United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.R., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Glynco, GA, Employer 

__________________________________________ 

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Docket No. 13-2095 

Issued: March 27, 2014 

Appearances: Case Submitted on the Record

Kamau K. Mason, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 19, 2013 appellant, through counsel, filed a timely appeal of an April 17, 

2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because 

more than 180 days has elapsed from the most recent merit decision dated July 11, 2011 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. 

ISSUE 

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

reconsideration of the merits as his request was untimely filed and failed to demonstrate clear 

evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On June 13, 2008 appellant, then a 45-year-old marine interdiction agent, filed a 

traumatic injury claim alleging that, on June 2, 2008, while in the performance of duty during 

physical and defensive tactics training, he was injured when two students fell on top of him 

causing pain on the right side of his neck and back. He did not initially stop work. 

In a January 11, 2010 report, Dr. Efrain Salgado, a Board-certified neurologist, noted that 

appellant was seen to determine whether right neck pain that he is having now is related to an 

injury he sustained in June 2008 during the course of activities related to his employment. At 

that time he was practicing defensive tactics. While having his hands tied behind his back, 

appellant was accidentally hit from behind by a fellow trainee causing him to fall forward and hit 

his chin on the ground. This caused hyperextension of his neck. Appellant had right neck pain 

and an isolated shock in his right arm at the time of the impact.” Dr. Salgado noted that 

appellant reported the incident to the employing establishment and was seen in an outpatient 

clinic and was prescribed ibuprofen. Appellant continued with neck pain that gradually 

improved over a couple of months. He also had some neck pain when he overexerted himself or 

after working long hours. Dr. Salgado indicated that a few months ago appellant experienced 

more difficulty with weakness of the right arm as he was doing pushups. He advised that 

appellant noticed when he was riding a boat another sharp pain similar to the one he had at the 

time of the injury and opined that “since that time the right neck pain has been exacerbated.” 

Dr. Salgado noted another incident in the last month in which appellant advised that “he had 

another episode of a shock going into the right arm as he turned his head to the right and 

yawned.” He diagnosed chronic cervical strain and right C6 radiculopathy. Dr. Salgado opined 

that it could have been related to a stretch injury from June 2008 or from riding in a boat several 

months ago. He indicated that a cervical magnetic resonance imaging (MRI) scan revealed 

multilevel degenerative disc disease and foraminal stenosis. 

On February 16, 2010 OWCP accepted the claim for cervical radiculopathy and cervical 

strain. 

In a September 14, 2010 report, Dr. John Gorecki, a Board-certified neurosurgeon, noted: 

“[Appellant] was injured in August 2008 on the job. During a training exercise 

[he] was handcuffed with his hands behind his back wearing a face protective 

helmet when somebody fell into him knocking him to the ground hyperextending 

his neck. [Appellant] experienced severe zingers and electrical shocks in all four 

extremities and transient paralysis. Subsequently [he] was involved in a job that 

requires him to travel in a boat on moderate waves on the ocean resulting in 

repeated mild trauma to the cervical spine. [Appellant] noticed that with cervical 

flexion he developed spontaneous fasciculation of the right biceps and over time 

he developed progressive wasting of the right bicep. [He] has been able to 

diminish his severe sharp neck and right arm pain with cervical stretching and 
3

positions that decompress the exiting neural foramina particularly on the right. 

[Appellant] did not tolerate cervical traction.” 

Dr. Gorecki diagnosed cervical spondylosis and headache syndromes. His office later requested 

approval for anterior cervical discectomy and fusion at C4-5 and C5-6. 

On October 14, 2010 appellant requested that his claim be expanded to include cervical 

herniated discs and headaches. 

In an October 21, 2010 letter, OWCP advised appellant that it had received his request 

for expansion of his claim to include headaches and herniated nucleus pulposus (HNP) of the 

cervical region. It explained that there were no medical records in the claim prior to January 4, 

2010, approximately 1.5 years after the claimed injury of June 2, 2008. OWCP requested that 

appellant provide current medical records and rationalized medical evidence. It also noted that 

he had degenerative conditions in the cervical region which were not accepted. 

On October 22, 2010 appellant noted that he had a prior work injury to his hand on 

May 27, 2008 under claim No. xxxxxx879. He indicated that he was unsure of how the claim 

process worked and was not sure how his injuries were to be treated. Appellant indicated that 

the hand injury required surgery and he used almost 60 days to recover. He noted that he was 

reassigned during this time and later changed jobs in 2009. 

On December 1, 2010 OWCP requested that an OWCP medical adviser address whether 

the requested surgery and the additional conditions were due to the work injury. It noted that 

medical evidence was not received until about one and one half years after the work injury. In a 

report dated December 1, 2010, OWCP’s medical adviser opined that it was “extremely unlikely 

that a radiculopathy (pinched nerve in the neck) would be unnoticed, overlooked or unreported 

for more than one year from the date of injury. This condition does not appear to present a 

plausible causal relationship to the work injury.” 

In a March 24, 2011 report, Dr. Gorecki noted appellant’s history of injury from 

August 2008. He also explained that, subsequently, appellant was engaged in a job that required 

him to travel on a motor boat on moderate waves on the ocean resulting in repeated trauma to the 

cervical spine and with cervical flexion he developed spontaneous fasciculations of the right 

biceps and over time, progressive wasting of the right bicep. Dr. Gorecki opined that there was a 

“clear-cut direct causal relationship between [appellant’s] work-related injury, the abnormal 

findings on the MRI scan and the patient’s symptoms and physical findings.” 

In a July 11, 2011 decision, OWCP denied appellant’s request for surgery and to expand 

his claim to include a degenerative foraminal stenosis at C4-5, C5-6. It found that the medical 

evidence was insufficiently rationalized to support a causal relationship of the medical conditions 

to the incident of June 2, 2008. OWCP noted that Dr. Gorecki referenced an incident that was 

two months after the injury and other factors unrelated to the claim. 

On July 13, 2012 OWCP received appellant’s request for reconsideration. Appellant 

submitted arguments and additional medical evidence. He argued that his claim should be 

reopened and his claim expanded to include all injuries stemming from his 2008 injury to his 

neck. Appellant also argued that Dr. Gorecki’s report was taken out of context and noted that the 
4

additional information regarding riding on boats revealed that he was subjected to additional 

aggravation caused by continuous work after the fact to the original injury. He also indicated 

that spinal injuries could be caused by aggravation from riding in boats. Additionally, appellant 

argued that he timely reported his injury, and the two-month time that it took to be seen by a 

physician should not be negated. He also argued that he was met with resistance when he filed 

his claim. He requested a new claims examiner. 

OWCP received several reports from Dr. Gorecki. They included an August 20, 2010 

report in which he noted that in August 2008 appellant sustained a work-related injury during a 

training exercise. Dr. Gorecki noted that, subsequently, appellant had a job that required him to 

travel on a boat on moderate waves on the ocean resulting in repeated mild trauma to the cervical 

spine. He diagnosed cervical spondylosis and noted that appellant had cervical radiculopathy 

with pain, weakness and sensory loss. Dr. Gorecki recommended anterior cervical discectomy 

and fusion at C4-5 and C5-6. 

Dr. Gorecki further noted in an October 14, 2010 report that appellant had an almost twoyear history of severe neck pain and chronic headaches. He related that appellant had headaches 

and neck pain radiating into the right arm with weakness, especially in the right biceps, deltoid 

and forearm flexors. Dr. Gorecki diagnosed headache and cervical radiculopathy. In a 

February 18, 2011 report, he opined that appellant was injured on the job in June or August 2008 

and he became symptomatic. Dr. Gorecki noted that appellant did not immediately seek surgery 

as his job constantly required that he move and he was afraid to lose his status or promotions if 

he lost time from work. He also noted that appellant was distracted by another work injury 

involving his hand. Dr. Gorecki stated that the symptoms immediately began after the injury and 

were associated with progressive abnormal physical findings, and his symptoms were consistent 

with cervical radiculopathy. He noted that the MRI scan findings revealed a large disc herniation 

consistent with neurological findings. Dr. Gorecki opined that “[t]here is a clear-cut causal 

relationship between the injury in question, the cervical radiculopathy and the pathophysiology 

associated with cervical radiculopathy.” He indicated that the “note from an outside viewer 

provided by workers’ compensation clearly distorts and misrepresents the facts provided by the 

patient. There was no delay between the injury and the development of symptoms. There has 

been a delay between the injury and treatment.” 

OWCP also received a May 13, 2010 report from Dr. Frank McDonald, a neurologist, 

who diagnosed brachial plexitis. In a May 27, 2010 report, Dr. McDonald repeated his diagnosis 

of brachial plexitis. 

By decision dated April 17, 2013, OWCP denied appellant’s request for reconsideration 

for the reason that it was not timely filed and failed to present clear evidence of error. 

 
5

LEGAL PRECEDENT 

Section 8128(a) of FECA2 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.”3

 

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).4

 This section does not mandate 

that it 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’s decision for which review is sought.5

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.6

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 

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.7

 To show clear 

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

 2 Id. at §§ 8101-8193. 

3 Id. at § 8128(a). 

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

5

 20 C.F.R. § 10.607(a). 

6 Id. at § 10.607(b). 

7 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001). 
6

a conflict in the 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. 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.8

ANALYSIS 

 In its April 17, 2013 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It rendered its last merit decision on July 11, 2011. Appellant’s 

letter requesting reconsideration was received on July 13, 2012. As the request was received by 

OWCP more than one year after the July 11, 2011 merit decision, it 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 her application. It reviewed 

the evidence submitted by appellant in support of his application for review, but found that it did 

not show that its 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 OWCP’s July 11, 2011 decision that 

denied appellant’s request for surgery and to expand his claim to include a degenerative cervical 

spine condition that was caused or contributed to by his June 2, 2008 work injury. 

In his request for reconsideration, appellant provided several arguments. However, they 

do not raise a substantial question concerning the correctness of OWCP’s July 11, 2011 decision 

or establish clear evidence of error. Appellant requested that his claim should be reopened and 

his claim expanded to include all injuries stemming from his 2008 injury to his neck. The Board 

notes that this was addressed in the July 11, 2011 decision and he has failed to show how the 

decision was incorrect or in error. Appellant also argued that Dr. Gorecki’ s report was taken out 

of context and argued that riding on boats while performing his duties revealed that he was 

subjected to additional aggravation and injury caused by continuous work after the fact to the 

original injury. The Board notes that this argument does not establish error in the July 11, 2011 

OWCP decision.9

 Appellant also argued that he timely reported his injury, and the two-month 

time that it took to be checked out by a physician should not be negated. He also requested a 

new claims examiner. OWCP’s July 11, 2011 decision denied appellant’s request for surgery 

and claim expansion because the medical evidence was insufficient, not because the claim was 

untimely. The Board notes that these arguments do not raise a substantial question concerning 

the correctness of OWCP’s July 11, 2011 decision or establish clear evidence of error. 

 8 Id.

9

 If appellant is alleging a new occupational injury due to riding in boats, he may file a claim with OWCP. 
7

Appellant also provided medical evidence. In an August 20, 2010 report, Dr. Gorecki 

noted that in August 2008 appellant sustained a work-related injury during a training exercise. 

He noted that, subsequently, appellant was involved in a job that required him to travel on a boat 

on moderate waves on the ocean resulting in repeated mild trauma to the cervical spine. 

Dr. Gorecki diagnosed cervical spondylosis and noted that appellant had cervical radiculopathy 

with pain, weakness and sensory loss. His October 14, 2010 report noted appellant’s nearly twoyear history of symptoms and diagnosed headache and cervical radiculopathy. In his 

February 18, 2011 report, Dr. Gorecki opined that appellant was injured on the job in June or 

August 2008 and became symptomatic. He explained that appellant did not immediately seek 

surgery due to job demands and was distracted by another work injury involving his hand. 

Dr. Gorecki opined that appellant’s symptoms immediately began after the injury and were 

associated with progressive abnormal physical findings and his symptoms were consistent with 

cervical radiculopathy. He noted that an MRI scan showed a large disc herniation. Dr. Gorecki 

opined that there was “clear-cut causal relationship between the injury in question, the cervical 

radiculopathy and the pathophysiology associated with cervical radiculopathy.” He indicated 

that the “note from an outside viewer provided by workers’ comp[ensation] clearly distorts and 

misrepresents the facts provided by the patient. There was no delay between the injury and the 

development of symptoms. There has been a delay between the injury and treatment.” The 

Board notes that, while Dr. Gorecki has provided some support for causal relationship, it is not 

sufficient to establish clear evidence of error. 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.10 

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

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

request to expand his claim. Therefore, the Board finds that appellant has not presented clear 

evidence of error. 

On appeal, appellant’s counsel argues that appellant timely reported his claim. The 

Board notes that the underlying claim has not been denied because of timeliness but because of 

insufficient medical evidence. Counsel also argued that cervical radiculopathy was noted on the 

initial injury, and therefore, all subsequent illnesses stemming from that injury would be covered. 

However, causal relationship is a medical issue that must be addressed by medical evidence.11 

Furthermore, the Board does not have jurisdiction over the merits of the claim, only whether 

appellant’s reconsideration request was timely filed and, if not, whether clear evidence of error 

has been presented. As explained, the reconsideration request was not filed within one year of 

OWCP’s most recent merit decision and appellant’s reconsideration request does not establish 

clear evidence of error for the reasons stated in this decision. 

 10 Annie L. Billingsley, 50 ECAB 210 (1998). 

11 See M.D., 59 ECAB 211 (2007). 
8

CONCLUSION 

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

reconsideration of the merits on the grounds that it was untimely filed and failed to show clear 

evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the April 17, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 27, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board