United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1391 

Issued: November 17, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 June 2, 2014 appellant filed a timely appeal of an April 30, 2014 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP) denying her request for 

reconsideration without conducting a merit review. Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 and because more than 180 

days elapsed from November 15, 2012, the date of the most recent OWCP merit decision, to 

June 2, 2014, when this appeal was filed, the Board lacks jurisdiction to review the merits of the 

case. 

ISSUE 

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

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

demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 18, 2011 appellant, then a 44-year-old city carrier, injured her left foot when she 

stepped into a hole and fell. She indicated that she felt pain in her left leg and ankle. Appellant 

stopped work on July 19, 2011. OWCP subsequently accepted the claim for cervical spondylosis 

without myelopathy, contusion of left knee and other internal derangement of the left knee. 

An August 8, 2011 magnetic resonance image (MRI) scan of the left knee was 

unremarkable while an August 9, 2011 cervical spine MRI scan showed herniation at C2-3 and 

C3-4, along with multilevel degenerative disc disease. Appellant’s physician, Dr. Arnold 

Ravdel, an orthopedic surgeon, opined that appellant was totally disabled. 

OWCP continued to develop the claim and, by letter dated March 6, 2012, referred 

appellant for a second opinion, along with a statement of accepted facts, a set of questions and 

the medical record to Dr. Zvi Kalisky, Board-certified in physical medicine and rehabilitation. 

In an April 2, 2012 report, Dr. Kalisky stated that appellant displayed pain behavior and there 

was a disproportion between subjective complaints and objective findings. He opined that she 

could return to work for eight hours a day with restrictions in place for three months. 

In a May 29, 2012 report, Dr. Ravdel noted appellant’s history of injury and treatment 

and diagnosed lumbago, internal derangement of the left knee, chondromalacia patella and left 

knee pain. He indicated that her status was unchanged and recommended left knee arthroscopy. 

On June 6, 2012 OWCP referred appellant along with a statement of accepted facts and 

the medical record to Dr. Grant McKeever, a Board-certified orthopedic surgeon, for an impartial 

medical evaluation to resolve the conflict in opinion between Drs. Kalisky and Ravdel regarding 

the resolution of appellant’s accepted condition and work restrictions. 

In a July 3, 2012 report, Dr. Ravdel stated that he disagreed with Dr. Kalisky. He 

indicated that Dr. Kalisky was not an orthopedic surgeon and an opinion from an orthopedic 

surgeon who practiced knee surgery would be needed. 

Dr. McKeever noted appellant’s history of injury and treatment and examined her. In his 

July 25, 2012 report, he noted that examination findings of the lower extremities were normal. 

Dr. McKeever determined that appellant had a normal examination of the spine and lower 

extremities. He noted that, with standing, her knees were fully extended, there was no effusion 

and no crepitus. Dr. McKeever opined that no further treatment was necessary. 

On September 4, 2012 OWCP issued a notice of proposed termination of compensation. 

It proposed to terminate appellant’s compensation on the basis that the weight of the medical 

evidence, as represented by the report of Dr. McKeever, established that the residuals of the 

work injury had ceased. 

Dr. Ravdel, in an October 15, 2012 disability certificate, indicated that appellant was 

incapacitated to work until further notice pending surgery to the left knee. 

 In a November 15, 2012 decision, OWCP terminated appellant’s compensation benefits 

effective November 17, 2013. It found that the weight of medical evidence rested with 
3

Dr. McKeever, the impartial medical examiner, which supported that appellant no longer had 

residuals of the accepted work-related conditions. 

Appellant continued to submit medical evidence. OWCP received another copy of the 

August 9, 2011 cervical spine MRI scan and an October 4, 2012 left knee MRI scan that was 

normal. It also received a September 11, 2012 functional capacity evaluation and an 

April 10, 2013 laboratory report. Also submitted were numerous treatment and prescription 

notes from Dr. Ravdel. In a November 19, 2012 report, Dr. Ravdel repeated the history of injury 

and his request for treatment. He indicated that arthroscopy was requested and constantly 

denied. Dr. Ravdel argued that appellant still had clinical problems and surgery was needed. He 

continued to treat her and submit reports in which he requested the surgery. 

On March 7, 2014 appellant requested reconsideration. She submitted treatment notes 

from Dr. James Key, a Board-certified orthopedic surgeon, dating from January 30, 2013 to 

February 5, 2014, in which he advised her to continue physical therapy, requested an 

electromyogram of the upper extremities and prescribed epidural steroid injections. Dr. Key also 

ordered a cervical discogram. He diagnosed cervical spondylosis, contusion of the left knee and 

internal derangement of the left knee. In a November 1, 2013 report, Dr. Key advised that he 

had been treating appellant for several months, noting that she was injured on the job. He 

explained that her condition had not improved substantially since her initial injury. Dr. Key 

noted that appellant was not working for more than 12 months and opined that it was not likely 

that she would be able to return to work within the next 12 months. He opined that she was 

temporarily totally disabled. On February 5, 2014 report Dr. Key advised that for some 

“inexplicable reason” appellant’s case was not open. He indicated that he wished to upgrade her 

condition to internal disc displacement and upgrade her contusion of the left knee to possible 

internal derangement of the left knee. 

A February 21, 2013 cervical spine MRI scan read by Dr. Stephen Ladner, a Boardcertified diagnostic radiologist, revealed multiple cervical disc bulges with small disc herniations 

at C2-3, C3-4, C4-5 and C5-6. OWCP also received a June 14, 2013 nerve conduction study, as 

well as several disability certificates, progress notes, discharge instructions and prescriptions 

dating from April 25, 2013 to January 8, 2014. They indicated that appellant was totally 

incapacitated. 

On October 16, 2013 OWCP also received an undated statement from appellant. 

Appellant explained that she was unable to work due to her original injury and needed surgery. 

She explained that she was desperate to get pain relief. Appellant also described her original 

injury. She provided a notice of recurrence and filled in that she was off since the injury. 

In an April 30, 2014 decision, OWCP denied appellant’s request for reconsideration 

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

 
4

LEGAL PRECEDENT 

Section 8128(a) of FECA 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.”2

 

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).3

 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 regulation provide 

that an application for reconsideration must be sent within one year of the date of OWCP 

decision for which review is sought.4

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.5

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.6

 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 prima facie shift the weight of the evidence in favor of the claimant and raise 

 2 Id. at § 8128(a). 

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

4

 20 C.F.R. § 10.607(a). 

5 Id. at § 10.607(b). 

6 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001). 
5

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 it abused its discretion in denying merit review in the face of such 

evidence.7

ANALYSIS 

 In its April 30, 2014 decision, OWCP properly determined that appellant had not filed a 

timely reconsideration request. It rendered its last merit decision on November 15, 2012. 

Appellant requested reconsideration on March 7, 2014, more than one year after the merit 

decision. Thus, the request was untimely. 

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

review does not raise a substantial question as to the correctness of OWCP’s decision and is 

insufficient to demonstrate clear evidence of error. OWCP, on November 15, 2012, terminated 

appellant’s compensation benefits finding that the opinion of Dr. McKeever, the impartial 

specialist, established that injury-related residuals of her accepted conditions had ceased. 

On reconsideration, appellant provided an undated statement which was received on 

October 16, 2013. She described her original injury, explained that she was unable to work due 

to this injury and needed surgery. 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 

notes that the underlying issue is medical in nature and, therefore, appellant statement would not 

be relevant to the issue. 

Appellant also submitted numerous medical records. In a November 19, 2012 report, 

Dr. Ravdel repeated the history of injury and his request for treatment. He indicated that 

arthroscopy was requested and repeatedly denied. Dr. Ravdel argued that appellant still had 

clinical problems and surgery was needed. He continued to treat her and prescribe medication. 

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.8

 

Appellant also provided several reports from Dr. Key, who placed her off work and 

request treatment authorization. Dr. Key also indicated that he wanted to expand her claim to 

include other conditions. In his November 1, 2013 report, he advised that he had been treating 

the patient for several months, noting that appellant was injured on the job. Dr. Key explained 

that her condition had not improved substantially since her initial injury. He noted that appellant 

 7 Id.

8 Annie L. Billingsley, 50 ECAB 210 (1998); E.R., Docket No. 09-599 (issued June 3, 2009). 
6

was not working for more than 12 months and opined that it was not likely that she would be 

able to return to work within the next 12 months. Dr. Key opined that she was totally disabled. 

In his February 5, 2014 report, he advised that for some “inexplicable reason” appellant’s case 

was not open. However, the Board finds that Dr. Key’s reports are insufficient to establish clear 

evidence of error. This evidence is insufficient to shift the weight of the evidence in favor of 

appellant and raise a substantial question as to the correctness of OWCP’s decision 

Other medical evidence submitted on reconsideration, including treatment records and 

diagnostic test results, is also insufficient to establish clear evidence of error. These reports do 

not provide positive, precise or explicit evidence that manifests on its face that OWCP 

committed an error in its November 15, 2012 decision. 

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

question concerning the correctness of the November 15, 2012 decision and OWCP properly 

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

On appeal, appellant reiterates that she still has residuals of her original injury and that 

her physician supports her claim. However, the Board does not have jurisdiction to consider the 

merits of the claim and, for the reasons noted, she has not established clear evidence of error. 

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. 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 30, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 17, 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