United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, San Juan, PR, Employer 

__________________________________________ 

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Docket No. 14-1655 

Issued: February 20, 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 July 25, 2014 appellant filed a timely appeal from a February 12, 2014 nonmerit 

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

reconsideration without 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 

January 23, 2013 the date of the most recent OWCP merit decision, to the filing of this appeal, 

the Board lacks jurisdiction to review the merits of the case. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 11, 2012 appellant, then a 35-year-old transportation security officer, filed an 

occupational disease claim alleging a neck injury due to factors of her employment. She first 

became aware of her condition on January 15, 2012 and became aware of its relation to her 

federal employment on January 31, 2012. Appellant stopped work on February 4, 2012. 

Appellant submitted a January 17, 2012 report from Dr. Nancy Alicea-Valentin, a Boardcertified physiatrist, who diagnosed shoulder pain and cervicodorsal back pain. Dr. AliceaValentin advised that the injury occurred after seasonal overuse of the extremity at the work area. 

She further advised that a magnetic resonance imaging (MRI) scan of the cervical spine had been 

ordered. In a February 13, 2012 report, Dr. Alicea-Valentin noted that appellant had previously 

undergone shoulder decompression subacromial surgery in October 2009 and arthroscopic 

synovectomy and anesthetic manipulation in April 2010. She advised that authorization requests 

for the MRI scans of the spine and shoulder were still pending. Dr. Alicea-Valentin also advised 

that paraspinal muscle spasms were evident at the cervicodorsal back, upper trapezius muscles, 

levator scapulae muscles, and sternocleidomastoid muscle region. In a March 15, 2012 attending 

physician’s report (Form CA-20), she checked the box “yes” indicating that appellant’s condition 

was employment related. 

In a February 16, 2012 MRI scan report of the cervical spine, Dr. Diana Fernandez 

Garcia, a diagnostic radiologist, found muscle spasms, multilevel degenerative changes, and 

discogenic disease. 

In a February 27, 2012 report, Dr. Alicea-Valentin advised that a February 21, 2012 MRI 

scan of the right shoulder revealed impingement syndrome and mild hypertrophy of the 

acromioclavicular joint causing a mild mass effect. She also advised that the February 16, 2012 

cervical spine MRI scan revealed multilevel degenerative disc changes, tiny anterior osteophytes 

at multiple levels, and muscle spasm at C3-C4 through C7-T1 and T2-3. Dr. Alicea-Valentin 

indicated that there was a three- to four-millimeter diffuse posterior disc bulge causing 

impression of the subarachnoid space anteriorly, but with existing nerve roots appearing intact. 

In a March 7, 2012 disability status report, she advised that appellant was unable to return to 

work until March 14, 2012. 

In a June 11, 2012 statement, appellant advised that on January 15, 2012 she felt neck 

and shoulder pain while performing the repetitive activity of checking boarding passes and IDs. 

In a statement dated June 11, 2012, appellant’s supervisor acknowledged notice of appellant’s 

condition on January 15, 2012. 

By letter dated July 11, 2012, OWCP notified appellant that the evidence was insufficient 

to establish her claim and advised her of the type of evidence needed to establish her claim. 

In an August 6, 2012 response to OWCP’s questionnaire, appellant advised that she 

injured herself on January 15, 2012 when she was looking up and down to check boarding passes 

and identifications. She stated that she performed this activity for four shifts on the date of her 

injury for 30 to 45 minutes each shift. Appellant advised that she began to feel sharp neck pain 

that was so bad that she could not lift her head. She further advised that she notified her 
3

supervisor who switched her to a position that did not require her to look up and down. 

Appellant stated that at the end of her shift she could barely stand and that her neck and 

shoulders were swollen. 

By decision dated September 7, 2012, OWCP denied appellant’s claim because the 

medical evidence was insufficient to establish that appellant’s condition was causally related to 

the accepted work events. 

On October 3, 2012 appellant requested a review of the written record and provided an 

October 2, 2012 report from Dr. Alicea-Valentin who diagnosed right cervical radiculitis, 

cervical spine muscle spasm, cervical spine degenerative changes, and cervical spine discogenic 

disease. Dr. Alicea-Valentin also noted that appellant sustained a cervical whiplash. She stated 

that repetitive flexion and extension movements of the neck and trunk, while performing 

assigned duties at the checkpoint area on January 15, 2012, caused appellant’s injury. 

Dr. Alicea-Valentin further advised that repetitive movements with both upper extremities, 

reaching above shoulder level in a repetitive fashion, and prolonged standing increased cervical 

spine axial stress load and forces which may have caused progressive discogenic disease and 

degenerative cervical radiculitis. She opined that she had no doubt that there was a correlation 

between appellant’s job and the pathological conditions that she described. 

Appellant submitted a claim for compensation (Form CA-7) requesting wage-loss 

compensation for November 1, 2012 through January 3, 2013. 

By decision dated January 23, 2013, an OWCP hearing representative denied appellant’s 

claim because medical evidence was not based on a complete factual and accurate history and 

was insufficient to establish that the diagnosed conditions were causally related to the 

employment injury. 

Appellant continued to submit status reports from Dr. Alicea-Valentin. These included 

February 19 and May 6, 2013 attending physician’s reports noting appellant’s status, diagnosis 

codes, and checking a box “yes,” that her condition was employment related. Each report 

indicated that appellant performed repetitive duties at work. Dr. Alicea-Valentin also submitted 

work capacity evaluation forms of the same dates, setting forth appellant’s work restrictions. 

On January 28, 2014 OWCP received appellant’s request for reconsideration. In support 

of her request, appellant submitted an October 23, 2013 report from Dr. Mildred Diaz, a family 

medicine specialist, who noted that appellant complained of severe neck pain, severe right 

shoulder pain, and weakness in the upper extremities that was more severe on the right side. 

Dr. Diaz diagnosed cervical radiculopathy and cervical disc bulge at C2-3, C3-4, C4-5, C5-6, 

and C-6-7. She opined that appellant’s diagnosed conditions were the direct result of repetitive 

neck movements, including looking up and down to check passenger identifications and 

boarding passes. Dr. Diaz stated that lifting suitcases and packages weighing up to 70 pounds 

also contributed to her condition. In her opinion, these tasks put excessive strain on appellant’s 

neck which led to multiple level cervical disc bulges. Those disc bulges led to appellant’s 

secondary condition of cervical radiculopathy. 
4

By decision dated February 12, 2014, OWCP denied appellant’s request for 

reconsideration because it was untimely filed and did not establish clear evidence of error. 

On appeal, appellant argued that she postmarked her request for reconsideration within 

one year of OWCP’s January 23, 2013 merit decision. She further argued that a snow storm 

delayed the delivery of her request. 

LEGAL PRECEDENT 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is received within one year of the date of that decision.2 

When an application for review is untimely, OWCP undertakes a limited review to determine 

whether the application presents clear evidence that OWCP’s final merit decision was in error.3

 

Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding 

the one-year filing limitation set forth in section 10.607 of OWCP regulations, if the claimant’s 

application for review shows clear evidence of error on the part of OWCP.4

 In this regard, 

OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior 

evidence of record.5

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

which 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 to merely 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. To show clear 

evidence of error, the evidence submitted 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.6

OWCP procedures note 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 

 2

 20 C.F.R. § 10.607(a) (2011). 

3 Cresenciano Martinez, 51 ECAB 322 (2000). 

4

 20 C.F.R. § 10.607(b) (2011). 

5 See Alberta Dukes, 56 ECAB 247 (2005). 

6 Robert G. Burns, 57 ECAB 657 (2006). 
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evidence of error.7

 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.8

ANALYSIS 

The Board finds that OWCP properly found appellant’s request for reconsideration 

untimely filed. The most recent OWCP merit decision in this case was issued on 

January 23, 2013. Appellant’s request for reconsideration was not received by OWCP until 

January 28, 2014, more than one year after the January 23, 2013 merit decision. Therefore, it 

was not timely filed. Consequently, appellant must demonstrate clear evidence of error by 

OWCP in denying her claim for compensation. 

On appeal, appellant argues that she postmarked her request for reconsideration before 

the one-year time limitation and that a snow storm delayed its delivery. OWCP regulations, 

however, are clear that an application for reconsideration must be received by OWCP within one 

year of the date of OWCP’s decision for which review is sought. Thus, the fact that the 

reconsideration letter was mailed before January 23, 2014 does not constitute a timely filing. 

The regulatory language unequivocally sets a one-year time limitation for reconsideration 

requests to be received by OWCP.9

The Board finds that appellant has not established clear evidence of error in the denial of 

her occupational disease claim. On appeal, appellant argues that medical evidence submitted 

after its January 23, 2013 decision, but prior to her request for reconsideration, was not 

considered and that such evidence establishes causal relationship. When evidence is submitted 

in support of an untimely request for reconsideration, OWCP may only undertake a limited 

review of the evidence to determine whether it amounts to clear evidence of error. The Board 

finds that OWCP properly undertook a limited review of evidence submitted after its January 23, 

2013 decision to determine whether there was clear evidence of error. Appellant submitted 

February 19 and May 6, 2013 attending physician’s reports from Dr. Alicea-Valentin. These 

reports indicated that appellant performed repetitive duties at work, noted appellant’s status, and 

offered diagnoses. Dr. Alicea-Valentin checked a box “yes” on the form reports to indicate that 

appellant’s condition was employment related. She also submitted work capacity evaluation 

forms of the same dates, setting forth appellant’s work restrictions. The work capacity 

evaluation did not specifically address causal relationship. While the attending physician’s 

reports provide some support for causal relationship, they do not raise a substantial question as to 

 7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011); 

James R. Mirra, 56 ECAB 738 (2005). 

8 Nancy Marcano, 50 ECAB 110 (1998). 

9

 20 C.F.R. § 10.607(a). (Effective August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP decision for which review is sought.) 
6

the correctness of OWCP’s decision in its denial of appellant’s claim. These reports are 

insufficient to shift the weight of the evidence in favor of appellant.10

Appellant also submitted Dr. Diaz’s October 23, 2013 report in which the physician 

opined that appellant’s work duties were causally related to her diagnosed conditions. She stated 

that appellant’s duties put excessive strain on her neck which led to multiple level cervical disc 

bulges and that those bulges led to appellant’s secondary condition of cervical radiculopathy. 

While this report again supports causal relationship and provides some explanation, it is 

insufficient to establish clear evidence of error on the part of OWCP in its denial of appellant’s 

claim. As noted, it is not enough to merely show that the evidence could be construed so as to 

produce a contrary conclusion. The term clear evidence of error is intended to represent a 

difficult standard.11 The evidence submitted by appellant after OWCP’s January 23, 2013 

decision does not manifest on its face that OWCP committed an error in denying appellant’s 

claim. 

Appellant has not otherwise submitted evidence of sufficient probative value to raise a 

substantial question as to the correctness of OWCP’s January 23, 2013 decision. Thus, the 

evidence is insufficient to establish clear evidence of error. 

CONCLUSION 

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

untimely filed and lacking clear evidence of error. 

 10 See supra note 7 (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). 

11 Id.
7

ORDER 

IT IS HEREBY ORDERED THAT the February 12, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 20, 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