United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Duluth, GA, Employer 

__________________________________________ 

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Docket No. 15-135 

Issued: June 4, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 24, 2014 appellant filed a timely appeal from an April 30, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

has elapsed from the last merit decision dated March 29, 2012 to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of her claim. 

ISSUE 

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

the grounds that it was untimely filed and failed to establish clear evidence of error. 

FACTUAL HISTORY 

This case has previously been before the Board on appeal on two occasions. On 

December 7, 2008 appellant, then 50-year-old clerk, filed a traumatic injury claim alleging that 

she injured her hand, knee, and back on that date when she tripped and fell in the performance of 

 1

 5 U.S.C. § 8101 et seq. 
2

duty. OWCP accepted her claim for right wrist sprain, contusion of the left knee and lumbar 

sprain on June 17, 2009. By decision dated December 29, 2009, it denied appellant’s claim for 

intermittent periods of disability from September 1 through October 13, 2009 finding that she 

failed to submit supportive medical evidence. In its October 5, 2010 decision,2

 the Board found 

that there was not sufficient medical evidence attributing appellant’s current back condition and 

any resulting disability to her accepted employment injuries. 

Appellant filed claims for compensation for periods from December 3, 2010 through 

March 11, 2011. OWCP denied these claims by decisions dated February 14, March 18 and 

April 14, 2011. In a decision dated September 22, 2011, an OWCP hearing representative 

affirmed the denial of compensation benefits for the period from December 3 through 14, 2011. 

Appellant requested reconsideration and in March 29, 2012 decisions, OWCP reviewed the 

merits of her claim and denied modification of the February 14, March 18 and April 14, 2011 

decisions. OWCP declined to reopen appellant’s claim for consideration of the merits on 

April 20 and June 21, 2012. Appellant appealed the June 21, 2012 denial of merit review to the 

Board. In its July 9, 2013 decision,3

 the Board found that OWCP properly declined to reopen her 

claim for consideration of the merits. The facts and circumstances of the case as set out in the 

Board’s prior decisions are adopted herein by reference. 

Appellant requested reconsideration on November 14, 2013 and stated that her claim was 

approved from a sprained wrist when she sustained a torn ligament. She stated that her 

employment injury resulted in a wrist scapholunate ligament tear. On December 19, 2013 

appellant again requested reconsideration and stated that her disability was caused by her 

December 7, 2008 employment injury, which resulted in a torn ligament in her wrist. 

In a January 22, 2014 decision, OWCP found that appellant’s request for reconsideration 

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

By letter dated February 8, 2014, received by OWCP on February 18, 2014, appellant 

requested reconsideration of the March 29, 2012 merit decisions and asserted that the physicians 

in the record diagnosed scapholunate ligament tear with arthritis rather than a sprain. She 

referenced a note dated July 22, 2009 from Dr. Stephen McCollam, a Board-certified orthopedic 

surgeon. On July 22, 2009 Dr. McCollam diagnosed isolated capitolunate osteoarthritis. He 

stated that this condition preexisted appellant’s employment injury and was an exacerbation of a 

preexisting problem. 

Appellant also alleged that Dr. Robert L. Howell, a Board-certified plastic surgeon, 

submitted a report dated August 25, 2010 supporting her claim. The record contains a right wrist 

computed tomography scan dated August 24, 2010 diagnosing arthritis changes of the lunatecapitate and lunate-hamate articulations consistent with osteoarthritis. An x-ray dated 

August 24, 2010 demonstrated arthritic changes of the lunate-capitate and lunate-hamate 

articulations consistent with osteoarthritis. In a note dated October 7, 2009, Dr. Howell 

examined appellant due to degenerative arthritis of the right wrist and noted that she had not 

worked since July 22, 2009. He examined x-rays and diagnosed entire mid-carpal osteoarthritis. 

 2

 Docket No. 10-800 (issued October 5, 2010). 

3

 Docket No. 13-189 (issued July 9, 2013). 
3

Dr. Howell opined that appellant’s condition of chronic degenerative arthritis of the right wrist 

should be addressed under private insurance as he did not believe that her employment incident 

caused this condition. 

In a report dated October 4, 2010, Dr. Howell noted appellant’s history of a fall and 

landing on an outstretched hand. He diagnosed scapholunate ligament tear and stated that it was 

extremely difficult to know whether this condition was caused by the December 7, 2008 fall. 

Dr. Howell stated that the fall either caused or significantly exacerbated appellant’s scapholunate 

ligament tear and was the cause of her current complaints. He completed a note on May 10, 

2011 and diagnosed degenerative arthritis of the right and left wrists. 

In a report dated January 28, 2011, Dr. Howell reviewed appellant’s history of a fall on 

July 12, 2008 and diagnosed hyperextension of her right wrist. He noted that Dr. McCollam 

diagnosed degenerative arthritis of the right wrist not related to the employment injury. 

Dr. Howell stated that he now believed that appellant had degenerative arthritis, which was 

asymptomatic and “It may have been the fall indeed exacerbated the problem and she remains 

symptomatic after the exacerbation at this time.” He noted that appellant did not have a 

traumatic rupture of the scapholunate ligament, but had developed a degenerative pattern of wrist 

osteoarthritis. 

Appellant cited a June 17, 2011 report from Dr. Obinwanne F.C. Ugwonali, a Boardcertified orthopedic surgeon, as supporting her claim. Dr. Ugwonali diagnosed chronic right 

wrist arthritis and scapholunate ligament tear likely aggravated by her fall at work on 

December 7, 2008. He stated that appellant’s fall did not likely cause her scapholunate ligament 

tear or arthritis, but aggravated the preexisting condition. 

Appellant mentioned a February 4, 2012 report from Dr. John I. Foster, III, a Boardcertified orthopedic surgeon, which is not included in the record, and a September 1, 2012 report 

from an orthopedic surgeon, Dr. Plas T. James, addressing her back condition. 

By decision dated March 14, 2014, OWCP declined to reopen appellant’s claim for 

reconsideration on the grounds that her request was untimely filed and failed to establish clear 

evidence of error. 

On March 28, 2014 appellant corresponded with the Regional Director of OWCP, 

contending that all her requests for reconsideration were timely. She disagreed with the prior 

denials of her claim and again requested reconsideration. In a letter to appellant dated April 18, 

2014, OWCP stated, “Since your most recent letter requested reconsideration, your case will be 

assigned to a senior claims examiner.” 

On April 30, 2014 OWCP issued a decision declining to reopen appellant’s claim for 

consideration of the merits on the grounds that her request for reconsideration received on 

February 18, 2014 was untimely and that the evidence presented in support of the 

reconsideration request did not show clear evidence of error. It noted that the issue of whether 

appellant sustained a scapholunate ligament tear, due to her December 7, 2008 employment 

injury, had not been formally denied and that a formal decision was required before this issue 

could be reviewed. 
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LEGAL PRECEDENT 

Under section 8128(a) of FECA4 OWCP has the discretion to reopen a case for review on 

the merits, on its own motion or on application by the claimant. It must exercise this discretion in 

accordance with section 10.607 of the implementing federal regulations. Section 10.607 provides 

that “An application for reconsideration must be sent within one year of the date of [OWCP’s] 

decision for which review is sought.”5 In Leon D. Faidley, Jr.,6 the Board held that the imposition 

of the one-year time limitation for filing an application for review was not an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA. The one-year time 

limitation period set forth in 20 C.F.R. § 10.607 does not restrict OWCP from performing a limited 

review of any evidence submitted by a claimant with an untimely application for reconsideration. 

OWCP is required to perform a limited review of the evidence submitted with an untimely 

application for review to determine whether a claimant has submitted clear evidence of error on the 

part of OWCP thereby requiring merit review of the claimant’s case. 

Thus, if the request for reconsideration is made after more than one year has elapsed from 

the issuance of the decision, the claimant may only obtain a merit review if the application for 

review demonstrates “clear evidence of error” on the part of OWCP.7

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

which was decided by OWCP.8

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

manifest on its face that OWCP committed an error.9

 Evidence which does not raise a 

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

clear evidence of error.10 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.11 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.12 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 shift the weight of the evidence in favor of the claimant and raise a fundamental question 

as to the correctness of OWCP decision.13 The Board makes an independent determination of 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.607. 

6

 41 ECAB 104, 111 (1989). 

7

 20 C.F.R. § 10.607; Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

8 See Dean D. Beets, 43 ECAB 1153 (1992). 

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

10 See Jesus D. Sanchez, supra note 7. 

11 See Leona N. Travis, supra note 9. 

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

13 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 
5

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.14

ANALYSIS 

In response to appellant’s February 8, 2014 reconsideration request, received by OWCP on 

February 18, 2014, OWCP issued two nonmerit decisions denying appellant’s request on the 

grounds that they were untimely filed and failed to establish clear evidence of error. The only 

decision properly before the Board on this appeal is the April 30, 2014 decision, as it was issued 

within 180 days of the filing of this appeal.15

The Board finds that the April 30, 2014 refusal of OWCP to reopen appellant’s claim for 

further consideration on the merits of the claim under 5 U.S.C. § 8128(a) on the basis that her 

request for reconsideration was untimely filed within the one-year time limitation period set forth 

in 20 C.F.R. § 10.607 and did not show clear evidence of error was proper and did not constitute 

abuse of discretion. The most recent merit decisions in this case are the March 29, 2012 decisions 

denying appellant’s claims for periods of disability due to her accepted employment injury. 

Appellant’s February 8, 2014 reconsideration request was received on February 18, 2014, almost 

two years after the March 29, 2012 decisions and, thus, her request is untimely. 

In her untimely request for reconsideration, appellant argued that the medical opinion 

evidence in the record established that her claim should be accepted for the additional condition of 

scapholunate ligament tear with arthritis entitling her to additional periods of disability 

compensation. In support of her claim, appellant referenced medical reports included in the 

record and previously reviewed by OWCP. While the reports of Drs. McCollam, Howell, and 

Ugwonali support that appellant’s employment-related fall may have aggravated her underlying 

arthritis and thus possibly resulted in additional periods of disability, these reports are not of 

sufficient probative value to shift the weight of the evidence in favor of the claimant. 

Dr. McCollam merely stated that appellant had sustained an exacerbation of a preexisting problem 

without explaining whether this exacerbation was permanent or temporary and without provide a 

period of disability as a result of this exacerbation. This limited medical opinion is not sufficient 

to show clear evidence of error. 

Dr. Howell presented conflicting opinions of whether appellant’s employment incident 

resulted in an exacerbation of her underlying arthritis. When he did opine that her fall 

exacerbated her arthritis and that appellant remains symptomatic after the exacerbation, he did 

not provide medical reasoning and did not provide a specific period of disability due to this 

exacerbation. Due to these deficiencies, Dr. Howell’s reports are not sufficient to establish clear 

evidence of error on the part of OWCP. 

Dr. Ugwonali diagnosed chronic right wrist arthritis and scapholunate ligament tear likely 

aggravated by appellant’s fall at work on December 7, 2008. His report is not of sufficient 

probative value to establish clear evidence of error as his report is couched in speculative terms 

noting that her ligament tear was “likely” aggravated by her fall at work. The Board has held 

 14 Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458, 466 (1990). 

15 See 20 C.F.R. § 501.3(e). 
6

that medical opinions that are speculative or equivocal in character diminish the probative value 

of the medical opinion.16 As this report is of diminished probative value it cannot establish clear 

evidence of error on the part of OWCP. 

To establish clear evidence of error, it is not sufficient merely to 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.17

CONCLUSION 

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

the grounds that it was untimely filed and failed to establish clear evidence of error. 

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: June 4, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 A.G., Docket No. 12-659 (issued August 22, 2012); D.D., 57 ECAB 734, 738 (2006). 

17 D.G., 59 ECAB 455 (2008).