United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

DEPARTMENT OF HOUSING & URBAN 

DEVELOPMENT, Annandale, VA, Employer 

__________________________________________ 

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Docket No. 15-0989 

Issued: July 29, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 30, 2015 appellant filed a timely appeal from a January 21, 2015 nonmerit 

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

elapsed from the last merit decision of October 24, 2011 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 claim.2

 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the January 21, 2015 decision. Since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 

57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, 

pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2). 
2

ISSUE 

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

review of the merits because her request was not timely filed and did not establish clear evidence 

of error. 

FACTUAL HISTORY 

On February 8, 2010 appellant, then a 50-year-old enforcement assistant, filed an 

occupational disease claim alleging that she developed right hand and wrist pain as a result of 

repetitive clerical work, including moving boxes and employing cabinets of legal folders. She 

first became aware of her condition and realized it resulted from her employment on 

May 29, 2009. The record indicates that appellant intermittently used sick and annual leave, but 

did not stop work. 

Appellant received treatment from Dr. Terence B. Thompson, a Board-certified family 

practitioner. In a handwritten February 26, 2010 prescription note, Dr. Thompson related her 

complaints of a hand injury and lower back pain and noted that she was off work from 

February 22 to April 19, 2010. In a June 18, 2010 work status note, he requested that appellant 

remain off work until August 22, 2010. 

By letter dated April 2, 2010, OWCP advised appellant that the evidence submitted was 

insufficient to establish her claim. It requested a detailed description of the employment-related 

activities which she believed caused her condition and a medical report from a physician with 

examination results, a medical diagnosis, and an opinion based on medical rationale on the cause 

of her medical condition. 

In a decision dated May 7, 2010, OWCP denied appellant’s claim. It found that the 

factual evidence was not sufficient to identify the specific employment factors that she believed 

caused her alleged condition and that the medical evidence failed to demonstrate that she 

sustained a diagnosed condition as a result of factors of her employment. 

Appellant requested reconsideration, received by OWCP on June 29, 2010. In a May 10, 

2010 statement, appellant reported that she began to work for the employing establishment on 

September 5, 2007 doing physically exhausting labor such as emptying cabinets of legal folders, 

packing folders, loading boxes of folders onto the carrier, and unloading the boxes to another 

part of the office. She described how from 2007 to 2010 she organized boxes and folders, 

created an inventory list of over 700 close folders and uniform system of files, and worked as an 

assistant. Appellant stated that her daily duties caused her physical pain and exhaustion. She 

related that a couple of months prior she experienced dizziness and had no coordination between 

her head, neck, and upper and lower extremities. Appellant also noted that she often experienced 

muscle spasms in her arm and hand when walking, sitting, or leaning. 

Appellant submitted medical reports from 2007 and 2008. In an October 26, 2007 note, 

Dr. Shaliman Eivazzadeh, a Board-certified family practitioner, stated that appellant was 

examined for severe myalgia of both hands because of overuse. On April 7, 2008 appellant was 

examined in the emergency room by Dr. Mai Lai, Board-certified in emergency medicine, for 
3

complaints of back pain after she did some gardening. Dr. Lai indicated that she could return to 

work on April 9, 2008. 

Appellant also provided various diagnostic reports. In a March 4, 2010 diagnostic report, 

Dr. Satoshi Tateshima, a Board-certified diagnostic radiologist, stated that appellant had a 

dilation of the distal left supraclinoid internal carotid artery and that a magnetic resonance 

imaging (MRI) scan revealed evidence of hemorrhage or other pathology. In a May 21, 2010 

MRI scan of the lumbar spine, Dr. Brian F. King, a Board-certified diagnostic radiologist, noted 

appellant’s complaints of chronic low back pain from a lifting injury. He observed broad-based 

posterior 2 to 3 millimeter (mm) annular disc bulge resulting in mild late recess stenosis, slight 

compression of the L5 nerve roots, and mild L4 neural foraminal stenosis. In a June 10, 2010 

electromyography and nerve conduction study examination, Dr. A. Elizabeth Bloze, Boardcertified in physical medicine and rehabilitation, diagnosed right carpal tunnel syndrome with 

denervation with no evidence of right Guyon’s, cubital or radial tunnel syndrome. 

In a May 26, 2010 report, Dr. Judy F. Lane, a chiropractor, examined appellant for 

evaluation and treatment related to musculoskeletal problems that she had experienced for the 

past three to four months. She noted that appellant was extremely disturbed about her work 

environment and overwhelmed by her workload. Dr. Lane diagnosed lumbosacral somatic 

dysfunction, radicular neuritis, cervical somatic dysfunction, and upper extremity somatic 

dysfunction. 

On June 3, 2010 appellant was examined by Dr. Bloze, who related appellant’s 

complaints of pain in the low back radiating down both legs and pain in her right hand and wrist. 

Dr. Bloze noted that appellant had a history of intermittent back pain since 2008 and that a recent 

MRI scan of the lumbar spine revealed a two mm disc protrusion at L4-5. She diagnosed 

possible right carpal tunnel syndrome. Dr. Bloze reported that appellant believed that her low 

back pain was a result of lifting boxes at work. 

In a June 4, 2010 prescription note, Dr. Richard E. Nussbaum, a Board-certified 

orthopedic surgeon, stated that appellant was seen in the office on May 26, 2010 for lumbar 

spine complaints. He noted a diagnosis of lumbar spine disc displacement. 

Appellant was also examined by Dr. Paul Simic, a Board-certified orthopedic surgeon, 

who noted in a June 9, 2010 report that she complained of right hand pain and numbness for the 

past three months. Upon examination, Dr. Simic observed mild tenderness to palpation volarly 

and intact extensor mechanisms and flexor digitorum superficials. Sensation was intact to light 

touch and motor examination was 5/5 throughout. Dr. Simic diagnosed right hand carpal tunnel 

syndrome. 

On July 26, 2010 Lydia Morales, one of appellant’s supervisors, responded and provided 

comments about appellant’s May 10, 2010 statement. She stated that appellant began to work as 

an enforcement assistant in September 2007. Ms. Morales noted that, almost immediately after 

appellant began to work, she began wearing a wrist bandage and stated that it was for support 

and comfort and was not related to her employment. She reported that the employing 

establishment could not corroborate or confirm several incidents where appellant described that 

she felt pain because she failed to report it to her supervisor. Ms. Morales stated that appellant 
4

was informed to always request help when a task involved moving or carrying heavy boxes or 

similar material. 

In a handwritten August 16, 2010 statement, appellant related that she needed surgery to 

correct carpal tunnel syndrome induced by adverse work conditions. She requested information 

on the status of her case in order to determine how to pay for the surgery. 

By decision dated September 16, 2010, OWCP affirmed the May 7, 2010 denial decision 

with modification. It accepted that appellant’s duties included lifting and moving boxes, 

assembling materials for use in a training session, and removing and replacing old file folder 

labels and that she was diagnosed with right carpal tunnel syndrome. OWCP denied her claim 

finding insufficient medical evidence to establish that her right carpal tunnel syndrome was 

causally related to factors of her employment. 

Appellant submitted reconsideration requests which were received by OWCP on 

February 28 and July 26, 2011. She provided another statement describing in detail her various 

work duties at the employing establishment and noted her disagreements with her supervisors’ 

July 26, 2010 statement. 

In November 4, 2010 and July 8, 2011 reports, Dr. Simon Lavi, an orthopedic surgeon, 

reviewed appellant’s description of her job duties and the medical treatment she received for her 

low back and bilateral wrist pain. He conducted an examination and diagnosed lumbar 

discopathy and bilateral carpal tunnel syndrome. Dr. Lavi opined that appellant’s complaints 

were related to the continuous activities performed while working at the employing 

establishment. 

By decisions dated May 26 and October 24, 2011, OWCP denied modification of 

OWCP’s denial decisions. 

Appellant again requested reconsideration, received by OWCP on October 29, 2014. 

In a February 21, 2014 neurosurgical consultation report, Dr. Fredric L. Edelman, a 

Board-certified neurological surgeon, noted appellant’s complaints of dizziness as a result of 

harassment at work from 2007 to 2008. He reviewed various medical records and conducted an 

examination. Dr. Edelman observed full range of motion of the neck and no tenderness. He also 

reported that eye movements, facial sensation, and cranial nerves were normal. Dr. Edelman 

diagnosed dizziness, anxiety and depression, and incidental left supraclinoid carotid dilation. 

Appellant was also examined by Sheelah Muhammad, a physician assistant, who in a 

March 28, 2014 report noted that appellant was under the care of a neurologist and psychiatrist. 

Ms. Muhammad reviewed appellant’s history and conducted an examination. She observed no 

scoliosis or deformities in appellant’s back and full range of motion of the extremities. 

Ms. Muhammad diagnosed benign essential hypertension, migraine without aura, dizziness and 

giddiness, and unspecified hyperlipidemia. 

Appellant provided several diagnostic reports. In a May 23, 2014 x-ray of the right 

ankle, Dr. Severiano Valenzuela, a Board-certified diagnostic radiologist, noted that no fracture 

was seen and that alignment and joint space were well preserved. In an April 17, 2014 MRI scan 
5

of the brain, Dr. Bonnie Freitas, a Board-certified diagnostic radiologist, who specializes in 

neuroradiology, observed stable fusiform dilation of the left supraclinoid segment with extension 

of fusiform dilation into an aneurysm at the origin of the left posterior communicating artery. 

In reports dated May 28 and June 11, 2014, Dr. Peter A. Lucero, a family practitioner, 

examined appellant for complaints of moderate to severe pain to the right wrist and neck pain 

radiating to the upper extremity. He related that she was diagnosed with carpal tunnel syndrome 

seven years ago and now experienced depression and anxiety due to the constant pain. 

Dr. Lucero stated that appellant had seen a lot of specialists for the past year for her multiple 

problems, primarily headaches and dizziness. He noted diagnoses of hyperlipidemia, migraine 

without aura, major depressive affective disorder, and cerebral aneurysm. Dr. Lucero further 

reported that about one week ago appellant fell down and injured her right ankle. Upon 

examination, he observed right wrist tenderness and weakness to grip. Tinel’s sign was positive 

and straight leg raise testing was restricted due to pain. Dr. Lucero diagnosed bilateral carpal 

tunnel syndrome, chronic neck and low back pain, and multilevel disc bulges. He recommended 

that appellant follow up at the office in two months. 

Appellant also received medical treatment from Dr. Jacob E. Tauber, a Board-certified 

orthopedic surgeon. In reports dated September 24 and October 4, 2014, Dr. Tauber noted that 

she began to work for the employing establishment in September 2007 as an enforcement 

assistant and that he reviewed a detailed description of her employment activities. He related 

that appellant’s job duties included assisting financial analysts, cleaning offices, typing, 

operating a computer, and sending and mailing reports and that her physical requirements 

consisted of prolonged sitting, repetitive movement of the upper extremities, lower extremities, 

repetitive gripping, grasping, and fine finger manipulation. Dr. Tauber reviewed her medical 

history and reported her complaints of constant headaches, constant neck pain radiating into her 

upper back and shoulders, and constant lower back pain. He reported that appellant was 

documented to have bilateral carpal tunnel syndrome, narrowing of the central canal and a disc 

bulge, and disc protrusion at L4/5 and stenosis at L4/5. 

Dr. Tauber opined that all of appellant’s pathology was industrial in that she carried out 

extensive repetitive motion duties. He stated that she carried out strenuous duties such as 

repetitive lifting, carrying, gripping, and grasping in the course of her employment. Dr. Tauber 

reported that these strenuous duties not only resulted in appellant’s carpal tunnel syndrome, but 

contributed to and likely caused pathology in her cervical and lumbar spine. He noted that 

appellant had provided him with extensive records which documented the nature of her strenuous 

and repetitive duties including having to reach up and pull folders and deal with as many as 700 

legal folders. Dr. Tauber concluded that she had bilateral carpal tunnel syndrome and cervical 

radiculopathy with cervical stenosis and a disc protrusion as a result of her repetitive work 

duties. 

By decision dated January 21, 2015, OWCP denied appellant’s request for 

reconsideration because it was untimely filed and failed to establish clear evidence of error. 
6

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, 

OWCP regulations provide that an application for reconsideration must be received by OWCP 

within one year of the date of OWCP decision for which review is sought.3 The Board has found 

that the imposition of the one-year time limitation does not constitute an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA.4

 The one-year period 

begins on the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board.5

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. When an application for review is untimely filed, it must nonetheless 

undertake a limited review of the evidence previously of record to determine whether the new 

evidence demonstrates clear evidence of error.6 In this regard, OWCP will limit its focus to a 

review of how the newly submitted evidence bears on the prior evidence of record.7

 The Board 

makes an independent determination of whether a claimant has submitted clear evidence of error 

on the part of OWCP such that it improperly denied merit review in the face of such evidence.8

To establish 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.9 Evidence that 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 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 shift the weight of the evidence in favor of the claimant and raise a 

substantial question as to the correctness of OWCP’s decision.12 

 3 Id. at § 10.607. 

4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

5 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

7 Nelson T. Thompson, 43 ECAB 919 (1992). 

8 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993). 

9

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

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

11 Id. 

12 Annie L. Billingsley, 50 ECAB 210 (1998). 
7

ANALYSIS 

The only decision before the Board is the January 21, 2015 nonmerit decision, in which 

OWCP denied appellant’s request for reconsideration because her request was untimely filed and 

failed to establish clear evidence of error. On October 24, 2011 OWCP denied modification of 

the May 26, 2011 decision denying appellant’s occupational disease claim. In a letter received 

by OWCP on October 29, 2014, appellant requested reconsideration. The Board finds that more 

than one year elapsed from the most recent OWCP merit decision dated October 24, 2011, to 

appellant’s request for reconsideration received on October 29, 2014.13 Thus, appellant’s request 

for reconsideration is found to be untimely filed. 

The Board also finds that appellant failed to establish clear evidence of error. Along with 

her request for reconsideration appellant provided various medical reports not previously 

reviewed. In reports dated September 24 and October 4, 2014, Dr. Tauber reviewed her history 

and noted that her job duties included assisting financial analysts, cleaning offices, typing, 

operating a computer, and sending and mailing reports and that her physical requirements 

consisted of prolonged sitting, repetitive movement of the upper extremities, lower extremities, 

repetitive gripping, grasping, and fine finger manipulation. He reported that appellant was 

documented to have bilateral carpal tunnel syndrome, narrowing of the central canal and a disc 

bulge, and disc protrusion at L4/5 and stenosis at L4/5. Dr. Tauber stated that she carried out 

strenuous duties such as repetitive lifting, carrying, gripping, and grasping in the course of her 

employment. He opined that these strenuous duties not only resulted in appellant’s carpal tunnel 

syndrome, but contributed to and likely caused pathology in her cervical and lumbar spine. 

Dr. Tauber concluded that she had bilateral carpal tunnel syndrome and cervical radiculopathy 

with cervical stenosis and a disc protrusion as a result of her repetitive work duties. 

The Board notes that while Dr. Tauber’s opinion is generally supportive of a causal 

relationship between appellant’s bilateral carpal tunnel syndrome and lumbar conditions and her 

employment duties as an enforcement assistant, it does not establish clear error on the part of 

OWCP in denying her occupational disease claim. The report fails to show that OWCP 

committed an error in denying the claim nor does it raise a substantial question as to the 

correctness of OWCP’s decision. 

The additional medical reports by Drs. Lucero, Freitas, Thompson, Edelman, and 

Valenzuela are likewise insufficient to shift the weight of evidence in favor of appellant’s claim. 

While the medical reports contain findings on examination and provide a medical diagnosis of 

her condition, they do not raise a substantial question that OWCP erred by denying her 

occupational disease claim. Therefore, the Board finds that appellant has not presented clear 

evidence of error on the part of OWCP. 

OWCP 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 shows that OWCP 

made an error (for example, proof that a schedule award was miscalculated). Evidence such as a 

detailed, well-rationalized medical report which, if submitted before the denial was issued would 

 13 Pursuant to OWCP regulations, an application for reconsideration must be received within one year of the date 

of OWCP’s decision for which review is sought. 20 C.F.R. § 10.607(a). 
8

have created a conflict in medical opinion requiring further development is not clear evidence of 

error.

14 In this case, the medical reports appellant submitted in support of her untimely request 

for reconsideration are insufficient to shift the weight of evidence in favor of her claim or raise a 

substantial question that OWCP erred by denying her occupational disease claim. None of the 

evidence submitted manifests on its face that OWCP committed an error in denying her claim. 

Therefore, the Board finds that appellant has not presented clear evidence of error on the part of 

OWCP. 

On appeal, appellant reviewed the evidence she had submitted and alleged that the 

evidence was sufficient to establish her occupational disease claim. As previously explained, 

however, the Board does not have jurisdiction over the merits of the occupational disease issue 

of the claim. It can only make a determination regarding the January 21, 2015 nonmerit decision 

of OWCP. Accordingly, the Board finds that OWCP properly declined to reopen appellant’s 

claim because her request for reconsideration was untimely 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. 

CONCLUSION 

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

reconsideration of the merits because it was untimely filed and failed to show clear evidence of 

error. 

 14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5(a) (October 2011). 
9

ORDER 

IT IS HEREBY ORDERED THAT the January 21, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 29, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board