United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Seattle, WA, Employer 

__________________________________________ 

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Docket No. 14-1188 

Issued: October 6, 2014 

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 28, 2014 appellant, through her representative, filed a timely appeal from a 

January 24, 2014 Office of Workers’ Compensation Programs’ (OWCP) decision which denied 

her reconsideration request on the grounds that it was untimely filed and failed to present clear 

evidence of error. Because more than 180 days has elapsed between the most recent OWCP 

merit decision, dated January 2, 2013, and the filing of this appeal on April 28, 2014, the Board 

lacks jurisdiction to review the merits of appellant’s claim, pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

reconsideration was not timely filed and failed to present clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On April 7, 2011 appellant, then a 62-year-old transportation security officer, filed a 

Form CA-1, notice of traumatic injury, alleging that, on March 21, 2011, while performing a bag 

check she lifted a bag and pulled her left shoulder and neck. She did not stop work. 

Appellant submitted reports from Dr. Pamela Girres, a Board-certified internist, from 

May 13 to August 19, 2011, who treated appellant for left arm and neck pain which developed 

after a lifting incident at work. Dr. Girres diagnosed cervical sprain and left shoulder strain and 

recommended physical therapy and light duty. 

By letter dated September 9, 2011, OWCP advised appellant that her claim was accepted 

for cervical sprain and left shoulder strain. 

In a February 24, 2012 report, Dr. Girres noted that appellant reached maximum medical 

improvement. She indicated that appellant’s persistent pain and reported functional limitations 

were mainly due to her multiple barriers to recovery rather than the direct effects of the injury. 

Dr. Girres noted multiple attempts were made to activate appellant to assist her with her chronic 

pain but her active participation was limited. She recommended that treatment be concluded and 

she did not recommend work restrictions. 

Appellant submitted a February 10, 2012 report from Dr. Timothy D. Steege, a 

neurosurgeon, who treated appellant for bilateral cervicobrachial symptoms. She reported 

straining her neck in March 2011 while lifting bags as a security screener. Dr. Steege noted an 

August 2011 magnetic resonance imaging (MRI) scan of the cervical spine revealed a large 

herniated disc indenting the spinal cord. He diagnosed large central disc herniation compressing 

the cord dramatically at C4-5 and recommended a C5-6 anterior discectomy and fusion. 

On March 7, 2012 OWCP issued a notice of proposed termination of compensation 

benefits on the grounds that Dr. Girre’s report dated February 24, 2012 established no residuals 

of the work-related employment conditions. 

A February 26, 2012 MRI scan of the cervical spine revealed multilevel degenerative 

changes at C4-5 with central disc protrusion which impinged on the ventral spinal cord. 

Appellant submitted a March 2, 2012 report from Dr. Steege who noted the February 26, 2012 

MRI scan results and recommended a C4-5 anterior discectomy and fusion. In reports dated 

March 14 and May 4, 2012, Dr. Steege noted that appellant had not shown improvement with 

conservative treatment and recommended a C4-5 anterior discectomy and fusion. He noted that 

appellant worked light duty which involved the use of her neck which caused pain and numbness 

in the extremities. Dr. Steege advised that appellant was totally disabled. 

An April 10, 2012 OWCP medical adviser report noted that the C4-5 anterior cervical 

discectomy and fusion was not necessitated by the accepted work injury of March 21, 2011. The 

medical adviser noted that the cord compression was not caused or aggravated by the work 

injury and therefore was not necessitated by the work injury. 
3

 By decision dated May 31, 2012, OWCP terminated all of appellant’s benefits effective 

the same day on the grounds that the weight of the medical evidence established that appellant 

had no continuing disability resulting from her accepted employment injury. 

On June 20, 2012 appellant requested an oral hearing which was held on 

October 16, 2012. She submitted a June 8, 2012 report from Dr. Steege who disagreed with 

OWCP’s medical adviser’s report of April 10, 2012. Dr. Steege indicated that the medical 

adviser relied too heavily on the inadequate records of Dr. Girres who did not provide an 

adequate description of appellant’s symptoms. He opined that the herniated C4-5 disc with cord 

compression occurred on March 21, 2011 and he recommended surgery. In a July 25, 2012 

report, Dr. Steege noted that appellant underwent a work-related C4-5 anterior discectomy and 

fusion for a resection of a large central disc herniation. He noted that she was asymptomatic, 

neurologically intact with the paresthetic sensation improved. Dr. Steege noted that appellant 

could return to unrestricted duties in six weeks. In an August 27, 2012 report, he noted that she 

was still recovering but returned to her preinjury status. Dr. Steege advised that he released 

appellant to full duty without restrictions on August 23, 2012. In a November 8, 2012 report, he 

noted that she was four months post C4-5 anterior discectomy and fusion and had developed 

myofascial pain syndrome and pain in her upper trapezius. Dr. Steege noted that appellant 

remained overweight and had intact strength and sensation. 

In a decision dated January 2, 2013, an OWCP hearing representative affirmed the 

decision dated May 31, 2012. 

In a request dated December 27, 2013 and received by OWCP on January 6, 2014, 

appellant’s counsel requested reconsideration. She asserted that the medical adviser’s opinion 

was not rationalized, was speculative and lacked probative value and should not have been the 

weight of the evidence in determining whether appellant’s C4-5 herniated cervical disc was work 

related and whether benefits should have been terminated. Counsel indicated that Dr. Steege’s 

reports were well rationalized and supported a causal relationship between the work injury and 

the diagnosed C4-5 herniated disc. She asserted that OWCP erroneously applied and interpreted 

a point of law as to whether Dr. Steege’s or the medical adviser’s reports were speculative in 

nature. 

Appellant submitted reports from Dr. Steege dated February 10 to November 8, 2012, a 

February 26, 2012 cervical spine MRI scan report, and the April 11, 2012 report of an OWCP 

medical adviser, all previously of record. She submitted a July 10, 2012 operative report from 

Dr. Steege who performed a C4-5 anterior discectomy and fusion and diagnosed C4-5 central 

disc herniation with myelopathy. In an April 17, 2013 report, Dr. Steege noted last treating 

appellant on November 8, 2012. Appellant reported seeking treatment in 2013 for bilateral 

shoulder problems. Dr. Steege noted that she had a cervical spine MRI scan on March 8, 2013 

which showed resolution of the C4-5 disc problem but an increase in central bulging at C3-4 and 

C5-6 with no impingement. He noted strength testing was compromised by obvious give way 

and lack of effort in several muscle groups and strength and sensation testing were intact. 

Dr. Steege returned appellant to work without restrictions. 

Appellant submitted an April 30, 2013 report from Dr. Margaret Forgette, a Boardcertified physiatrist, who treated her for neck and shoulder pain which began on March 21, 2011 
4

when lifting a bag at work. Dr. Forgette diagnosed chronic neck and left shoulder pain, 

primarily myofascial pain of the left upper trapezius, history of C5-6 disc herniation, status post 

anterior C5-6 decompression and fusion in July 2012, reduced shoulder range of motion 

bilaterally, chronic sleep impairment and mild left ptosis which began in mid-2012. In a 

May 29, 2013 report, she noted that appellant presented with persistent neck pain into the left 

arm. Dr. Forgette noted that appellant underwent an EMG in September 2011 which was 

normal. She diagnosed chronic neck and left shoulder pain, primarily myofascial, history of C5-

6 disc herniation with myelopathy, status post anterior C5-6 decompression and fusion in 

July 2012, chronic sleep impairment and deconditioned status. She recommended an updated 

EMG and physical therapy. 

By decision dated January 24, 2014, OWCP denied appellant’s request for 

reconsideration as it was untimely and did not establish 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.”2

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.3

 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. 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 be manifest on its face that OWCP committed an error.4

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting medical opinion or establish a clear procedural error, but 

must be of sufficient probative value to prima facie shift the weight of the evidence in favor of 

the claimant and raise a substantial question as to the correctness of OWCP’s decision.5

 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607(a). 

4 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

5 Annie L. Billingsley, 50 ECAB 210 (1998). 
5

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.8 The Board makes an independent determination 

as to whether a claimant has submitted clear evidence of error on the part of OWCP.9

ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

application for review. As noted, an application for reconsideration must be received within one 

year of the date of OWCP’s decision for which review is sought.10 As appellant’s request for 

reconsideration was not received by OWCP until January 6, 2014, more than one year after 

issuance of the January 2, 2013 merit decision, it was untimely.11 Consequently, she must 

demonstrate clear evidence of error by OWCP in its January 2, 2013 decision affirming the 

previous termination of benefits. 

The Board finds that appellant has not established clear evidence of error on the part of 

OWCP. In her December 27, 2013 statement, appellant’s counsel indicated that Dr. Steege’s 

reports were well rationalized and supported a causal relationship between the work injury and 

the diagnosed C4-5 herniated disc. She asserted that OWCP erroneously applied and interpreted 

a point of law as to whether Dr. Steege’s or the medical adviser’s reports were speculative. 

Counsel contends that the medical adviser’s opinion was not well rationalized and was couched 

in speculative terms and should not have been relied upon to terminate benefits. While appellant 

addressed her disagreement with OWCP’s termination of her benefits, her general allegations do 

not raise a substantial question as to the correctness of OWCP’s decision. 

In support of her reconsideration request, appellant also submitted evidence. She 

submitted reports from Dr. Steege dated February 10 to November 8, 2012, an MRI scan of the 

cervical spine dated February 26, 2012 and a report from OWCP’s medical adviser dated 

April 11, 2012, all previously of record. OWCP had previously considered this evidence and 

appellant, in submitting these documents, did not explain how this evidence was positive, precise 

and explicit in manifesting on its face that OWCP committed an error in denying her claim for 

compensation. It is not apparent how resubmission of this evidence is sufficient to raise a 

 6 Jimmy L. Day, 48 ECAB 652 (1997). 

7 Id.

8 Id.

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 

10 20 C.F.R. § 10.607(a). 

11 On appeal, appellant’s counsel asserts that the reconsideration request was timely received by OWCP and 

submitted a U.S. Postal Service Track & Confirm e-mail noting when the request was available to be picked up. 

The Board notes that it may not consider new evidence on appeal as its review is limited to the evidence that was in 

the case record that was before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1). 
6

substantial question as to the correctness of OWCP’s decision. Thus, this resubmitted evidence 

is insufficient to show clear evidence of error. 

Appellant submitted a July 10, 2012 operative report from Dr. Steege and an April 17, 

2013 report in which he noted MRI scan findings and returned appellant to work without 

restrictions. She also submitted April 30 and May 29, 2013 reports from Dr. Forgette who 

treated appellant for neck and shoulder pain which appellant reported began on March 21, 2011 

when lifting a bag at work. Dr. Forgette noted findings and diagnoses. However, this evidence 

is insufficient to raise a substantial question as to the correctness of OWCP’s decision. This 

evidence is not so positive, precise and explicit that it manifests on its face that OWCP 

committed an error. The Board notes that clear evidence of error is intended to represent a 

difficult standard. The submission of 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

Thus, appellant has not established clear evidence of error by OWCP in its January 24, 

2014 decision. 

On appeal, appellant reiterated assertions that she made before OWCP indicating that the 

termination of her benefits was improper and that the reports of Dr. Steege were well rationalized 

and supported that appellant had residuals of her work-related injury. However, as noted, the 

Board does not have jurisdiction over the merits of the claim. As explained, appellant has not 

established clear evidence of error by OWCP. 

CONCLUSION 

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

not demonstrate clear evidence of error. 

 12 D.G., 59 ECAB 455 (2008). 
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ORDER 

IT IS HEREBY ORDERED THAT the January 24, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 6, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board