United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

South Plainfield, NJ, Employer 

__________________________________________ 

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Docket No. 15-399 

Issued: April 15, 2015 

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant 

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 December 10, 2014 appellant, through counsel, filed a timely appeal from a July 2, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because 

more than 180 days has elapsed from the last merit decision dated September 28, 2012 to the 

filing of this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2 and 501.3 the only decision properly before the Board is the July 2, 2014 

nonmerit decision. 

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. 

On appeal, counsel argued that OWCP failed to consider whether appellant’s condition 

was aggravated by her employment duties, failed to apply the proper standard in evaluating 

medical evidence and that OWCP prejudiced her rights by requiring receipt of reconsideration 

 1

 5 U.S.C. § 8101 et seq. 
2

request. He further argued that it failed to issue a decision within 90 days of appellant’s request 

for reconsideration, prejudicing her appeal rights. 

FACTUAL HISTORY 

On February 28, 2012 appellant, then a 48-year-old letter carrier, filed a traumatic injury 

claim alleging that she sustained pain in her lower back while exiting a postal vehicle on 

February 28, 2012. In support of her claim, she submitted a note dated March 1, 2012 from 

Dr. H. Mahmood Cheema, a Board-certified orthopedic surgeon, stating that she was totally 

disabled from February 29 through March 15, 2012. 

In a letter dated March 21, 2012, OWCP requested additional factual and medical 

information from appellant. Dr. Cheema completed a form report on April 3, 2012 and 

diagnosed low back pain, spinal stenosis, facet hypertrophy, and radiculopathy. He indicated 

with a checkmark “yes” that he believed that appellant’s condition was caused or aggravated by 

an employment activity, specifically lifting, and bending which aggravated low back and leg 

pain. 

Dr. Uzma Parvez, a Board-certified physiatrist with a pain medicine subspecialty, 

examined appellant on March 29, 2012 and reported that she sustained an injury at work on 

February 28, 2012 when she stepped out of a truck and her back popped. He stated that she had 

a similar episode on November 9, 2010 at work when she lifted a tray and felt a pop in her back. 

Dr. Parvez stated that appellant did not require treatment in November 2010, but that since 

February 2012 her back pain had worsened with radiation of pain to both lower extremities. 

Appellant also reported numbness, tingling, and weakness in her legs resulting in three falls. 

Dr. Parvez stated that he reviewed a magnetic resonance imaging (MRI) scan dated February 10, 

2012 which revealed moderate-to-severe central stenosis L3 through L5 with a left lateral disc 

herniation. He found severe spasms in the lumbar paraspinal musculature and right sacroiliac 

joint. Dr. Parvez stated that appellant had decreased sensation in the left lower extremity in the 

L4-5 dermatomes. He diagnosed low back pain, right lower extremity radiculopathy, moderateto-severe spinal stenosis, and disc herniation at L3-4 with disc bulges at L3-5. 

Appellant underwent an MRI scan on February 10, 2012 which demonstrated L3-4 left 

lateral herniation of the nucleus pulposus and moderate-to-severe central stenosis at L3-4, 

moderate-to-severe central stenosis at L4-5 and mild central stenosis at L2-3. 

By decision dated April 26, 2012, OWCP denied appellant’s claim for traumatic injury 

finding that she had not submitted sufficient medical evidence to establish a causal relationship 

between her diagnosed condition and her employment activities. Counsel requested an oral 

hearing on May 10, 2012 before an OWCP hearing representative. 

In a report dated July 12, 2012, Dr. Parvez restated his findings and diagnoses from his 

March 29, 2012 report and noted that appellant had not worked since February 28, 2012. 

Counsel appeared and appellant testified at the oral hearing before the hearing 

representative on August 16, 2012. He argued that she had sustained an aggravation of a 

preexisting work injury and requested that OWCP combine this case with appellant’s other 
3

claim.2

 Appellant testified that she was injured on November 9, 2010, underwent medical 

treatment and returned to work in December 2010. She stated that she did not experience any 

sciatica at that time. Appellant lost time from work due to asthma and before her return to work 

on December 10, 2012 experienced low back pain and sciatic pain in her left leg. She testified 

that her low back pain began again on February 10, 2012. Appellant returned to limited-duty 

work on February 28, 2012 and as she got out of her postal vehicle to deliver mail her back 

popped. She completed her workday and went home. Appellant stated that she took a muscle 

relaxer and a painkiller. The following morning she was unable to move and experienced sciatic 

pain in both legs. Appellant sought medical treatment from Dr. Cheema and stopped work. She 

fell a few times and began using a cane. Appellant testified that she was unable to complete 

housework, could not stand to shower, and could no longer ride the bus. She stated that she had 

radicular symptoms in her left leg, but that her right leg was pain free. Appellant stated that she 

did not seek treatment for her back condition between December 2010 and February 2012. The 

hearing representative requested additional medical evidence and allowed 30 days for a response. 

In a decision dated September 28, 2012, the hearing representative affirmed the April 26, 

2012 decision finding that appellant had not submitted the necessary medical opinion evidence to 

establish a causal relationship between her diagnosed back condition and her employment event. 

She noted that appellant underwent an MRI scan on February 10, 2012 prior to her alleged work 

injury which demonstrated disc herniation. The hearing representative found that Dr. Parvez’s 

reports finding an aggravation were not clearly based on a proper factual background and did not 

provide sufficient medical reasoning to establish appellant’s claim as he attributed her condition 

to lifting and bending, not stepping out of her mail vehicle. 

Appellant, through counsel, requested reconsideration on a form dated September 24, 

2013 and received by OWCP on September 30, 2013. Counsel submitted a brief of the same 

date and alleged that she had sustained an aggravation of her underlying condition through the 

February 28, 2012 traumatic injury. He alleged that the additional medical evidence included in 

the request for reconsideration was sufficiently detailed and well-reasoned to meet appellant’s 

burden of proof. 

Appellant submitted August 29 and November 8, 2012 treatment notes from Dr. Danielle 

Groves, a Board-certified orthopedic surgeon. In a report dated October 16, 2012, Dr. Groves 

summarized her August 29, 2012 notes and stated that she examined appellant on August 29 and 

October 3, 2012. She noted that appellant reported low back pain beginning November 9, 2010, 

a recurrence of back pain in December 2011 and a work-related injury on February 28, 2012 

when she felt her back pop as she stepped out of her postal vehicle to deliver mail. Dr. Groves 

reviewed appellant’s February 10, 2012 MRI scan which demonstrated central stenosis, disc 

bulging, and disc herniation at L3-4 as well as possible lumbar spasm. She stated that appellant 

underwent a nerve conduction study on June 5, 2012 which demonstrated left L5 radiculopathy 

and bilateral peroneal motor axonal neuropathy. Dr. Groves opined that appellant had significant 

low back pain due to her February 28, 2012 injury, with a history of lumbar stenosis, disc 

herniations and facet arthritis at multiple levels. She stated, “In my best medical opinion, 

[appellant] had a preexisting condition of her lumbar spine which is the lumbar stenosis, lumbar 

 2

 Counsel mentioned claim file number xxxxxx252. This claim is not associated with the current claim on appeal. 
4

disc bulges, facet hypertrophy at L4-5 and L3-4, as this was all documented on an MRI scan of 

December 10, 2012 which was prior to the date of injury, and on the date of injury February 28, 

2012 the patient aggravated her underlying condition and is suffering the consequences with 

severe low back pain and left leg pain and requires treatment at this time for her injuries.” In the 

November 8, 2012 note, Dr. Groves stated that appellant clearly had a preexisting condition 

present prior to her February 28, 2012 work incident. She concluded that the episode where 

appellant felt a pop in her back was a temporary aggravation of her underlying condition. 

Dr. Groves stated, “Spinal stenosis is a permanent condition, but [appellant’s] aggravation is 

really in the terms of a radiculitis and a strain and all of this information is within a reasonable 

degree of medical certainty.” 

Appellant also included a nerve conduction velocity study and electromyography dated 

June 5, 2012 which demonstrated left L5 radiculopathy and bilateral peroneal motor axonal 

neuropathy. 

In a letter dated June 19, 2014, counsel requested a decision responsive to his 

September 24, 2013 request for reconsideration. 

By decision dated July 2, 2014, OWCP denied appellant’s request for reconsideration on 

the grounds that it was untimely and failed to establish clear evidence of error on the part of 

OWCP. It stated that the September 24, 2013 request for reconsideration was not received 

within one year from the September 28, 2012 decision. The request for reconsideration was not 

received and imaged until Monday, September 30, 2013, and was therefore, untimely. OWCP 

further found that the evidence submitted with the untimely request for reconsideration did not 

establish clear evidence of error and was not sufficient to require OWCP to reopen appellant’s 

claim for consideration of the merits. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA3

 OWCP has the discretion to reopen a case for review on 

the merits, on its own motion or on application by the claimant. OWCP 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.”4

 In Leon D. Faidley, Jr.,5 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. 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 

5

 41 ECAB 104, 111 (1989). 
5

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.6

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

which was decided by OWCP.7 The evidence must be positive, precise, and explicit and must be 

manifest on its face that OWCP committed an error.8 Evidence which does not raise a 

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

clear evidence of error.9

 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.10 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.11 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 prima facie shift the weight of the evidence in favor of the claimant and raise a 

fundamental question as to the correctness of OWCP’s decision.12 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.13

ANALYSIS 

The only decision before the Board on this appeal is that of OWCP dated July 2, 2014 in 

which it declined to reopen appellant’s case on the merits because the request was not timely filed, 

and did not show clear evidence of error. Since more than 180 days elapsed from the date of 

issuance of OWCP’s September 28, 2012 merit decision to the date of the filing of appellant’s 

appeal, on December 10, 2014, the Board lacks jurisdiction to review that decision.14

The Board finds that contrary to counsel’s argument on appeal, OWCP properly 

determined that appellant failed to file a timely application for review. As noted, an application for 

reconsideration must be received within one year of the date of OWCP’s decision for which review 

is sought. The regulatory language unequivocally sets a one-year time limitation for 

 6

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

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

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

9 See Jesus D. Sanchez, supra note 6. 

10 See supra note 8. 

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

12 Supra note 5. 

13 Gregory Griffin, 41 ECAB 458, 466 (1990). 

14 See 20 C.F.R. § 501.3(e). 
6

reconsideration requests to be received by OWCP.15 As appellant’s request for reconsideration 

was not received by OWCP until September 30, 2013 more than one year after issuance of the 

September 28, 2012 merit decision, it was untimely. On appeal, counsel argued that the 

requirement of receipt by OWCP within one year of the date of merit decision prejudiced 

appellant’s rights. The Board has consistently upheld this regulatory standard and the argument 

is without merit.16

On appeal, counsel also argued that OWCP failed to issue a timely decision regarding the 

request for reconsideration and that this prejudiced appellant’s appeal rights. The Board notes 

that OWCP has a timeliness goal for issuing reconsideration decisions of within 90 days from 

receipt of the request.17 OWCP’s procedures provide that when a reconsideration decision is 

delayed beyond 90 days and the delay jeopardizes the claimant’s right to review of the merits of 

the case by the Board, OWCP should conduct a merit review.18 However, the procedure manual 

notes there is no obligation to conduct a merit review on insufficient evidence if the maximum 

180-day time limit for requesting review by the Board will have expired within the 90-day period 

following OWCP’s receipt of the claimant’s reconsideration request.19 The Board finds that in 

this case the 180-day period for appeal expired before appellant’s request for reconsideration and 

that therefore OWCP’s delay in issuing the decision on her request for reconsideration did not 

impact her appeal rights. Counsel’s argument on appeal is thus without merit. 

OWCP denied appellant’s traumatic injury claim on the grounds that there was 

insufficient medical evidence to establish that her February 28, 2012 employment incident 

resulted in an injury as alleged. The hearing representative specifically noted that there was no 

medical evidence based on a proper factual background which established a causal relationship 

between the employment incident and appellant’s diagnosed back conditions. With her untimely 

request for reconsideration, appellant submitted additional medical evidence from Dr. Groves 

opining that the February 28, 2012 employment incident resulted in an aggravation of appellant’s 

underlying back condition. While Dr. Groves provided a clear and detailed history of injury and 

opined that appellant’s underlying spinal stenosis was temporarily aggravated by her “pop” while 

stepping out of her postal vehicle on February 28, 2012 which resulted in a strain and radiculitis, 

she did not provide any medical reasoning explaining how or why these conditions resulted from 

the employment activity of stepping out of a postal vehicle. She failed to provide a rationalized 

medical explanation as to how appellant’s employment incident aggravated her underlying back 

condition. Dr. Groves report does not establish clear evidence of error as it does not show that 

OWCP committed an error in denying appellant’s claim, nor does it raise a substantial question 

as to the correctness of OWCP’s decision. 

 15 Id. at § 10.607(a); L.H., Docket No. 14-1655 (issued February 20, 2015). 

16 A.S., Docket No. 15-17 (issued February 27, 2015); R.L., Docket No. 14-1342 (issued February 24, 2015). 

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (October 2011). 

18 Id. at Chapter 2.1602.7. 

19 Id.
7

The nerve conduction testing dated June 5, 2012 is diagnostic in nature and therefore 

does not address causal relationship. As such, the Board finds that it is insufficient to establish 

clear evidence of error.20

On appeal, counsel argued that OWCP failed to consider whether appellant sustained an 

aggravation of her underlying condition in denying her claim on September 28, 2012. The Board 

notes that the hearing representative reviewed the medical evidence before her at the time the 

decision was issued and found that it was not sufficient to establish a causal relationship 

including an aggravation of appellant’s preexisting back condition, noting that Dr. Parvez’s 

reports including finding of an aggravation were not based on a proper factual background. This 

argument is not sufficient to establish clear evidence of error on the part of OWCP as it does not 

establish a clear procedural error, and is not 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’s decision. 

The Board finds that the July 2, 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 not timely 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 an 

abuse of discretion. 

CONCLUSION 

The Board finds that the July 2, 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 not timely 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 an 

abuse of discretion. 

 20 R.R., Docket No. 15-9 (issued February 27, 2015). 
8

ORDER 

IT IS HEREBY ORDERED THAT the July 2, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 15, 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