United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Baton Rouge, LA, Employer 

__________________________________________ 

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Docket No. 14-1098 

Issued: July 2, 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 April 4, 2014 appellant filed a timely appeal of a March 28, 2014 nonmerit decision 

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

elapsed from the most recent OWCP merit decision dated July 2, 2008, to the filing of this 

appeal, 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 501.3.2

ISSUE 

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

reconsideration was untimely filed and failed to present clear evidence of error. 

                                                             1

 5 U.S.C. §§ 8101-8193. 

2

 Appellant timely requested oral argument pursuant to 20 C.F.R. § 501.5(b) of the Board’s Rules of Procedure. 

20 C.F.R. § 501.5(b). The Board denied the request in a June 16, 2015 order as his arguments could adequately be 

addressed based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 14-1098 

(issued June 16, 2015). 
2

FACTUAL HISTORY 

This case has previously been before the Board. In the most recent appeal, the Board, in 

a June 4, 2009 decision, affirmed a July 2, 2008 OWCP decision, which found that appellant had 

not met his burden of proof to establish disability commencing February 5, 1991 due to his 

accepted January 17, 1988 employment injury.3

 The relevant facts are incorporated herein by 

reference.4

 

Appellant requested reconsideration on November 19, 2013 and submitted new medical 

evidence. In a September 24, 2013 report, Dr. Francis Allen Johnston, an orthopedic surgeon, 

diagnosed chronic low back pain and documented L5-S1 disc herniation with positive discogram 

with concordant production of pain. He opined that “[g]iven the information provided and 

giving the finding of production of concordant pain on two separate occasions that directly 

related to pain generated as a result of his work-related injury in January 1988, it is reasonable to 

assume that the low back pain for which the patient was initially placed on disability benefits is 

tied directly to his work-related injury in 1988. As time has gone on, the patient’s symptoms 

have progressed.” Dr. Johnston noted that appellant “sustained an L5-S1, [herniated nucleus 

pulposus] in 1988 that remained symptomatic and he now has developed spondylosis at the same 

level.” 

A lumbar discography report dated February 22, 2006, from Dr. Yaakov Applbaum, a 

Board-certified diagnostic radiologist, revealed a left paracentral grade five radial tear at L5-S1. 

A September 25, 2012 magnetic resonance imaging (MRI) scan of the cervical and lumbar spine, 

read by Dr. Quoac L. Hoang, a Board-certified diagnostic radiologist, diagnosed mild C4-5 and 

C5-6 degenerative disc disease, and mild C2-3 facet arthrosis, without significant interval 

change; chronic maxiliary and sphencid sinus disease; and mild multilevel degenerative change 

without compromise of the thecal sac or the neural exit foramen seen with mild streaky densities 

in the perinephric fat, likely scarring. 

In a November 14, 2013 report, Dr. Alfred E. Palmieri, a Board-certified orthopedic 

surgeon, noted appellant’s history of injury and treatment and examined him. He opined: 

“[I]n my opinion, based on a reasonable degree of medical probability, this 

patient’s current cervical and lumbosacral symptoms are causally related to the 

work[-]related motor vehicle accident of January 17, 1988. Long term prognosis 

is guarded, as his condition [is] of long duration and appears to be chronic in 

                                                             3

 Docket No. 08-1986 (issued June 4, 2009), order denying petition for recon. (issued September 25, 2009). 

4

 On January 19, 1988 appellant, then a 38-year-old city letter carrier, while he was driving his mail vehicle, was 

struck from behind by another vehicle. OWCP accepted cervical and lumbar strains and appellant received 

intermittent periods of compensation. In a November 19, 1992 decision, the Board affirmed its termination of 

appellant’s compensation benefits effective February 5, 1991. Docket No. 92-1353. Prior to the Board’s June 4, 

2009 decision, id., the Board previously affirmed OWCP decisions finding that appellant had not met his burden of 

proof to establish disability due to his January 17, 1988 work injury. Docket No. 94-2110 (issued June 2, 1997); 

Docket No. 03-698 (issued August 3, 2004), order denying petition for recon. (issued April 5, 2005); Docket No. 

06-515 (issued January 12, 2007). 
3

nature. It is therefore unlikely that his symptoms will improve and may worsen 

with the passage of time.” 

In a March 28, 2014 decision, OWCP denied appellant’s request for reconsideration, 

finding that it was not timely filed within one year of the last merit decision, dated June 4, 2009, 

and failed to present clear evidence of error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA5 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.”6 

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).7 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 

provide that an application for reconsideration must be received within one year of the date of 

OWCP decision for which review is sought.8

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.9

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 

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 

                                                             5

 5 U.S.C. §§ 8101-8193. 

6 Id. at § 8128(a). 

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

8

 20 C.F.R. § 10.607(a). 

9 Id. at § 10.607(b). 
4

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.10 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.11

ANALYSIS 

In its March 28, 2014 decision, OWCP properly determined that appellant failed to file a 

timely application for review. The Board issued a merit decision on June 4, 2009, in which it 

affirmed OWCP’s July 2, 2008 decision, finding that appellant had not met his burden of proof 

to establish disability after February 5, 1991 due to his January 17, 1988 employment injury. 

Appellant’s November 19, 2013 letter requesting reconsideration was submitted more than one 

year after the last merit decision and was, therefore, untimely. 

In accordance with internal guidelines and with Board precedent, OWCP properly 

proceeded to perform a limited review to determine whether appellant’s application for review 

showed clear evidence of error, which would warrant reopening appellant’s case for merit review 

under section 8128(a) of FECA, notwithstanding the untimeliness of his application. It reviewed 

the evidence submitted by him in support of his application for review, but found that it did not 

clearly show that OWCP’s most recent merit decision was in error. 

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

review does not raise a substantial question as to the correctness of OWCP’s most recent merit 

decision and is insufficient to demonstrate clear evidence of error. The critical issue in this case 

is whether appellant has shown clear evidence of error in the underlying merit decision. 

With his November 19, 2013 request for reconsideration, appellant submitted lumbar 

discography reports dated February 22, 2006 and a September 25, 2012 MRI scan of the cervical 

and lumbar spine. The Board finds that this evidence is insufficient to show that OWCP’s denial 

of the claim was erroneous or to raise a substantial question as to the correctness of OWCP’s 

determination that appellant did not meet his burden of proof to establish disability after 

February 5, 1991 due to his January 17, 1988 employment injury. 

Appellant submitted a September 24, 2013 report from Dr. Johnston, who opined that it 

was “reasonable to assume that the low back pain for which the patient was initially placed on 

disability benefits is tied directly to his work-related injury in 1988. As time has gone on, the 

patient’s symptoms have progressed.” Appellant also submitted a November 14, 2013 report 

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

11 Id.
5

from Dr. Palmieri, who noted appellant’s history of injury and opined that appellant’s current 

cervical and lumbosacral symptoms were causally related to the January 17, 1988 work-related 

motor vehicle accident and that it was unlikely that his symptoms would improve. While these 

reports offer some support for causal relationship, the Board has held 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 of a 

miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which 

if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error and would not require a review of a case.12 

The Board finds that this medical evidence is insufficient to shift the weight of the evidence in 

favor of appellant’s claim or raise a substantial question that OWCP erred denying his claim for 

disability due to his January 17, 1988 employment injury. 

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

On appeal, appellant argues that Dr. Palmieri’s report was not adequately addressed by 

OWCP. The Board notes, however, that OWCP reviewed appellant’s request for reconsideration 

dated November 19, 2013, which discussed at length the arguments as to why Dr. Palmieri’s 

report met appellant’s burden of proof. Dr. Palmieri’s report is not sufficient to establish clear 

evidence of error. Appellant also raises arguments on appeal pertaining to the merits of the 

claim. However, as noted, the Board does not have jurisdiction over the merits of the claim. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed and failed to present clear evidence of error. 

                                                             12 D.G., 59 ECAB 455 (2008). 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 28, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 2, 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