United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Honolulu, HI, Employer 

__________________________________________ 

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Docket No. 15-0393 

Issued: July 1, 2015 

Appearances: Case Submitted on the Record

Kevin L. Card, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 9, 2014 appellant, through his representative, filed a timely appeal from an 

Office of Workers’ Compensation Programs’ (OWCP) decision dated July 14, 2014. Because 

more than 180 days has elapsed between the last merit decision dated May 16, 2013 and the 

filing of this appeal on December 9, 2014, 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 501.3.2

ISSUE 

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

reconsideration was untimely filed and did not demonstrate clear evidence of error. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 Appellant thereby requested oral argument pursuant to section 501.5(6) of the Board’s Rules of Procedure; 20 

C.F.R. § 501.5(6). The Board denied appellant’s request in a May 27, 2015 order, finding that his arguments could 

be fully and fairly addressed based on a review of the case record. Order Denying Request for Oral Argument, 

Docket No. 15-0393 (issued May 27, 2015). 
2

FACTUAL HISTORY 

This is the second appeal before the Board.3 Appellant, a 56-year-old letter carrier, filed 

a Form CA-2 claim for benefits on August 13, 2007, alleging that his preexisting right knee 

condition was aggravated by factors of his employment. He worked 28 years standing and 

walking in his job as a letter carrier. Appellant underwent total right knee arthroplasty surgery 

on May 29, 2007. The procedure was performed by Dr. John C. Baker, Board-certified in 

orthopedic surgery. 

By decision dated February 27, 2008, OWCP denied the claim, finding that appellant 

failed to submit medical evidence sufficient to establish that his claimed right knee condition was 

causally related to factors of employment. By decision dated September 19, 2008, an OWCP 

hearing representative set aside the February 27, 2008 denial and remanded the case to OWCP to 

refer appellant to an orthopedic specialist for a second opinion examination on whether the 

claimed aggravation of osteoarthritis of the right knee was causally related to employment 

factors and whether the total knee replacement performed on May 29, 2007 was necessitated by a 

work-related condition. 

In order to determine whether appellant’s preexisting right knee arthritis was aggravated 

by employment factors, and whether the May 2007 right knee arthroplasty was necessitated by 

his employment, OWCP referred him to Dr. Lawrence Blumberg, Board-certified in orthopedic 

surgery, for a second opinion examination. He found that appellant’s complaints of right knee 

pain were due to his preexisting right knee osteoarthritis, not his work duties. Dr. Blumberg, 

noting x-ray results dated October 4, 2006, stated that appellant’s right knee arthritis developed 

over years and probably began with the 1977 anterior cruciate ligament injury. He stated that 

appellant’s degenerative arthritis of the knee had progressed over time with normal activities of 

daily living and was not causally related to his job as a postal worker. Dr. Blumberg opined that 

appellant’s arthritis condition was due to the development of degenerative changes consistent 

with his age and level of activity, and the prior, nonwork-related anterior cruciate ligament tear. 

He further found that his May 2007 total knee replacement surgery was not related to any workrelated condition, but was due to age and the onset of degenerative osteoarthritis. 

By decision dated January 13, 2009, OWCP denied appellant’s claim, finding that the 

medical evidence was not sufficient to establish that appellant’s claimed preexisting, right knee 

osteoarthritic condition was causally related to factors of his employment and that his May 2007 

knee surgery was not necessitated by an accepted condition. By decision dated April 12, 2010, 

an OWCP hearing representative affirmed the January 13, 2010 decision. 

In a May 20, 2010 report, Dr. Samy F. Bishai, Board-certified in orthopedic surgery, 

stated that appellant’s work as a letter carrier entailed a great deal of walking and standing, 

which caused him to have intermittent, progressively worsening symptoms in his right knee over 

the years, which culminated in the May 29, 2007 total right knee replacement surgery. He 

advised that appellant’s job required him to walk for long distances on his mail route, while 

carrying a satchel of mail, and that this type of work resulted in the development of his right 

knee degenerative arthritis condition. Dr. Bishai further opined that appellant’s May 29, 2007 

 3 See Docket No. 11-196 (issued November 3, 2011). 
3

total right knee replacement surgery was directly related to and caused by his work-related 

degenerative arthritis condition. 

By decision dated January 21, 2011, OWCP denied modification. In a decision dated 

November 3, 2011,4

 the Board set aside the January 21, 2011 decision, finding that there was a 

conflict in the medical opinion evidence between Dr. Bishai and Dr. Blumberg regarding 

whether appellant’s preexisting, arthritic right knee condition was causally related to 

employment factors, and whether his May 29, 2007 surgery was necessitated by a work-related 

condition. It therefore remanded the case to OWCP for referral to an impartial medical specialist 

to resolve the conflict, to be followed by a de novo decision. The complete facts of this case are 

set forth in the Board’s November 3, 2011 decision and are herein incorporated by reference. 

In order to resolve the conflict in the medical evidence, OWCP scheduled appellant for a 

referee medical examination with Dr. Lawrence M. Gnage, Board-certified in orthopedic 

surgery. In a report dated January 25, 2012, he stated that there was no established medical 

certainty showing a link between a great deal of walking and the development of osteoarthritis in 

any joint. Dr. Gnage asserted that there was a well-known medical relationship between 

previous trauma to the knee and the development of traumatic or early osteoarthritis and that 

appellant clearly had a preexisting condition in his right knee that was predisposed to the 

development of osteoarthritis. He further opined that the anterior cruciate injury appellant 

sustained earlier in his life would be expected to increase his probability of developing 

osteoarthritis. Dr. Gnage stated that, regardless of how much walking appellant did in his job as 

a letter carrier or in any other capacity, this would not provide a basis for evaluating long-term 

walking as a cause for the development of osteoarthritis. He noted that there was no evidence of 

any osteoarthritis in appellant’s left leg. Dr. Gnage concluded that there was no evidence that 

appellant’s job as a letter carrier was the cause of the development of his osteoarthritis or the 

need for a total knee replacement. 

By decision dated February 14, 2012, OWCP denied the claim based on Dr. Gnage’s 

impartial medical opinion, finding that appellant did not establish that his right knee condition 

was causally related to factors of employment and that his total right knee replacement was 

causally related to an accepted condition. 

In a report dated May 7, 2012, Dr. Bishai essentially reiterated the findings, conclusions, 

and opinions he expressed in his May 20, 2010 report.

On December 12, 2012 appellant requested an oral hearing, which was held on 

April 3, 2013. 

By decision dated May 16, 2013, an OWCP hearing representative affirmed the 

February 14, 2012 decision. 

Appellant’s representative requested reconsideration on May 14, 2014. 

 4 Id.
4

By decision dated June 9, 2014, OWCP denied appellant’s application for review, finding 

that it neither raised substantive legal questions nor included new and relevant evidence 

sufficient to require OWCP to review its prior decision. 

On July 1, 2014 OWCP received a letter dated June 23, 2014, from appellant’s 

congressional representative. This letter noted that appellant’s right knee claim had been denied. 

He advised OWCP that he was seeking “thorough consideration” of appellant’s case. 

In a letter received by OWCP on July 1, 2014, appellant provided a description of his job 

duties as a letter carrier, his employment history, and his own explanation as to why he believed 

his federal employment caused his diagnosed conditions. He also indicated that he had been 

given cortisone injections to ameliorate the pain in his right knee. 

In an October 4, 2006 report, received by OWCP on July 7, 2014, Dr. Lawrence A. 

Gaulkin, a specialist in family medicine, related that appellant was experiencing increasing, 

aching pain in the infrapatellar anterior areas of both legs with walking. He stated that on 

examination of the lower extremities he showed no significant deformity, edema, discoloration, 

tenderness, or effusion of the knee joints. 

In a report dated November 2, 2006, received by OWCP on July 7, 2014, Dr. Baker 

stated that appellant worked as a mailman and had a nonservice-connected right knee problem. 

He advised that appellant had undergone multiple surgeries on his right knee after being involved 

in an automobile accident about six years prior. Dr. Baker rated his pain as a level 4 on a scale 

of 1 to 10. 

In a report dated October 13, 2008, received by OWCP on July 7, 2014, Dr. David 

Thompson, Board-certified in orthopedic surgery, stated that appellant underwent a right total 

knee replacement in July 2007 and had ruptured his patellar tendon four months later while 

playing golf. He advised that appellant underwent ameliorative surgery in December 2007. 

Dr. Thompson stated that he had sustained no additional injuries since that time but had a 

profound weakness of knee extension. Appellant believed that the deformity he acquired while 

golfing in December 2007 had persisted despite his subsequent surgery. Dr. Thompson advised 

that on examination appellant had a slightly antalgic gait but did not have a significant limp. He 

felt functional in his motion. Appellant was not in any pain, but did experience difficulty getting 

up from his chair, squatting down, or getting low. Dr. Thompson noted that appellant’s patella 

was quite high and that there was an obvious gap between the patella and the tibial tubercle. 

In an April 3, 2009 report, received by OWCP on July 7, 2014, Dr. Baker noted that 

appellant underwent a right total knee arthroplasty on May 29, 2007 due to arthritis in his right 

knee. He opined that the arthritis was exacerbated due to 281⁄2 years walking a mail route with a 

heavy mailbag and many years of overtime abusing the same knee while performing his duties. 

In addition to the medical reports listed above, appellant submitted an April 10, 2012 

online article from the Arthritis Foundation, received by OWCP on July 7, 2014, which 

discussed the causes of arthritis. 

By letter dated July 11, 2014, OWCP informed appellant’s congressional representative 

that it had received appellant’s request for reconsideration and was in the process of assigning 
5

the case for review, along with any supporting evidence and/or legal argument, and would render 

a new decision in accordance with applicable laws, regulations, and procedures. 

By decision dated July 14, 2014, OWCP denied appellant’s request for reconsideration 

without a merit review, finding that it was untimely and failed to submit factual or medical 

evidence sufficient to establish clear evidence of error. It stated that appellant was required to 

present evidence which showed that OWCP made an error, and that there was no evidence 

submitted that showed that its final merit decision was in error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA5 does not entitle an employee to a review of an OWCP decision 

as a matter of right.6 This section, vesting OWCP with discretionary authority to determine 

whether it will review an award for or against compensation, provides: 

“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, or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.” 

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

discretionary authority under 5 U.S.C. § 8128(a).7 As one such limitation, OWCP has stated that 

it will not review a decision denying or terminating a benefit unless the application for review is 

filed within one year of the date of that decision.8 The Board has found that the imposition of 

this one-year time limitation does not constitute an abuse of the discretionary authority granted 

by OWCP under 5 U.S.C. § 8128(a).9

In those cases where a request for reconsideration is not timely filed, the Board had held 

however that OWCP must nevertheless undertake a limited review of the case to determine 

whether there is clear evidence of error pursuant to the untimely request.10 OWCP procedures 

state that it will reopen an appellant’s case for merit review, notwithstanding the one-year filing 

 5

 5 U.S.C. § 8128(a). 

6 Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

7

 Thus, although it is a matter of discretion on the part of OWCP as to whether to review an award for or against 

payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by: 

(1) showing that OWCP erroneously applied or interpreted a point of law; or (2) advancing a relevant legal 

argument not previously considered by it; or (3) constituting relevant and pertinent new evidence not previously 

considered by OWCP. See 20 C.F.R. § 10.606(b). 

8

 20 C.F.R. § 10.607(b). 

9 See cases cited supra note 4. 

10 Rex L. Weaver, 44 ECAB 535 (1993). 
6

limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review shows “clear 

evidence of error” on the part of OWCP.11

To establish clear evidence of error, an appellant must submit evidence relevant to the 

issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must be manifested on its face that it committed an error.13 Evidence which does not raise a 

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

clear evidence of error.14 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.15 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.16 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 substantial question as to the correctness of OWCP’s decision.17 The Board makes an 

independent determination of whether an appellant 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.18

ANALYSIS 

OWCP properly determined that appellant failed to file a timely application for review. 

It issued its most recent merit decision in this case on May 16, 2013. OWCP received 

appellant’s request for reconsideration on July 1, 2014. Thus, the request was untimely as it fell 

outside of the one-year time limit. 

The Board finds that appellant’s July 1, 2014 request for reconsideration failed to show 

clear evidence of error. Appellant submitted reports from Drs. Gaulkin, Baker and Thompson, 

who stated findings on examination, advised that they had treated appellant for right knee pain, 

and generally indicated that his right knee condition was aggravated by his years of working as 

mail carrier. These reports are of limited probative value as they did not provide a reasoned 

medical opinion on the relevant issue; i.e., whether appellant sustained a right knee condition 

caused or aggravated by employment factors. None of the reports appellant submitted with his 

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

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

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

14 See Jesus D. Sanchez, supra note 6. 

15 See supra note 13. 

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

17 Leon D. Faidley, Jr., supra note 6. 

18 Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990). 
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request are 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 also finds that the April 10, 2012 online article from the Arthritis Foundation 

which appellant submitted does not constitute medical evidence under section 8101(2) and has 

no probative value. Therefore, appellant has failed to demonstrate clear evidence of error on the 

part of OWCP. 

On appeal appellant’s representative argues that OWCP erred by not addressing the 

May 14, 2014 request for reconsideration submitted by his representative, and by addressing the 

documentation submitted by appellant which it received on July 1, 2014 instead. This assertion 

is not correct, as the record reflects that OWCP issued a nonmerit decision on June 9, 2014 in 

response to the May 14, 2014 request for reconsideration. 

OWCP reviewed the evidence appellant submitted and properly found it to be insufficient 

to shift the weight of the evidence in favor of appellant. Consequently, the evidence submitted 

by appellant on reconsideration is insufficient to establish clear evidence of error on the part of 

OWCP such that it abused its discretion in denying merit review. The Board finds that OWCP 

properly denied further merit review. 

CONCLUSION 

The Board finds that appellant has failed to submit evidence establishing clear error on 

the part of OWCP in his reconsideration request dated July 1, 2014. Inasmuch as appellant’s 

reconsideration request was untimely filed and failed to establish clear evidence of error, OWCP 

properly denied further review on July 14, 2014. 
8

ORDER 

IT IS HEREBY ORDERED THAT the July 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 1, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board