United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.N., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Fayetteville, NC, Employer 

__________________________________________ 

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Docket No. 15-649 

Issued: June 10, 2015 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 29, 2015 appellant, through counsel, filed a timely appeal of a December 3, 

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

merit decision in the matter was issued on January 14, 2011. Since more than 180 days elapsed 

since the date of the last merit decision and 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 determined that appellant’s application for 

reconsideration was untimely and failed to show clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case has been before the Board on prior appeals. Appellant filed a claim on 

January 3, 2006 alleging that she sustained a bilateral wrist condition causally related to her work 

as a patient services assistant. OWCP accepted the claim for bilateral carpal tunnel syndrome 

and a keloid scar. By decision dated August 16, 2012, the Board set aside an October 19, 2011 

OWCP decision denying a claim for a recurrence of disability from May 13 to June 5, 2010.2 

The Board found that OWCP had failed to address medical reports regarding her carpal tunnel 

syndrome. By decision dated July 29, 2014, the Board affirmed a May 24, 2013 OWCP decision 

denying the claim for compensation commencing May 13, 2010.3

 The Board found that 

appellant had not met her burden of proof. 

The Board has also reviewed OWCP decisions regarding travel reimbursement for 

medical treatment. In a decision dated May 21, 2013, the Board set aside a September 14, 2012 

OWCP decision denying appellant’s claim for reimbursement of travel expenses.4

 The Board 

found the record did not contain documentation regarding appropriate physicians closer to 

appellant’s home. By decision dated June 11, 2014, the Board affirmed a December 16, 2013 

OWCP decision denying reimbursement for travel expenses.5

 The Board found that OWCP did 

not abuse its discretion. 

With respect to a consequential injury, appellant submitted a letter dated April 26, 2010 

stating that she had been diagnosed with major depression and anxiety, and she wished to expand 

her claim. In a note dated April 28, 2010, Dr. Steven Dudley, a psychiatrist, stated that appellant 

needed to be out of work from May 6 to July 5, 2010 for treatment of her depression and anxiety 

secondary to her carpal tunnel syndrome. The note stated that appellant’s pain had become 

unbearable and she could not perform her job duties. Appellant also submitted reports from 

Dr. Donald Maharty, a Board-certified family practitioner, and May Ellen Lavoie, a social 

worker. In a report dated October 21, 2009, Dr. Maharty indicated that appellant’s chief 

complaint was stress over the prior three months. He diagnosed major depression, recurrent 

carpal tunnel syndrome, and hypertension. 

In a report dated July 12, 2010, Dr. Dudley reported that appellant was being treated for 

major depression and adjustment disorder with depression and anxiety. He reported that 

appellant had carpal tunnel syndrome and chronic pain when she performed work duties. 

Dr. Dudley found that the pain and change in level of functioning were the cause of appellant’s 

depression. In a note dated July 12, 2010, he responded to questions from OWCP and diagnosed 

major depressive disorder, moderate recurrent. Dr. Dudley indicated that appellant has carpal 

tunnel syndrome and that the pain caused by her job led to depression. 

 2

 Docket No. 12-687 (issued August 16, 2012). 

3

 Docket No. 13-909 (issued July 29, 2014). 

4

 Docket No. 13-50 (issued May 21, 2013). 

5

 Docket No. 14-575 (issued June 11, 2014). 
3

By decision dated September 21, 2010, OWCP found that the evidence was insufficient 

to establish a consequential emotional condition. 

In a letter dated October 22, 2010, appellant requested reconsideration. She submitted an 

October 20, 2010 report from Dr. Dudley diagnosing major depressive disorder, moderate 

recurrent. Dr. Dudley stated, “It appeared her diagnosis and dysfunction had been caused as a 

direct result of her injuries (i.e., carpal tunnel syndrome) incurred during the course of her 

employment.” Appellant also submitted an October 18, 2010 report from Dr. Maharty, who 

diagnosed major depression recurrent. As to the diagnosis, he stated, “Attribute to Carpal 

Tunnel issues. Secondary stressor of job stress.” 

By decision dated January 14, 2011, OWCP reviewed the merits of the claim. It found 

that the evidence of record was insufficient to warrant modification of the prior decision. 

In a letter dated December 1, 2014, received by OWCP on that date, appellant’s 

representative requested reconsideration. Appellant submitted two reports dated October 18, 

2011 from Dr. Dudley. One report simply stated that appellant was being treated for major 

depressive disorder and anxiety disorder. The second October 18, 2011 report opined that 

appellant was suffering from an emotional condition due to her carpal tunnel syndrome. 

Dr. Dudley stated that the triggering event appeared to be in May 2008, when appellant reported 

nightmares and the possibility of future worsening of her condition. He also referred to 

May 2009 when appellant had an issue regarding her headset. Dr. Dudley stated that the onset of 

the psychiatric condition was simultaneous with her carpal tunnel syndrome and there did not 

appear to be outside factors associated with appellant’s depression. 

By decision dated December 3, 2014, OWCP denied appellant’s request for 

reconsideration without merit review of the claim. It found that the request was untimely and 

failed to show clear evidence of error. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.6

 The 

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”7

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.8

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.9 OWCP, through 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.605 (2012). 

8 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

9

 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 
4

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA.10 As one such limitation, 20 C.F.R. § 10.607 provides that an application 

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

review is sought.11 OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The 

evidence must be positive, precise and explicit and must manifest on its face that OWCP 

committed an error.12 

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting 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 substantial question as to the correctness of OWCP’s decision.13 Evidence that 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 A determination of whether the claimant has 

established clear evidence of error entails a limited review of how the evidence submitted with 

the reconsideration request bears on the evidence previously of record.16

ANALYSIS 

In the present case, the last merit decision with respect to a consequential emotional 

condition was dated January 14, 2011. Appellant’s request for reconsideration was received on 

December 1, 2014. Since this is more than one year after the January 14, 2011 decision, it is 

untimely filed. 

As appellant’s request for reconsideration was untimely, appellant must show clear 

evidence of error by OWCP. The Board finds that appellant has not shown clear evidence of 

error in this case. Appellant submitted an October 18, 2011 report from Dr. Dudley. Clear 

evidence of error requires appellant to submit evidence of such probative value that it shifts the 

weight of the evidence in favor of the claimant and raises a substantial question as to the 

correctness of the challenged OWCP decision. The evidence from Dr. Dudley does not meet that 

standard. He reiterates his prior opinion that appellant’s depression was casually related to her 

accepted carpal tunnel syndrome. Dr. Dudley does not provide a complete history or a complete 

factual and medical background. He refers to events in May 2008 and May 2009, without clearly 

explaining their relationship to the employment injury. A consequential injury must be the direct 

 10 5 U.S.C. §§ 8101-8193. 

11 20 C.F.R. § 10.607 (2012). 

12 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

13 Annie L. Billingsley, 50 ECAB 210 (1998). 

14 Jimmy L. Day, 48 ECAB 652 (1997). 

15 Id. 

16 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 
5

and natural result of the primary injury, without an independent intervening cause which is 

attributable to the employee’s own conduct.17 Dr. Dudley does not provide a complete report 

that is sufficient to show clear evidence of error by OWCP. As noted above, even if the evidence 

can be construed to produce a conclusion contrary to OWCP’s determination, it is not clear 

evidence of error. 

The Board accordingly finds that OWCP properly denied merit review in this case. 

Appellant’s request for reconsideration was untimely filed and failed to show clear evidence of 

error. On appeal, appellant’s counsel states that Dr. Dudley raised a substantial question as to 

the correctness of OWCP’s decision. For the reasons noted above, the Board finds that appellant 

did not show clear evidence of error in this case. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s application for 

reconsideration was untimely filed and failed to show clear evidence of error. 

ORDER 

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

Compensation Programs dated December 3, 2014 is affirmed. 

Issued: June 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Carlos A. Marrero, 50 ECAB 117, 120 (1998); 1 A. Larson, The Law of Workers’ Compensation 

§ 10.01 (2002). See also Debra L. Dillworth, 57 ECAB 516, 519 (2006).