United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.J., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

NORTH TEXAS HEALTH CARE SYSTEM, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 15-1797 

Issued: April 7, 2016 

Appearances: Case Submitted on the Record

Michael E. Woods, 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 August 31, 2015 appellant, through his representative, filed a timely appeal of an 

August 19, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from the last merit decision, dated July 30, 2014, 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 to review the merits of the claim. 

ISSUE 

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

the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal appellant’s representative contends that the impartial medical adviser was 

improperly selected because his primary location was outside appellant’s zip code cluster and 

beyond the 200 mile maximum radius allowed. He also asserts that the only documents 

 1

 5 U.S.C. § 8101 et seq. 
2

establishing the use of the medical management system is a Form ME023 on such evidence is 

insufficient. 

FACTUAL HISTORY 

On May 24, 2005 appellant, then a 24-year-old medical support assistant, filed an 

occupational disease claim (Form CA-2) alleging that he developed right cervical disc bulge and 

right arm pain due to his employment duties. His attending physician, Dr. Douglas S. Won, a 

Board-certified orthopedic surgeon, found that appellant was totally disabled through 

May 12, 2005. On July 7, 2005 OWCP accepted his claim for right carpal tunnel syndrome. 

Appellant’s attending physician, Dr. Ronald J. Washington, an internist, completed a 

series of reports diagnosing right carpal tunnel syndrome beginning on September 12, 2005. He 

noted that appellant was disabled on June 1, 2005 as he was unable to perform his light-duty 

position as it worsened his symptoms. By decision dated October 17, 2006 OWCP authorized 

compensation benefits beginning June 1, 2005. 

OWCP referred appellant for a second opinion evaluation with Dr. Robert M. Chouteau, 

a Board-certified orthopedic surgeon on June 29, 2007. In a report dated July 17, 2007, 

Dr. Chouteau noted that his examination of appellant was normal and that appellant showed no 

evidence of disability based on the accepted diagnosis of right carpal tunnel. He opined that 

appellant could return to full duty with no restrictions. 

Dr. Washington disagreed with Dr. Chouteau’s conclusions on August 16, 2007 and 

noted that appellant’s electrodiagnostic studies supported his ongoing carpal tunnel syndrome 

condition. 

Due to the conflict of medical opinion evidence, OWCP referred appellant to Dr. James 

Hood, a Board-certified orthopedic surgeon on September 6, 2007. In his October 3, 2007 

report, Dr. Hood found positive median compression test, positive Phalen’s test, and decreased 

two-point discrimination. He found that appellant could return to light-duty work, but 

recommended carpal tunnel release and decompression of the right shoulder. 

Appellant underwent a right carpal tunnel surgical release on November 16, 2007. 

Following this surgery, Dr. Washington provided work restrictions. Beginning on January 15, 

2009 Dr. Washington removed the work restrictions. 

On August 3, 2009 OWCP referred appellant for a second opinion evaluation with 

Dr. Arthur Sarris, a Board-certified orthopedic surgeon, to determine the nature and extent of 

appellant’s disability. In a report dated August 27, 2009, Dr. Sarris opined that appellant 

continued to experience residuals and disability due to his accepted right carpal tunnel syndrome. 

He found that appellant was totally disabled. 

Dr. Washington continued to diagnose right carpal tunnel syndrome and indicate that 

appellant was totally disabled throughout 2009, 2010, and 2011. Appellant’s surgeon, 

Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon, also supported appellant’s continued 

carpal tunnel syndrome and disability for work on June 30, 2011. 
3

On September 28, 2011 OWCP referred appellant for a second opinion report with 

Dr. Marvin E. Van Hal, a Board-certified orthopedic surgeon, to determine the nature and extent 

of appellant’s disability. In a report dated December 13, 2011, Dr. Van Hal found that the 

Phalen’s test and Tinel’s sign were negative. He noted that appellant’s two-point discrimination 

was normal. Dr. Van Hal opined that appellant was not disabled due to his accepted condition of 

carpal tunnel syndrome. He found no objective evidence of residuals. 

Dr. Washington reviewed Dr. Van Hal’s report on February 9 and March 8, 2012 and 

disagreed with his findings and conclusions. 

To resolve the conflict in medical opinion, OWCP selected Dr. Charles Kennedy, a 

Board-certified orthopedic surgeon, to serve as the impartial medical examiner through an 

ME023 dated December 3, 2012. There was also a screen capture of his selection. On 

December 5, 2012 OWCP referred appellant for an impartial medical examination with 

Dr. Kennedy. 

In a report dated December 28, 2012, Dr. Kennedy found that appellant was not disabled 

and no longer exhibited right carpal tunnel syndrome. He opined that appellant could return to 

his regular-duty position. 

By letter dated March 14, 2013, OWCP proposed to terminate appellant’s wage-loss 

compensation based on Dr. Kennedy’s report. It afforded appellant 30 days to respond. 

By decision dated April 24, 2013, OWCP terminated appellant’s wage-loss benefits 

effective April 7, 2013 based on Dr. Kennedy’s report. 

Dr. Washington continued to support appellant’s diagnosis of right carpal tunnel 

syndrome and his disability for work. 

On July 30, 2014 OWCP granted appellant a schedule award for five percent permanent 

impairment of the right upper extremity. 

Dr. Washington continued to support appellant’s diagnosis of right carpal tunnel 

syndrome and his disability for work throughout 2014. Appellant sought treatment from 

Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon beginning February 19, 2015. He 

noted that appellant underwent right shoulder surgery on January 19, 2015. Dr. Shade diagnosed 

impingement syndrome right shoulder surgically treated, cervical radiculopathy C5-6, bilateral 

carpal tunnel syndrome, and bilateral cubital tunnel syndrome. 

OWCP issued a decision dated May 7, 2015 accepting the additional conditions of 

brachial neuritis or radiculitis, and a right shoulder condition. Appellant completed a claim for 

compensation (Form CA-7) requesting wage-loss compensation from April 7, 2013 through 

May 14, 2015. In a letter dated May 19, 2015, OWCP informed appellant that the additional 

conditions were accepted in error and requested that appellant submit a new claim. 

Dr. Shade completed an attending physician’s report (Form CA-20) on May 13, 2015 and 

opined that appellant was totally disabled. He diagnosed right carpal tunnel syndrome, brachial 

neuritis or radiculitis, and condition of the right shoulder. Dr. Shade indicated with a checkmark 
4

“yes” that appellant’s conditions were due to his employment. In a separate narrative report, he 

attributed appellant’s diagnosed conditions to his employment duties of eight hours of computer 

repetitive keying, telephone usage, repetitive motions, inserting data in the computer, simple 

grasping, and prolonged sitting. Dr. Shade continued to diagnose carpal tunnel syndrome, 

brachial neuritis, and right shoulder condition. 

In a letter dated June 15, 2015, appellant’s representative requested a copy of documents 

showing the bypass and selection process for referee physician Dr. Kennedy. In a letter dated 

June 16, 2015, OWCP provided the requested information. 

On June 29, 2015 appellant’s representative requested reconsideration of the April 24, 

2013 termination decision. He argued that Dr. Kennedy was improperly selected as the impartial 

medical adviser. In support of this request, the representative submitted Dr. Kennedy’s 

physician profile from the Texas medical board. He also alleged that appellant was allowed less 

than 30 days to respond to the pretermination notice. 

Appellant continued to submit reports from Dr. Shade dated June 18 through 

July 24, 2015. Dr. Shade listed appellant’s diagnosed conditions of right carpal tunnel 

syndrome, brachial neuritis, and right shoulder impingement. He did not address appellant’s 

disability for work. 

By decision dated August 19, 2015, OWCP declined to reopen appellant’s claim on the 

merits. It noted that he disagreed with the selection of Dr. Kennedy. OWCP asserted that the 

Medical Management Application system was appropriately utilized in selecting Dr. Kennedy. It 

further noted that appellant contended that the effective date of termination was prior to the 

issuance of the termination decision, that OWCP granted appellant compensation benefits 

through May 4, 2014, and that therefore appellant’s compensation benefits should not have 

terminated until May 5, 2013. OWCP declined to reopen appellant’s claim for consideration of 

the merits. 

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.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, 20 C.F.R. § 10.607(a) provides that 

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.3

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. The one-year period begins on 

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607(a). 
5

the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board, but does not 

include prerecoupment hearing decisions.4 Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the Integrated Federal Employees 

Compensation System (iFECS)). If the request for reconsideration has a document received date 

greater than one year, the request must be considered untimely.5

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of it in its most recent merit decision. The application must 

establish, on its face, that such decision was erroneous.6

The term clear evidence of error is intended to represent a difficult standard. If clear 

evidence of error has not been present, OWCP should deny the application by letter decision, 

which includes a brief evaluation of the evidence submitted and a finding made that clear 

evidence of error has not been shown.7

ANALYSIS 

The most recent adverse decision reviewing the merits of appellant’s case was OWCP’s 

April 24, 2013 decision. The appeal rights attached to that decision explained that appellant had 

one calendar year from the date of that decision, or until April 24, 2014, to submit to OWCP a 

reconsideration request. 

OWCP received appellant’s request for reconsideration on June 29, 2015. As the 

received date was more than one year after April 24, 2013, appellant’s request must be 

considered untimely. The proper standard of review for an untimely reconsideration request is 

the clear evidence of error standard. 

In denying appellant’s reconsideration request, OWCP did not determine whether 

appellant’s reconsideration request was untimely filed and did not review the request under the 

clear evidence of error standard. Rather, it applied the standard of review for timely requests for 

reconsideration. As OWCP applied the inappropriate standard of review to the untimely request 

for reconsideration, the Board will set aside OWCP’s August 19, 2015 decision and remand the 

case for proper review under the clear evidence of error standard as required by regulations.8

 4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (October 2011). 

5 Id. 

6

 20 C.F.R. § 10.607. 

7 Supra note 4 at Chapter 2.1602.5.a (October 2011). 

8 See 20 C.F.R. § 10.607(b). See W.L., Docket No. 15-1842 (issued January 14, 2016); L.D., Docket No. 15-0865 

(issued October 6, 2015). 
6

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s June 29, 2015 reconsideration 

request under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further review under 

the clear evidence of error standard. 

Issued: April 7, 2016 

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