

Dr. Ritchey, appellant’s attending physician, and Dr. Ghanma, the second opinion physician, on 

the issue of disability related to the January 11, 2010 injury. 

 2

 On May 19, 2010 OWCP found that appellant was not entitled to continuation of pay as he did not file his claim 

within 30 days from the injury date. 
3

In a report dated November 29, 2010, Dr. Kovach reviewed appellant’s history of injury 

and treatment. He explained that appellant had preexisting findings on his lumbar MRI scan 

study that included degeneration and multiple bulges, as well as the other findings that would not 

have occurred as a result of the injury that appellant sustained. Dr. Kovach determined that 

appellant had no evidence of a cervical injury or any evidence of any rib strain. He explained 

that appellant’s only findings were subjective findings that included pain on palpation of the left 

lower back. Dr. Kovach determined that, objectively, there were no findings to substantiate the 

subjective complaints. At the time of his evaluation, the injury-related conditions had resolved. 

Furthermore, there was no evidence of any cervical injury of the neck or chest wall or lower 

back. Dr. Kovach explained that there were no objective findings to support ongoing injuries 

caused, accelerated, aggravated or precipitated by the January 11, 2010 job injury. 

On July 8, 2011 OWCP issued a notice of proposed termination of compensation. It 

found that the weight of the medical evidence was represented by the report of Dr. Kovach and 

established that residuals of the work injury of January 11, 2010 had ceased.3

 

In a September 15, 2011 decision, OWCP terminated appellant’s benefits effective that 

date. It found that the weight of medical evidence rested with Dr. Kovach, the impartial medical 

examiner, who found that appellant had no residuals of the accepted conditions. 

On September 19, 2011 appellant’s representative requested a telephonic hearing, which 

was held on October 24, 2011. 

In an April 12, 2012 decision, the hearing representative affirmed the September 15, 2011 

decision. She found that OWCP properly terminated benefits as the weight of the medical 

evidence established that the work-related medical conditions had ceased. 

On April 27, 2012 appellant’s attorney requested reconsideration of the April 12, 2012 

decision. On August 2, 2012 OWCP denied modification of the September 15, 2011 termination 

decision. 

On February 3, 2014 appellant’s attorney again requested reconsideration of the April 12, 

2012 decision. He submitted evidence from Dr. Scott Miller, an orthopedic surgeon and 

osteopath.4

In a December 5, 2013 form report, Dr. Miller noted that appellant related that he was 

injured on January 11, 2010 while lifting a patient. He saw appellant on November 17, 2011 and 

advised that he complained of severe low back pain and left leg radicular symptoms of a one 

year duration. Appellant noted that his symptoms persisted without improving or worsening. On 

examination Dr. Miller noted positive straight leg raise on the left at 30 degrees, right 45 degrees 

and absent left Achilles reflex with weakness of the left quadriceps. Dr. Miller advised that an 

 3

 In a separate July 8, 2011 decision, OWCP denied appellant’s request to expand his claim to include the 

conditions of herniated disc at L4-5 and/or degenerative disc disease at L3-4. On December 20, 2011 an OWCP 

hearing representative affirmed the July 8, 2011 decision. She found that the evidence did not establish that 

appellant had a herniated lumbar disc and lumbar degenerative disc disease casually related to the work injury. 

4

 With his April 27, 2012 reconsideration request, appellant also submitted reports from Dr. Miller. 
4

MRI scan revealed a large extruded disc fragment at L5-S1 causing severe nerve root 

compression. He diagnosed L5-S1 herniated disc. Dr. Miller signed a preprinted causal 

relationship statement that advised: “[i]n my medical opinion, the facts of injury are the direct 

and proximate cause of the diagnosis that I cited above. This is based on reasonable medical 

probability. There may be other causes for this medical problem, but one of the causes is clearly 

the activities of work described by the patient and described above.” (Emphasis omitted.) 

In a March 17, 2014 decision, OWCP denied appellant’s request for reconsideration 

finding that it was not timely filed and failed to present clear evidence of error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease, or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”5 

OWCP’s imposition of a one-year time limitation within which to file an application for 

review as part of the requirements for obtaining a merit review does not constitute an abuse of 

discretionary authority granted OWCP under section 8128(a).6 This section does not mandate 

that OWCP review a final decision simply upon request by a claimant. 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations 

provides that an application for reconsideration must be sent within one year of the date of 

OWCP’s decision for which review is sought.7

Section 10.607(b) states that OWCP will consider an untimely application for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. The reconsideration request must establish that OWCP’s decision was, on its face, 

erroneous.8

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

that was decided by OWCP. The evidence must be positive, precise and explicit and must 

 5

 5 U.S.C. § 8128(a). 

6 Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

7

 20 C.F.R. § 10.607(a). 

8 Id. at § 10.607(b). 
5

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

question concerning the correctness of OWCP’s decision is insufficient to establish 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.9

 To show clear 

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

a conflict in the 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. The Board makes an independent 

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

such that OWCP abused its discretion in denying merit review in the face of such evidence.10

ANALYSIS 

In its March 17, 2014 decision, OWCP properly determined that appellant failed to file a 

timely reconsideration request. It issued its most recent merit decision on August 2, 2012. 

Appellant’s February 3, 2014 letter requesting reconsideration was submitted more than one year 

after the August 2, 2012 merit decision and was, therefore, untimely. 

The Board finds that the evidence submitted by appellant in support of his 

reconsideration request failed to demonstrate clear evidence of error. OWCP’s August 2, 2012 

decision found that the medical evidence submitted by appellant was not sufficient to support 

continued disability residuals of his work-related conditions. Appellant’s claim was accepted for 

strains of the chest wall, neck and low back. On reconsideration appellant’s attorney submitted a 

December 15, 2013 form report from Dr. Miller, who indicated that appellant reported an injury 

at work on January 11, 2010 while lifting a patient. He examined appellant and diagnosed L5-S1 

herniated disc. Dr. Miller signed a preprinted statement that “the facts of injury are the direct 

and proximate cause of the diagnosis that I cited above” and “one of the causes” of appellant’s 

condition was “clearly the activities of work described by the patient and described above.” The 

Board finds that this report is insufficient to establish clear evidence of error. The Board notes 

that clear evidence of error is intended to represent a difficult standard. Evidence such as a 

detailed, well-rationalized report which, if submitted prior to OWCP’s merit decision might 

require additional development of the claim, is insufficient to establish clear evidence of error.11 

Dr. Miller’s preprinted statement on causal relationship is not sufficient to raise a substantial 

question as to the correctness of OWCP’s decision. 

To establish clear evidence of error, the evidence submitted must be positive, precise and 

explicit and must manifest on its face that OWCP committed an error.12 Appellant did not 

 9 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001). 

10 Id.

11 See E.R., Docket No. 09-599 (issued June 3, 2009). 

12 Robert F. Stone, 57 ECAB 292 (2005). 
6

submit such evidence. Consequently, OWCP properly denied appellant’s reconsideration request 

as it does not establish clear evidence of error. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s claim for 

reconsideration of the merits on the grounds that it was untimely filed and failed to show clear 

evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the March 17, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 21, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board