United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

CENTRAL CALIFORNIA HEALTH SYSTEM, 

Fresno, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0613 

Issued: August 7, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 26, 2015 appellant filed a timely appeal from a September 29, 2014 nonmerit 

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

has elapsed from January 2, 2013, the date of the last merit decision at issue, 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 over the merits of this case. 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on or before February 10, 2008 appellant, then a 39-year-old 

clinical psychologist, sustained right lateral epicondylitis, a right shoulder sprain, and a right 

wrist sprain due to repetitive keyboarding, grasping, and reaching in the performance of duty. 

Appellant worked light duty through April 2009, with intermittent work absences beginning on 

February 11, 2009. 

On May 1, 2009 appellant underwent a right lateral epicondylar release, approved by 

OWCP. On May 5, 2009 OWCP noted that appellant’s pay rate as of May 1, 2009, the date that 

disability began, was $1,803.92 a week. Appellant had no prior periods of total disability. 

OWCP paid compensation on the supplemental rolls from May 1 to 29, 2009, based on the 

$1,803.92 pay rate. Appellant returned to modified duty for four hours a day effective 

June 17, 2009. She received compensation for the remaining four hours a day based on the 

May 1, 2009 pay rate of $1,803.92 a week. 

On December 16, 2009 appellant underwent a plasma graft into the right lateral 

epicondylar area. She received total disability compensation through January 29, 2010 based on 

the May 1, 2009 pay rate. Effective January 29, 2010, appellant returned to work for four hours 

a day on Mondays, Wednesdays, and Fridays, and eight hours on Tuesdays and Thursdays. She 

continued on this schedule through March 2010 and continuing. 

In a March 8, 2010 memorandum, OWCP noted amending appellant’s pay rate as the 

medical evidence indicated that she was temporarily totally disabled for work as of 

February 11, 2009. It noted that the prior May 1, 2009 pay rate was for medical appointment 

absences only. OWCP noted, however that appellant’s pay rate on both February 11 and May 1, 

2009 was $1,803.92 a week. 

On April 8, 2010 appellant underwent closed manipulation of the right shoulder under 

anesthesia, approved by OWCP. She received compensation at the May 1, 2009 pay rate as of 

March 23, 2010. Appellant remained off work pending additional surgery. On September 8, 

2010 she underwent a plasma graft into the right lateral epicondylar area, and on September 16, 

2010 underwent arthroscopic decompression of the right shoulder and rotator cuff repair. 

Appellant remained off work through October 18, 2010 and received total disability 

compensation. She returned to part-time modified duty for six hours a day on October 19, 2010. 

Appellant continued to receive wage-loss compensation for the remaining hours at the 

February 11, 2009 pay rate. 

On December 3, 2010 OWCP expanded the claim to accept the newly diagnosed 

conditions of adhesive capsulitis of both shoulders and left lateral epicondylitis. Appellant 

stopped work on December 20, 2010. OWCP continued to issue total disability compensation at 

the February 11, 2009 rate of $1,803.92 a week through January 28, 2011. 

On February 4, 2011 appellant underwent a plasma graft injection to the left lateral 

epicondylar area, approved by OWCP. She returned to part-time modified duty on February 9, 

2011, working four hours a day on Mondays, Wednesdays, and Fridays, and eight hours a day on 
3

Tuesdays and Thursdays. OWCP paid compensation for the remaining hours through March 25, 

2011, using the February 11, 2009 pay rate. 

On April 14, 2011 appellant underwent arthroscopic subacromial decompression of the 

left shoulder, approved by OWCP. 

In an April 20, 2011 payment log note, OWCP explained that appellant was “entitled to 

pay rate of February 11, 2009 but was paid using May 1, 2009 which prevented her from getting 

CPIs [consumer price index increases] for the first year.” It calculated that she was paid $733.80 

but owed $758.85, a difference of $25.05. 

Appellant remained off work through May 27, 2011. She received compensation at the 

February 11, 2009 pay rate.2 On June 6, 2011 appellant returned to full-duty work for four hours 

a day. As of September 1, 2011, she worked two hours a day, then four hours a day as of 

December 5, 2011. OWCP continued to pay compensation based on the February 11, 2009 pay 

rate through February 10, 2012. 

On February 9, 2012 appellant underwent closed manipulation of the left shoulder under 

anesthesia, approved by OWCP. She returned to work in mid-February 2012 for four hours a 

day. OWCP continued to pay compensation at the February 11, 2009 rate for the remaining four 

hours a day. 

Appellant returned to full-time modified-duty work as of July 9, 2012. She again stopped 

work on August 24, 2012. Appellant retired from the employing establishment on August 25, 

2012, the date that the Office of Personnel Management (OPM) approved her application for 

disability retirement benefits.3

On November 20, 2012 appellant claimed a schedule award. She provided an 

October 25, 2012 impairment rating by Dr. Timothy L. Moore, an osteopathic physician Boardcertified in osteopathic manipulation, who opined that appellant had attained maximum medical 

improvement as of that day. Dr. Moore found 14 percent impairment of the right upper 

extremity and 12 percent impairment of the left upper extremity according to the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment. On 

December 20, 2012 an OWCP medical adviser reviewed Dr. Moore’s report and concurred with 

his impairment ratings and the determination of maximum medical improvement. 

By decision dated January 2, 2013, OWCP granted appellant a schedule award for 14 

percent permanent impairment of the right arm and 12 percent impairment of the left arm. The 

 2

 In a June 9, 2011 note, OWCP stated that appellant was entitled to compensation at the February 11, 2009 rate 

but that the payment system defaulted to the May 1, 2009 rate. This resulted in an underpayment of $83.50 for the 

period April 30 to May 13, 2011. 

3

 In October 2012 appellant relocated from California to Nevada. She requested that OWCP approve a change of 

physicians. By decision dated May 29, 2013, OWCP denied appellant’s request to change physicians. Following a 

telephonic hearing, by decision dated and finalized January 31, 2014, it affirmed its May 29, 2013 decision denying 

appellant’s request to change physicians. 
4

period of the award ran from October 25, 2012 to May 15, 2014. OWCP based the schedule 

award on appellant’s February 11, 2009 pay rate of $1,803.92 a week.4

In a June 7, 2014 letter received on July 16, 2014, appellant requested reconsideration of 

the January 2, 2013 schedule award decision. She asserted that OWCP erred by basing the pay 

rate on her February 9, 2009 salary of $1,803.92 a week instead of her wages closer to 

October 25, 2012, the date that her physician and OWCP concurred that she reached maximum 

medical improvement. Appellant submitted an August 31, 2014 earnings and leave statement 

showing that as of her retirement on August 24, 2014, her pay rate was $1,882.00 a week.5

By decision dated September 29, 2014, OWCP denied appellant’s request for 

reconsideration on the grounds that it was not timely filed and failed to present clear evidence of 

error. It found that her request for reconsideration was received on July 16, 2014, more than one 

year following the January 2, 2013 merit decision. OWCP also found that appellant’s letter and 

the earnings and leave statement did not establish legal or factual error by OWCP. 

LEGAL PRECEDENT 

Section 8128(a) of FECA6

 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.7 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.8

 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP 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.9 The Board has found that the imposition 

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

granted OWCP under 5 U.S.C. § 8128(a).10

 4

 On April 23, 2013 appellant requested that OWCP expand her claim to include bilateral medial epicondylitis, 

cubital tunnel syndrome, left radial tunnel syndrome, bilateral carpal tunnel syndrome, and bilateral Guyon’s canal 

syndrome sustained on or before August 24, 2012. She also contended that she sustained a recurrence of disability 

on August 24, 2012. OWCP denied appellant’s recurrence claim and the additional upper extremity conditions by 

decisions issued May 29, September 26, 2013, January 31, and July 9, 2014. These decisions are not before the 

Board on the present appeal as they were issued more than 180 days prior to January 26, 2015, the date appellant 

filed her appeal. 20 C.F.R. §§ 501.2(c) and 501.3. 

5

 On August 4, 2014 appellant filed an appeal from the January 2, 2013 OWCP decision. By order issued 

March 12, 2015, the Board dismissed the appeal as it was not filed within 180 days of the January 2, 2013 decision. 

Docket No. 14-1706 (issued March 12, 2015). 

6

 5 U.S.C. § 8128(a). 

7 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

8 Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

9

 20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority; 

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

10 5 U.S.C. § 10.607(b); supra note 7; supra note 8. 
5

 In those cases where requests for reconsideration are untimely filed, OWCP must 

nevertheless undertake a limited review of the case to determine whether there is clear evidence 

of error pursuant to the untimely request in accordance with section 10.607(b) of its 

regulations.11 Its regulations state that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in its regulations, if the claimant’s request 

for reconsideration shows “clear evidence of error” on the part of OWCP.12

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

which was decided by OWCP.13 The evidence must be positive, precise, and explicit and must 

be manifest on its face that OWCP committed an error.14 Evidence which does not raise a 

substantial question concerning the correctness of its decision is insufficient to establish clear 

evidence of error.15 It is not enough merely to show that the evidence could be construed so as to 

produce a contrary conclusion.16 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 by OWCP.17 The Board must make an 

independent determination of 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.18

Section 8107 of FECA provides that schedule award compensation for permanent 

impairment of a scheduled member shall be based on the employee’s “monthly pay.”19 Such 

compensation is to be based on the pay rate as determined under section 8101(4) which defines 

“monthly pay” as “[t]he monthly pay at the time of injury, or the monthly pay at the time 

disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence 

begins more than six months after the injured employee resumes regular full-time employment 

with the United States, whichever is greater....”20 

 11 Supra note 7. 

12 20 C.F.R. § 10.607(b). 

13 Supra note 7. 

14 Leona N. Travis, 43 ECAB 227 (1991). 

15 Jesus D. Sanchez, supra note 8. 

16 Supra note 14. 

17 Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

18 Gregory Griffin, supra note 9; G.G., Docket No. 13-1886 (issued February 12, 2014). Cf. B.K., 59 ECAB 228 

(2007) (where the claimant submitted a request for a schedule award based on new and current medical evidence, 

OWCP would be required to issue a decision on the schedule award claim rather than adjudicate an application for 

reconsideration). 

19 5 U.S.C. § 8107(a). 

20 Id. at § 8101(4). 
6

The Board has held that where an injury is sustained over a period of time, as in the 

present case, the date of injury is the date of last exposure to those work factors causing injury.21 

Applying this principle to schedule award claims, the Board has held that the date of injury is the 

date of the last exposure which adversely affects the impairment because every exposure which 

has an adverse effect (an aggravation) constitutes an injury.22 OWCP must determine both the 

date of last exposure to employment factors and the date of the supporting medical evaluation 

upon which the degree of permanent impairment is determined.23 In a case where a claimant 

continues to be exposed to injurious work factors and the medical evidence documents continued 

worsening of the claimed condition, OWCP selects the date of last exposure to injurious work 

factors as the date of injury.24 

ANALYSIS 

In its September 29, 2014 decision, OWCP properly determined that appellant failed to 

file a timely application for review of the January 2, 2013 merit decision. Appellant requested 

reconsideration by July 7, 2014 letter, received by OWCP on July 16, 2014, more than one year 

from the issuance of the January 2, 2013 merit decision. OWCP denied the request by 

September 29, 2014 decision as it was untimely filed and failed to present clear evidence of 

error. As the July 16, 2014 reconsideration request was untimely filed, it must next be 

determined whether appellant’s request demonstrated clear evidence of error in OWCP’s 

January 2, 2013 merit decision. 

The Board finds that appellant has not demonstrated clear evidence of error on the part of 

OWCP in issuing its January 2, 2013 schedule award decision. Appellant did not submit the type 

of positive, precise, and explicit evidence which manifests on its face that OWCP committed an 

error.25 

In her June 7, 2014 letter received on July 16, 2014, appellant requested reconsideration 

of the June 2, 2013 schedule award determination and challenged the pay rate used for 

compensation purposes in that decision. She noted that OWCP based the award on her pay rate 

as of February 11, 2009, the date that disability began, but argued that her compensation should 

have been based on her pay as of August 24, 2012, as this was closest to her attainment of 

maximum medical improvement on October 25, 2012. 

Appellant’s argument does not show clear evidence of error in the pay rate upon which 

OWCP relied in the January 2, 2013 schedule award. She alluded to principles of law regarding 

schedule award pay rates without explaining how they would apply to the particular facts of her 

case. Appellant did not explain why her August 24, 2012 pay rate should be controlling. She 

 21 Sherron A. Roberts, 47 ECAB 617 (1996). 

22 Barbara A. Dunnavant, 48 ECAB 517 (1997). 

23 Id. 

24 G.L., Docket No. 12-1795 (issued September 24, 2013). 

25 J.C., Docket No. 14-905 (issued April 23, 2015). 
7

did not discuss the medical evidence or explain that it demonstrated continued injurious 

exposures through August 24, 2012, such that she would be entitled to the later pay rate in 

calculating the schedule award. 

For these reasons, appellant’s argument does not raise a substantial question concerning 

the correctness of OWCP’s January 2, 2013 decision. OWCP properly determined that appellant 

did not show clear evidence of error in that decision.26

On appeal, appellant contends that OWCP erred by calculating the amount of the 

schedule award using her pay rate as of February 11, 2009. As set forth above, this argument 

does not establishment clear evidence of error in OWCP’s January 2, 2013 schedule award. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of the claim as her request was untimely filed and failed to present clear 

evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 29, 2014 is affirmed. 

Issued: August 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 26 Id.