United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Phoenix, AZ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1893 

Issued: January 7, 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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 20, 2014 appellant filed a timely appeal from the February 27, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over this nonmerit decision. In a November 7, 2011 decision, OWCP terminated 

appellant’s wage-loss compensation and medical benefits effective November 7, 2011. Because 

more than 180 days elapsed between the issuance of the November 7, 2011 decision and the 

 

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

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

501.3(e)-(f). One hundred and eighty days from February 27, 2014, the date of OWCP’s last decision, was 

August 26, 2014. Since using August 27, 2014, the date the appeal was received by the Clerk of the Appellate 

Boards 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 August 20, 2014, rendering the appeal timely filed. See 20 C.F.R. 501.3(f)(1). 

 2

 5 U.S.C. §§ 8101-8193. 
2

filing of this appeal on August 20, 2014, the Board lacks jurisdiction to review the merits of 

OWCP’s termination decision.3

ISSUE 

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

review of the merits of her claim as it was untimely filed and failed to demonstrate clear 

evidence of error. 

FACTUAL HISTORY 

On November 18, 2008 appellant, then a 43-year-old rural carrier, filed an occupational 

disease claim alleging an injury to her arms due to performing her repetitive job duties over time. 

OWCP accepted that appellant sustained bilateral sprains of her right shoulders, upper arms and 

rotator cuffs, bilateral disorder of bursae and tendons in the shoulders (specified and 

unspecified), and chronic impingement, tendinopathy, and subacromial bursitis of her right 

shoulder. 

On December 23, 2006 appellant underwent OWCP-authorized right shoulder surgery, 

including diagnostic arthroscopy and subacromial decompression and micro-debridement of the 

supraspinatus using a Topaz system. 

In an April 18, 2011 report, Dr. Ronald M. Lampert, a Board-certified orthopedic surgeon 

serving as an OWCP referral physician, detailed appellant’s medical history and findings on 

physical examination and determined that she ceased to have residuals of her accepted work 

injuries. Dr. Lampert stated that appellant showed signs of symptom magnification during the 

physical examination and did not have any objective signs of an orthopedic condition. He 

indicated that, but for her psychological problems, appellant could return to her regular work as a 

rural carrier. 

Given the content of the Dr. Lampert’s report, appellant was referred to Dr. Alvin C. 

Burstein, a Board-certified psychiatrist, to clarify whether she had a work-related psychological 

condition. In a September 22, 2011 report, Dr. Burstein determined that appellant did not have 

any psychological condition related to her accepted physical injuries and noted that she engaged 

in malingering conduct which was not related to any work factor. OWCP has not accepted that 

appellant has a work-related psychological condition. 

In an October 5, 2011 letter, OWCP advised appellant that it proposed to terminate her 

wage-loss compensation and medical benefits based on the reports of the second opinion 

physicians, Dr. Lampert and Dr. Burstein. It provided appellant an opportunity to submit 

evidence and argument challenging the proposed termination action. No response was received. 

 

 3 See 20 C.F.R. §§ 501.2(c) and 501.3. In her appeal papers, appellant also suggested that she wished to appeal 

August 4, November 23, 2011 and February 5, 2013 OWCP decisions regarding the approval of attorney’s fees and 

a January 24, 2014 OWCP decision granting her a schedule award for a seven percent permanent impairment of her 

right arm and a seven percent permanent impairment of her left arm. The Board does not have jurisdiction over 

these decisions as appellant has not filed an appeal of these decisions within 180 days of the issuance of these 

decisions. See 20 C.F.R. § 501.3(e). 
3

In a November 7, 2011 decision, OWCP terminated appellant’s wage-loss compensation 

and medical benefits based on the reports of Dr. Lampert and Dr. Burstein. It noted that 

appellant had not submitted any medical evidence showing work-related residuals. 

Appellant filed a request for reconsideration. In a February 5, 2013 decision, OWCP 

denied appellant’s request for review of OWCP’s November 7, 2011 termination decision on the 

merits. 

In a February 4, 2014 letter received on February 10, 2014, appellant again requested 

reconsideration of OWCP’s November 7, 2011 termination decision. She argued that the reports 

of Dr. Lampert and Dr. Burstein did not provide an adequate basis to terminate her compensation 

effective November 7, 2011. Appellant asserted that Dr. Lampert and Dr. Burstein did not 

adequately examine her. She indicated that it was “a lie” that she had been enrolled in a chronic 

pain management program and generally indicated that OWCP treated her in a “horrendous 

fashion” with respect to her claim.4

In a February 27, 2014 decision, OWCP denied appellant’s request for further review of 

the merits of her claim on the grounds that her request was untimely filed and failed to 

demonstrate clear evidence of error. It found that appellant filed an untimely request for 

reconsideration as it was filed on February 10, 2014, more than one year after the November 7, 

2011 termination decision. OWCP determined that the evidence and argument appellant 

submitted in support of her untimely reconsideration request did not show clear evidence of error 

in the November 7, 2011 decision. It indicated that appellant’s own opinion about the probative 

value of the reports of Dr. Lampert and Dr. Burstein was of no probative value. The April 8, 

2010 and October 24, 2012 reports of Dr. Tauber had already been considered and did not tend 

to show that the November 7, 2011 termination decision was improper. 

LEGAL PRECEDENT 

 To be entitled to a merit review of an OWCP 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.5

 

The Board has found that the imposition of the one-year limitation does not constitute an abuse 

of the discretionary authority granted OWCP under section 8128(a) of FECA.6

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, OWCP must 

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

 4

 Shortly prior to filing her February 10, 2014 reconsideration request appellant submitted various records which 

were previously of record and considered by OWCP, including April 8, 2010 and October 24, 2012 reports of 

Dr. Jacob Tauber, an attending Board-certified orthopedic surgeon. In these reports, Dr. Tauber discussed 

appellant’s bilateral shoulder condition, but did not provide an opinion that appellant continued to have work-related 

residuals. 

 5

 20 C.F.R. § 10.607(a). 

 6

 5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 
4

evidence of error.”7

 OWCP regulations and procedure 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.8

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

which was decided by OWCP.9

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

manifest on its face that OWCP committed an error.10 Evidence which does not raise a 

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

clear evidence of error.11 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.12 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.13

ANALYSIS 

 In its February 27, 2014 decision, OWCP properly determined that appellant filed an 

untimely request for reconsideration. Appellant’s reconsideration request was filed on 

February 10, 2014, more than one year after OWCP’s November 7, 2011 termination decision, 

and therefore she must demonstrate clear evidence of error on the part of OWCP in issuing this 

decision. 

Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing 

its November 7, 2011 termination decision. She did not submit the type of positive, precise, and 

explicit evidence which manifests on its face that OWCP committed an error. 

In connection with her untimely reconsideration request, appellant argued that the reports 

of Dr. Lampert and Dr. Burstein did not provide an adequate basis to terminate her wage-loss 

 

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

 8

 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.5a (October 2011). OWCP procedure further provides, “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 a 

mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage 

certificate showing that the claimant had a dependent but the award was not paid at the augmented rate. 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.” 

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

 10 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

 12 See Leona N. Travis, supra note 10. 

 13 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 
5

compensation and medical benefits effective November 7, 2011.14 The Board notes that the 

main issue of this case is medical in nature and would generally be resolved by the submission of 

probative medical evidence. Appellant’s own opinion on the sufficiency of the medical evidence 

would not tend to show that OWCP erred in terminating her compensation. She submitted 

various records which were previously of record and considered by OWCP, including April 8, 

2010 and October 24, 2012 reports of Dr. Tauber, an attending Board-certified orthopedic 

surgeon. However, in these reports, Dr. Tauber did not provide an opinion that appellant 

continued to have work-related residuals and therefore the reports would not show clear evidence 

with respect to OWCP’s termination of her compensation. Appellant indicated that it was “a lie” 

that she had been enrolled in a chronic pain management program and generally indicated that 

OWCP treated her in a “horrendous fashion” with respect to her claim. She did not provide 

support for these assertions or explain how they manifested, on its face, that OWCP committed 

an error in its decision terminating her compensation effective November 7, 2011 which, as 

noted, is primarily a medical matter.15 

For these reasons, the evidence submitted by appellant does not raise a substantial 

question concerning the correctness of OWCP’s November 7, 2011 decision and OWCP 

properly determined that appellant did not show clear evidence of error in that decision. 

CONCLUSION 

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

review of the merits of her claim as it was untimely filed and failed to demonstrate clear 

evidence of error. 

 14 Dr. Lampert was a Board-certified orthopedic surgeon who served as an OWCP referral physician and 

Dr. Burstein was a Board-certified psychiatrist who served as an OWCP referral physician. 

15 On appeal, appellant provided similar arguments that she was “harassed” and “bullied” by OWCP with respect 

to her claim, but she did not indicate how the evidence of record supported the occurrence of these acts or 

adequately explain the relevance of her arguments to OWCP’s November 7, 2011 termination determination. 

Appellant also discussed matters relating to attorney’s fees and schedule award compensation which are not 

currently within the Board’s jurisdiction. 
6

ORDER 

 IT IS HEREBY ORDERED THAT the February 27, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board