United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Culver City, CA, Employer 

__________________________________________ 

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Docket No. 14-151 

Issued: March 25, 2014 

Appearances: Case Submitted on the Record

Charles Toliver, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 21, 20131 appellant, through her representative, filed a timely appeal of an 

April 25, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) 

declining to reopen her claim for consideration of the merits as her request was untimely filed 

and did not contain clear evidence of error. Because more than 180 days elapsed from the most 

recent merit decision, of February 5, 2013, to the filing of this appeal the Board lacks jurisdiction 

to review the merits of appellant’s case, pursuant to the Federal Employee’s Compensation Act2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, but has jurisdiction over the nonmerit issue. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. One hundred and eighty 

days from April 25, 2013, the date of OWCP’s decision, was October 22, 2013. Since using October 28, 2013, the 

date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the 

postmark is considered the date of filing. The date of the U.S. Postal Service postmark is October 21, 2013, which 

renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

the grounds that it was untimely filed and failed to establish clear evidence of error. 

On appeal, appellant argued that her request for reconsideration was timely filed as it was 

mailed on January 31, 2013 via certified mail. She submitted a certified mail receipt stamped 

February 6, 2013 to the Board. 

FACTUAL HISTORY 

On April 30, 2007 appellant, then a 38-year-old letter carrier, filed an occupational 

disease claim alleging that she developed back pain and right knee chondromalacia. In support 

of her claim, she submitted a magnetic resonance imaging (MRI) scan dated October 4, 2006 

which demonstrated minimal L5-S1 disc bulge and an unremarkable cervical spine. 

Dr. Fabian A. Proano, a Board-certified anesthesiologist, diagnosed degenerative lumbar spine 

disease with right leg radicular pain. On August 18, September 20 and November 3, 2006 

Dr. Bradley M. Thomas, a Board-certified orthopedic surgeon, stated that he treated appellant for 

right knee traumatic chondromalacia following a dog bite. He stated that she developed 

significant back pain and radicular pain in her right leg likely from limping on the right leg. 

Dr. Thomas opined that appellant had a consequential injury. 

In a letter dated May 15, 2007, OWCP noted that appellant’s right knee chondromalacia 

had been accepted under a separate claim and that the medical evidence submitted was not 

sufficient to establish a causal relationship between her accepted knee condition and her 

diagnosed lumbar condition. It requested additional medical evidence in support of her claim 

and allowed 30 days for a response. Dr. Thomas responded on May 31, 2007 and stated that it 

was possible that appellant developed radicular pain due to prolonged limping causing her to 

lean forward in her lumbar spine which resulted in excess stress in the lumbar spine and leading 

to lumbar disc herniation. He stated that she walked even while on light duty and opined that it 

was “quite probable” that her lumbar disc disease and right leg radicular pain was exacerbated by 

her right knee chondromalacia. 

OWCP denied appellant’s claim on July 23, 2007 finding that the medical evidence did 

not establish a causal relationship between her diagnosed back condition and her employment. 

Appellant requested reconsideration through submission of a form on July 26, 2007. By decision 

dated August 21, 2007, OWCP declined to reopen her claim for consideration of the merits. 

On August 31, 2004 Dr. Thomas stated that appellant had reached maximum medical 

improvement in regard to her right knee injury. He stated that she had returned to modified duty 

eight hours a day walking two hours at a time with 15-minute breaks. Dr. Thomas noted that 

appellant walked without a limp. 

Dr. Thomas completed a report on August 10, 2007 and noted appellant’s history of 

injury including a dog bite on November 21, 2002 which resulted in continued knee pain, 

catching in her knee, inability to straighten her knee and a limp. Appellant also reported back 

pain, numbness and tingling in her lower leg and decreased sensation over the knee and lower 
3

right leg. Dr. Thomas opined that her back pain was directly related to her limp as a result of her 

right knee injury. 

OWCP reviewed appellant’s claim on November 30, 2007 and denied modification of its 

prior decisions. Appellant, through her representative, requested reconsideration on 

August 14, 2008. Dr. Serge Obukhoff, a Board-certified neurosurgeon, completed a report on 

March 21, 2008 and described her employment duties. He found diminished sensation in L5 and 

S1 distributions on the right and reviewed her MRI scan. Dr. Obukhoff diagnosed back pain 

syndrome, degenerative back disease with disc herniation and degeneration, facet joint disease 

and sciatica. He attributed appellant’s back condition to carrying, pushing and pulling as well as 

walking on uneven terrain and steps while in the performance of her job duties. Dr. Obukhoff 

stated that her type of work produced significant stress to the vertebral column and resulted in 

acceleration of the degenerative process. He opined that the work that appellant had been doing 

for years was contributing to degeneration and development of her current symptoms. 

OWCP denied modification of appellant’s prior decisions on November 18, 2008. 

Appellant requested reconsideration on April 16, 2009. Dr. Obukhoff completed reports 

on July 11, August 8, September 5, October 3 and 24, 2008 as well as November 14, 2008. He 

listed appellant’s employment duties. Dr. Obukhoff diagnosed lumbar facet joint disease and 

spondylosis as well as back pain syndrome. He opined that appellant should be managed 

conservatively. On February 7 and 22, 2009 Dr. Obukhoff found significant facet joint disease 

and spondylosis of the lumbar spine. He stated that appellant was experiencing increased 

radiculopathy. Dr. Obukhoff diagnosed back pain syndrome and degenerative spondylosis. In a 

note dated March 27, 2009, he noted that appellant walked with a cane and experienced 

persistent back pain with leg radiation. Dr. Obukhoff recommended surgical treatment. He 

corrected his prior reports regarding appellant’s work duties on April 24, 2009 and described her 

periods of full duty, leave of absence and limited duty from 1997 through August 16, 2006. 

Dr. Obukhoff stated that she was medically released to return to work with restrictions on 

March 14, 2008, but that no appropriate light duty was available at the employing establishment. 

In a separate note of the same date, he diagnosed back pain syndrome due to facet arthropathy. 

Dr. Obukhoff found that appellant was totally disabled and requested authorization for surgery. 

On June 8 and July 10, 2009 he diagnosed severe degenerative lower back disease, back pain 

syndrome at L4-5 and L5-S1 with bilateral facet arthropathy. 

By decision dated August 28, 2009, OWCP reviewed the merits of appellant’s claim, but 

denied modification of its prior decisions. 

Appellant requested reconsideration on August 27, 2010. Dr. Obukhoff submitted a 

report dated April 30, 2010 continuing to diagnose severe degenerative low back disease, back 

pain syndrome at L4-5 and L5-S1 as well as bilateral facet arthropathy. He no longer 

recommended surgery, instead suggesting facet joint Luschka nerve rhizotomy at L4-5 and 

L5-S1. On July 21, 2010 Dr. I. Grant Orlin, a general practitioner, provided appellant’s work 

history. OWCP denied modification of its prior decisions on November 30, 2010 finding that 

she had not submitted the necessary medical opinion evidence to establish a causal relationship 

between her diagnosed condition and her accepted employment duties. 
4

Appellant underwent a lumbar MRI scan on February 11, 2011 which demonstrated a 

broad-based disc protrusion at L5-S1 associated with mild narrowing of the left neural foramina 

with no evidence of spinal canal stenosis. By decision dated August 5, 2011, OWCP denied 

modification of its prior decisions finding that Dr. Orlin’s reports were not based on a proper 

factual background and did not establish that appellant’s current back condition was causally 

related to her employment. 

Appellant requested reconsideration on December 22, 2011. She submitted a report from 

Dr. Orlin describing her employment history dated December 22, 2011. This report contained 

typographical errors indicating that appellant was off work in 2010 rather than 2001. Dr. Orlin 

completed a form report on October 27, 2011 and indicated that she was capable of modified 

work due to her right foot and ankle sprain and strain. He did not offer an opinion discussing the 

cause of appellant’s back pain. By decision dated February 2, 2012, OWCP denied modification 

of her claim noting the factual errors in Dr. Orlin’s December 22, 2011 report. 

Appellant requested reconsideration through a form dated January 28, 2013 and received 

by OWCP on February 6, 2013. In support of her request, she resubmitted Dr. Orlin’s 

December 22, 2011 report and submitted a form report dated July 12, 2011 from Dr. Orlin 

diagnosing severe lumbar degenerative disc disease with facet arthropathy at L4-5 and L5-S1 

with right radiculopathy as well as lumbosacral strain. Dr. Orlin provided work restrictions. 

In a decision dated April 25, 2013, OWCP found that appellant’s request for 

reconsideration was not timely and did not establish clear evidence of error on the part of 

OWCP.3

LEGAL PRECEDENT 

Under section 8128(a) of FECA4 OWCP has the discretion to reopen a case for review on 

the merits, on its own motion or on application by the claimant. It must exercise this discretion in 

accordance with section 10.607 of the implementing federal regulations. Section 10.607 provides 

that “[a]n application for reconsideration must be sent within one year of the date of OWCP’s 

decision for which review is sought.”5

 In Leon D. Faidley, Jr.,6 the Board held that the imposition 

of the one-year time limitation for filing an application for review was not an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA. The one-year time 

limitation period set forth in 20 C.F.R. § 10.607 does not restrict OWCP from performing a limited 

review of any evidence submitted by a claimant with an untimely application for reconsideration. 

 3

 Following the appeal to the Board on October 21, 2013, OWCP issued a decision dated November 5, 2013 

denying appellant’s claim as untimely and finding that she did not establish clear evidence of error on the part of 

OWCP. The Board and OWCP may not simultaneously have jurisdiction over the same case. Because OWCP must 

review its prior decisions in order to determine whether appellant submitted clear evidence of error, it may not issue 

a decision regarding the same issue on appeal before the Board. OWCP therefore did not have the authority to issue 

its November 5, 2013 decision. Arlonia B. Taylor, 44 ECAB 591, 597 (1993). 

4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.607. 

6

 41 ECAB 104, 111 (1989). 
5

OWCP is required to perform a limited review of the evidence submitted with an untimely 

application for review to determine whether a claimant has submitted clear evidence of error on the 

part of OWCP thereby requiring merit review of the claimant’s case. 

Thus, if the request for reconsideration is made after more than one year has elapsed from 

the issuance of the decision, the claimant may only obtain a merit review if the application for 

review demonstrates “clear evidence of error” on the part of OWCP.7

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

which was decided by OWCP.8

 The evidence must be positive, precise and explicit and must be 

manifest on its face that OWCP committed an error.9

 Evidence which does not raise a 

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

clear evidence of error.10 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.11 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.12 To show clear 

evidence of error, the evidence submitted 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 prima facie shift the weight of the evidence in favor of the claimant and raise a 

fundamental question as to the correctness of OWCP’s decision.13 The Board makes an 

independent determination of whether a claimant has submitted 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.14

ANALYSIS 

The only decision before the Board on this appeal is that of OWCP dated April 25, 2013 in 

which it declined to reopen appellant’s case on the merits because the request was not timely filed, 

and did not show clear evidence of error. Since more than 180 days elapsed from the date of 

issuance of OWCP’s February 2, 2012 merit decision to the date of the filing of appellant’s appeal, 

on October 21, 2013, the Board lacks jurisdiction to review that decision.15

 7 Supra note 5; Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

8 See Dean D. Beets, 43 ECAB 1153 (1992). 

9 See Leona N. Travis, 43 ECAB 227 (1991). 

10 See Jesus D. Sanchez, 41 ECAB 964 (1990). 

11 See supra note 9. 

12 See Nelson T. Thompson, 43 ECAB 919 (1992). 

13 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 

14 Gregory Griffin, 41 ECAB 458, 466 (1990). 

15 See 20 C.F.R. § 501.3(e). 
6

The Board finds that the September 16, 2013 refusal of OWCP to reopen appellant’s claim 

for further consideration on the merits of the claim under 5 U.S.C. § 8128(a) on the basis that her 

request for reconsideration was not timely filed within the one-year time limitation period set forth 

in 20 C.F.R. § 10.607 and did not show clear evidence of error was proper and did not constitute 

abuse of discretion. 

Appellant requested reconsideration of the February 2, 2012 merit decision through a 

form received by OWCP on February 6, 2012 and dated January 28, 2013. As the request for 

reconsideration was not received by OWCP by Monday, February 4, 2013 within one calendar 

year of the February 2, 2012 decision with allowances for the weekend of February 2 and 3, 

2013, the request was not timely received by OWCP within the one-year time limitation period 

set forth in 20 C.F.R. § 10.607. 

The Board notes that on appeal, appellant submitted her certified mail receipt which 

indicated that her request for reconsideration was mailed on Thursday, January 31, 2013 and 

received by OWCP on February 6, 2013. As OWCP did not receive the request for reconsideration 

by Monday, February 4, 2013, instead receiving it on February 6, 2013, the request for 

reconsideration was untimely under OWCP’s regulations. 

The Board further finds that the evidence submitted by appellant in support of her untimely 

request for reconsideration did not establish clear evidence of error on the part of OWCP. In 

support of her request, appellant submitted Dr. Orlin’s December 22, 2011 report attempting to 

address deficits in her employment history. She also submitted a form report dated July 12, 2011 

from him diagnosing severe lumbar degenerative disc disease with facet arthropathy at L4-5 and 

L5-S1 with right radiculopathy as well as lumbosacral strain. Dr. Orlin provided work 

restrictions. 

The Board finds that these reports are not sufficiently detailed and well reasoned to 

sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a 

fundamental question as to the correctness of OWCP’s decision. The medical reports submitted by 

appellant are not based on an accurate factual background, do not provide detailed physical 

findings or well-reasoned medical rationale explaining how and why her degenerative back 

condition was caused or aggravated by her specific employment duties. As appellant has not 

provided evidence establishing clear evidence of error on the part of OWCP, the Board finds that 

OWCP properly declined to reopen her claim for consideration of the merits. 

CONCLUSION 

The Board finds that appellant’s February 6, 2012 request for reconsideration was not 

timely filed within the one-year time limitation period and did not contain clear evidence of error 

on the part of OWCP. 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 25, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 25, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board