United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Austin, TX, Employer 

_________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1299 

Issued: November 24, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 21, 2015 appellant filed a timely appeal from an April 2, 2015 nonmerit decision 

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

OWCP’s most recent merit decision dated January 2, 2014, 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. 

ISSUE 

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

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

FACTUAL HISTORY 

On October 18, 2012 appellant, then a 42-year-old mail processing clerk, filed a 

traumatic injury claim (Form CA-1) asserting that on January 19, 2012 while working on a 

delivery bar code sorter (DBCS) machine for several hours she experienced arm and elbow pain. 

 1

 5 U.S.C. § 8101 et seq. 
2

OWCP accepted her claim for left elbow and forearm sprain and sprain of the neck. It 

authorized continuation of pay from January 20 to March 4, 2012. 

Appellant came under the treatment of Dr. Helo Chen, an osteopath, on November 16, 

2012 for a left elbow and neck injury. She reported that on January 19, 2012 she was operating a 

DBCS machine when she felt a sharp pain and swelling in her left elbow and neck. Dr. Chen 

noted that an electromyogram (EMG) dated June 4, 2012 revealed no abnormalities of the upper 

extremities. He diagnosed left elbow sprain, left elbow internal derangement, and cervical 

sprain. Dr. Chen returned appellant to work modified duty. 

Appellant submitted several claims for compensation (Form CA-7), for intermittent total 

disability for the period March 11 to July 27, 2012. 

In a decision dated June 5, 2013, OWCP denied appellant’s claims for compensation for 

the period March 11 to July 27, 2012 as the medical evidence of record failed to establish 

disability for work due to the employment injury of January 19, 2012. 

On June 13, 2013 appellant requested reconsideration and submitted additional medical 

evidence. 

In a decision dated September 4, 2013, OWCP vacated the decision dated June 5, 2013. 

It granted appellant’s claim for compensation for 469.50 hours for the period March 11 to 

July 27, 2012. Appellant subsequently filed additional claims for compensation (Form CA-7) for 

the period commencing September 15, 2013. 

Appellant submitted physical therapy notes from October 1 to December 27, 2013. She 

was treated by Dr. Chen on November 28, 2013 for a left elbow and neck condition that was the 

result of lifting trays of mail onto a DBCS machine. Dr. Chen noted that a magnetic resonance 

imaging (MRI) scan dated November 29, 2013 revealed a symmetrical bulging of the C4-5, 

C5-6, and C6-7 disc without lateralizing focal disc herniation, spinal stenosis, or neural 

compression. He noted that due to the extent of appellant’s condition she was physically 

disabled from September 15 to October 9, 2013. Dr. Chen noted that she continued to have 

ongoing physical disabilities related to the progressive degeneration of her left elbow and neck 

that originated from the work-related injury. He opined that appellant’s condition has 

continuously degenerated due to the residual effects of her injuries and he took her off work. 

Dr. Chen noted that the medical evidence supported that she was totally disabled from 

September 15 to October 9, 2013 due to her work-related injury on January 19, 2012. 

In a decision dated January 2, 2014, OWCP denied appellant’s claim for compensation 

for the period commencing September 15, 2013. 

Appellant submitted physical therapy notes from December 30, 2013 to 

November 14, 2014. She was treated by Dr. Bennett J. Ezekiel, a Board-certified orthopedist, 

from April 8, 2014 to February 19, 2015, for elbow pain which began after a work injury where 

she lifted mail trays. Dr. Ezekiel diagnosed elbow sprain, injury to the ulnar nerve, and cervical 

strain. He recommended a compound cream and a left ulnar nerve block. Dr. Ezekiel noted that 

appellant underwent nerve blocks on April 8, May 15 and 29 and July 10, 2015 and reported 

only temporary relief in her symptoms. Appellant was treated by Dr. Chen from May 7 to 
3

December 10, 2014 for work-related conditions to her left elbow, forearm, and cervical spine. 

She reported working as a clerk and developing left elbow, forearm, and cervical spine 

conditions as a result of operating a DBCS machine and lifting trays of mail onto the machine. 

Dr. Chen diagnosed left elbow, forearm, and neck sprain. He opined that appellant sustained 

consequential injuries causally related to the January 19, 2012 work injury of cervical disc 

degeneration and cervical disc displacement and formally requested an upgrade of her accepted 

conditions to include cervical disc degeneration, cervical disc displacement, left lateral 

epicondylitis, and left cubital tunnel syndrome. Dr. Chen opined that the effects of the work 

injury persist and have prevented her from returning to work full time. In reports dated July 29 

to December 10, 2014, he noted that appellant was disabled from September 15, 2013 to 

January 23, 2014 due to the progressive degeneration of her left elbow and neck that originated 

from her work injury. Dr. Chen opined that the medical evidence supported incapacitation from 

September 15 to October 9, 2013 was due to the work-related injury of January 19, 2012. 

In a decision dated October 2, 2014, OWCP denied appellant’s claim for a consequential 

cervical disc degeneration, cervical disc displacement, left lateral epicondylitis, and left cubital 

tunnel syndrome. 

In an appeal request form dated January 7, 2014 and received on March 18, 2015, 

appellant requested reconsideration of the January 2, 2014 decision. In an accompanying 

November 12, 2014 letter, she noted that her OWCP claim was in an open status and therefore 

her claims for compensation should be paid. 

Appellant submitted physical therapy notes from November 17, 2012 to April 3, 2015. 

An EMG dated August 18, 2014 revealed mild evidence of cervical radiculopathy at C5, C6 

nerve root level prominently on the right, no evidence to suggest entrapment neuropathy or 

myopathy. An October 13, 2014 MRI scan of the cervical spine revealed disc desiccation at all 

levels, disc space narrowing with osteophytes at C4-5, C5-6, and C6-7, and central canal and 

foramen at all levels. 

Appellant submitted a December 10, 2014 report from Dr. Chen who treated her for 

work-related conditions to her left elbow, forearm, and cervical spine. She reported a history of 

injury. Dr. Chen diagnosed left elbow, forearm, and neck sprain. He opined that appellant’s 

sustained consequential injuries relating to the January 19, 2012 work injury. Dr. Chen 

diagnosed cervical disc disease, cervical disc displacement, lateral epicondylitis, and cubital 

tunnel syndrome and opined that these conditions were causally related to the January 19, 2012 

work injury. In a duty status report dated October 9, 2014 to January 15, 2015, he diagnosed 

sprain of left elbow and neck and advised that appellant was totally disabled. In a duty status 

report dated February 16, 2015, Dr. Chen noted that she could return to work on February 16, 

2015 part time, three hours a day with restrictions. 

Appellant submitted nurses notes dated December 30, 2014 to February 25, 2015, who 

noted treatment for right-sided neck and left elbow pain secondary to a work injury on 

January 19, 2012. 
4

Appellant was treated by Dr. Ezekiel on February 17, 2015. Dr. Ezekiel noted that she 

could return to work on February 20, 2015. In reports dated February 5 and 19, 2015, he noted 

performing a right C4, C5, and C6 medial branch block. Dr. Ezekiel diagnosed cervical strain. 

By decision dated April 2, 2015, OWCP denied appellant’s request for reconsideration as 

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

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation: 

“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, decrease or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”2

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.3 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. To establish clear evidence of error, a claimant must submit evidence 

relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and 

explicit and must be manifest on its face that OWCP committed an error.4

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.5

 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.6

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

construed so as to produce a contrary conclusion.7 This entails a limited review by OWCP of the 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607(a). 

4 Id. at 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

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

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

7 Id.
5

evidence previously of record and whether the new evidence demonstrates clear error on the part 

of OWCP.8 The Board makes an independent determination as to whether a claimant has 

submitted clear evidence of error on the part of OWCP.9

ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. As noted, an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.10 As appellant’s request 

for reconsideration was not received by OWCP until March 18, 2015, more than one year after 

issuance of the January 2, 2014 merit decision, it was untimely. Consequently, she must 

demonstrate clear evidence of error by OWCP in its January 2, 2014 decision. 

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

OWCP. With her reconsideration request, appellant provided a November 12, 2014 letter in 

which she noted that her claim was in an open status and that her claims for wage-loss 

compensation should be paid. While she noted her disagreement with OWCP’s decision denying 

her claim for compensation, this does raise a substantial question as to the correctness of 

OWCP’s decision. This evidence is not so positive, precise, and explicit that it manifests on its 

face that OWCP committed an error. 

Appellant submitted a December 10, 2014 report from Dr. Chen who treated her for 

work-related injury to her left elbow, forearm, and cervical spine conditions. Dr. Chen attributed 

her condition to her operating a DBCS machine and lifting trays of mail onto the machine. He 

opined that appellant sustained consequential injuries causally related to the January 19, 2012 

work-related injury and opined that the effects of the work injury persisted and prevented her 

from returning to work full time. Dr. Chen also provided other reports noting appellant’s work 

status and restrictions. This evidence is insufficient to raise a substantial question as to the 

correctness of OWCP’s decision. Even though Dr. Chen noted appellant’s symptoms, diagnoses, 

and work status, he did not sufficiently address whether her current disability beginning 

September 15, 2013 was causally related to the accepted injuries. 

Appellant also provided 2015 treatment records from Dr. Ezekiel who noted her 

treatment and status. However, Dr. Ezekiel did not clearly address whether her disability 

beginning September 15, 2013 was causally related to the work injuries of January 19, 2012. 

Furthermore, even if these reports offered reasoned support for causal relationship, it would be 

insufficient to establish clear evidence of error. 

The Board notes that clear evidence of error is intended to represent a difficult standard. 

The submission of a detailed well-rationalized medical report which, if submitted before the 

 8 Id.

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 

10 20 C.F.R. § 10.607(a). 
6

denial was issued, would have created a conflict in medical opinion requiring further 

development, is not clear evidence of error.11 

Appellant submitted an EMG study dated August 18, 2014 and MRI scan report of the 

cervical spine dated October 13, 2014. However, these reports are insufficient to establish clear 

evidence of error as they do not address whether she had any disability after September 15, 2013 

causally related to the January 19, 2012 work injury. 

Appellant submitted physical therapy and nurse’s notes. The Board has held that 

treatment notes signed by nurse or physical therapists are not considered medical evidence as 

these providers are not considered physicians under FECA.12 Therefore, this evidence is not 

probative on regarding the underlying medical issue and is insufficient to establish clear 

evidence of error on the part of OWCP. 

Consequently, appellant has not established clear evidence of error by OWCP in its 

January 2, 2014 decision. 

On appeal, appellant reiterated assertions that she made before OWCP indicating that she 

disagreed with OWCP’s decision denying her claim for compensation. She asserted that she 

submitted sufficient evidence to support that her diagnosed condition was causally related to the 

accepted work-related events. However, as noted, the Board does not have jurisdiction over the 

merits of the claim. Appellant has not established clear evidence of error by OWCP. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and failed 

to establish clear evidence of error. 

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

12 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical 

therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a 

“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law). 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 2, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 24, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board