United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.K., Appellant 

and 

U.S. POSTAL SERVICE, MANAGEMENT 

SECTION CENTER, Baltimore, MD, Employer 

__________________________________________ 

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Docket No. 13-1928 

Issued: March 6, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 19, 2013 appellant filed a timely appeal from a decision of the Office of 

Workers’ Compensation Programs (OWCP) dated August 7, 2013 denying her untimely request 

for reconsideration. Because more than 180 days elapsed between the last merit decision dated 

July 8, 2011, to the filing of this appeal and pursuant to the Federal Employees’ Compensation 

Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction to 

review the merits of this case. 

ISSUE 

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

the grounds that it was not timely filed and did not demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been on appeal to the Board. On February 7, 2003 the Board 

issued a decision affirming an October 8, 2002 decision of OWCP, which denied appellant’s 

claim for wage-loss compensation for the period March 2 to 12, 2002 due to the lack of 

competent medical evidence supporting her disability claim.2

 In the second appeal on March 11, 

2010, the Board found an unresolved conflict in the medical opinion evidence between 

Dr. Robert W. Macht, an examining Board-certified surgeon and Dr. Arnold T. Berman, an 

OWCP medical adviser and Board-certified orthopedic surgeon, regarding the extent of 

appellant’s left leg impairment.3

 Thus, the Board set aside the March 14 and October 6, 2008 

OWCP decisions affirming the schedule award issued for a one percent impairment initially 

awarded on January 14, 2008 and remanded the case for resolution of the unresolved conflict in 

the medical opinion evidence. The Board, in a third appeal issued on July 8, 2011, affirmed a 

May 14, 2010 OWCP decision which found appellant was not entitled to a schedule award 

greater than one percent impairment of the left lower extremity.4 The Board found the opinion 

of Dr. Barry J. Waldman, an impartial medical specialist and Board-certified orthopedic surgeon, 

was entitled to special weight as his report was sufficiently well rationalized and based upon a 

proper factual background. The Board also affirmed a July 1, 2010 decision denying her request 

for a merit review. The Board found that appellant’s arguments that Dr. Waldman was 

unqualified to serve as an impartial medical adviser was insufficient to warrant reopening her 

case for merit review. Her argument was rejected as she provided no evidence of any 

disciplinary action or a suspended license that would have precluded Dr. Waldman from 

examining her and rendering a decision. By decision dated January 23, 2013, the Board affirmed 

nonmerit decisions dated March 30 and June 18, 2012 denying her request for reconsideration.5

 

The Board found that OWCP properly determined that appellant was not entitled to further 

consideration of the merits of her claim pursuant to any of the three criteria set forth at 20 C.F.R. 

§ 10.606(b)(3). Specifically, the Board found that the December 9, 2010 statement of charges by 

the New York Bureau of Professional Misconduct did not establish that Dr. Waldman had been 

put on probation nor was there any evidence of any disciplinary action by the State of Maryland 

against Dr. Waldman. On June 14, 2013 the Board issued an order denying appellant’s petition 

for reconsideration. The facts and the circumstances of the case up to that point are set forth in 

the Board’s prior decision and are incorporated herein by reference. 

In a letter dated July 20, 2013, appellant requested reconsideration on her claim. She 

argued that the report from Dr. Waldman, the impartial medical adviser, negating any causal 

 2

 Docket No. 03-139 (issued February 7, 2003). On May 9, 2002 appellant, then a 46-year-old mail processor, 

filed a traumatic injury claim alleging that she injured her lower back on January 26, 2002 while bending over to 

pull a full tray of mail. OWCP accepted the claim for a lumbar strain/sprain on September 24, 2002. She resigned 

from the employing establishment effective June 14, 2003. 

3

 Docket 09-1142 (issued March 11, 2010). 

4

 Docket No. 10-1926 (issued July 8, 2011). 

5

 Docket No. 12-1487 (issued January 23, 2013), denying petition for recon., Docket No. 12-1487 (issued 

June 14, 2013). 
3

relationship between her medical condition and the accepted employment injury, was speculative 

and vague. Appellant contended that she continues to have symptoms from her employment 

injury and that “[t]here has never been an unequivocal diagnosis to [her] occupational history or 

medical rationale” concerning her employment disability. Lastly, she related that she has been 

diagnosed with radiculopathy, partial L5 sacralization and piriformis syndrome. 

By decision dated August 7, 2013, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT 

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

claimant must file his or her application for review within one year of the date of that decision.6

 

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.7

OWCP, however, may not deny an application for review solely on the grounds that the 

application was not timely filed. When an application for review is not timely filed, it must 

nevertheless undertake a limited review to determine whether the application establishes clear 

evidence of error.8

 OWCP regulations and procedures provide that OWCP will reopen a 

claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 

20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on 

the part of OWCP.9

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

which was decided by OWCP.10 The evidence must be positive, precise and explicit and must 

manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

clear evidence of error.12 It is not enough merely to show that the evidence could be construed 

 6

 20 C.F.R. § 10.607(a). 

7

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

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

9 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004). 

OWCP procedures further provide 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 have created a conflict in medical opinion requiring further 

development, is not clear evidence of error. Id. at Chapter 2.1602.3c. 

10 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

11 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

12 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 
4

so as to produce a contrary conclusion.13 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.14 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 substantial question as to the correctness of OWCP’s decision.15

OWCP procedures were changed effective August 29, 2011. Section 10.607 of the new 

regulations provide that the date of the reconsideration request for timeliness purposes was 

changed from the date the request was mailed to the date the request was received by OWCP.16

ANALYSIS 

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

application for review. As OWCP did not receive appellant’s July 20, 2013 request for 

reconsideration until July 26, 2013, which was more than one year after the last merit decision 

issued on July 8, 2011, it was untimely. Consequently, she must demonstrate clear evidence of 

error by OWCP in denying her claim for an increased schedule award.17

The Board further finds that appellant’s request for reconsideration fails to demonstrate 

clear evidence of error. The request does not show on its face that OWCP’s denial of her claim 

was erroneous. Appellant has not shown how OWCP committed any error in denying her claim 

for an additional schedule award. In her July 20, 2013 request for reconsideration, she did not 

identify what OWCP decision she was appealing. Appellant argued that Dr. Waldman’s opinion 

was vague and speculative, but submitted no evidence in support of this argument. She stated 

that she was entitled to disability and that there has never been an unequivocal diagnosis made in 

her case. In prior decisions, the Board found that Dr. Waldman was entitled to special weight as 

an impartial medical specialist as his report was sufficiently well rationalized and based upon a 

proper factual background. Appellant has not established that OWCP made an error in prior 

decisions by relying on Dr. Waldman’s opinion. Consequently, OWCP properly denied 

appellant’s reconsideration request as it was untimely filed and failed to establish clear evidence 

of error. 

 13 See Leona N. Travis, supra note 11. 

14 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

15 Leon D. Faidley, Jr., supra note 7. 

16 20 C.F.R. § 10.607. 

17 Id. at § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005). 
5

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration as it 

was untimely filed and failed to establish clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated August 7, 2013 is affirmed. 

Issued: March 6, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board