United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.V., Appellant

and 

U.S POSTAL SERVICE, LOGISTICS & 

DISTRIBUTION CENTER, Kearny, NJ, Employer 

__________________________________________ 

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Docket No. 14-1210 

Issued: September 16, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 30, 2014 appellant, through counsel, filed a timely appeal of an April 8, 2014 

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

180 days has elapsed from the last merit decision, dated April 30, 2012, 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 as it 

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

FACTUAL HISTORY 

This case has previously been before the Board on appeal. On July 8, 2008 appellant, 

then a 50-year-old mail handler and equipment operator, filed an occupational disease claim 

alleging that he developed bilateral hearing loss due to noise exposures during his federal 

 1

 5 U.S.C. § 8101 et seq. 
2

employment. He submitted medical evidence in support of his claim from Dr. Laura L. Downey, 

a Board-certified otolaryngologist. 

OWCP referred appellant for a second opinion evaluation with Dr. Chong S. Kim, a 

Board-certified otolaryngologist. In a report dated November 24, 2008, Dr. Kim reviewed the 

statement of accepted facts and diagnosed hearing loss. He noted that appellant had a currently 

nonfunctioning ear of the left and mild-to-moderate sensorineural hearing loss of the right. 

Dr. Kim opined that appellant’s loss of hearing in his left ear was not employment related but 

due to his diabetes mellitus. 

By decision dated December 11, 2008, OWCP accepted appellant’s claim for 

sensorineural hearing loss on the right. It did not accept his hearing loss in the left ear. 

In a letter dated December 5, 2009, counsel requested reconsideration of the 

December 11, 2008 decision and argued that appellant’s claim should include hearing loss in the 

left ear. Appellant’s physician continued to support that appellant’s loss of hearing in his left ear 

was due, in part, to noise exposure. 

By decision dated August 17, 2010, OWCP reviewed appellant’s claim on the merits and 

found that Dr. Kim’s report was entitled to the weight of the medical evidence and denied 

modification of its prior decision finding no employment-related loss of hearing in the left ear. 

Appellant filed a Board appeal on September 20, 2010. The Board issued its decision on 

July 15, 2011,2

 finding a conflict of medical opinion evidence between Drs. Downey and Kim 

and remanded the case to OWCP to refer appellant, a statement of accepted facts, and a list of 

specific questions to a Board-certified otolaryngologist to determine if his loss of hearing in the 

left ear is related in any degree to his accepted employment-related noise exposure and if so, 

whether there was any permanent impairment. The facts and the circumstances of the case up to 

this point as set out in the Board’s prior decision are adopted herein by reference. 

Following the Board’s decision, OWCP referred appellant for an impartial medical 

examination with Dr. Anthony DeGennaro, a Board-certified otolaryngologist. In a report dated 

October 25, 2011, Dr. DeGennaro reviewed appellant’s history of noise exposure and his 

medical history. He diagnosed a mixed hearing loss in the left ear manifested by a 25-decibel 

air-bone gap, primarily in the lower mid-frequency range with absent stapedial reflexes. 

Dr. DeGennaro stated that the findings were consistent with bilateral hearing loss. He opined 

that appellant’s left ear was affected to a greater degree due to a conductive overlay secondary to 

otoscierosis. Dr. DeGennaro concluded that, “there are no findings on the audiometric testing 

which would connote an indirect hearing loss, due to [appellant’s] occupation specifically.” 

By decision dated November 17, 2011, OWCP denied appellant’s claim for loss of 

hearing in the left ear. It found that Dr. DeGennaro established that appellant’s left ear hearing 

loss was not work related. 

 2

 Docket No. 10-2363 (issued July 15, 2011). 
3

Counsel requested an oral hearing before an OWCP hearing representative on 

November 22, 2011. Appellant testified at the oral hearing on February 14, 2012. He stated that 

he required a hearing aid for his left ear and that his physician would review Dr. DeGennaro’s 

report. 

Dr. Bruce A. Edelman, a Board-certified otolaryngologist, completed a report on 

February 27, 2012 and noted appellant’s history of asymmetric sensorineural hearing loss and 

significant noise exposure at work. He noted appellant’s significant asymmetric discrimination 

and the issues of whether appellant had conductive component in his left ear and otosclerosis. 

Dr. Edelman noted appellant’s concurrent conditions of hypertension and diabetes. He found 

that both ears showed some sclerosis of the eardrums consistent with chronic inflammation of the 

eardrums over his lifetime. Dr. Edelman reviewed an audiogram which demonstrated an 

asymmetric hearing loss and diagnosed this condition. He noted that there was a no significant 

conductive component to appellant’s hearing loss. Dr. Edelman stated, “There is no question 

that he might have a high frequency sensorineural hearing loss ... secondary to noise exposure. I 

do not have a good explanation for his left-sided hearing loss. Whether there is any 

noise-induced hearing loss cannot be determined if he had a severe asymmetric loss which was 

relatively sudden in nature.” 

Appellant’s attending physician, Dr. Downey completed a report on March 4, 2012 and 

found deficiencies in Dr. DeGennaro’s report. She noted that appellant had severe-to-profound 

sensorineural loss on the left ear. Dr. Downey reported, “It is impossible to determine if there is 

an air-bone gap as bone conduction is vibrotactile at that level.” She noted that appellant had 

poor discrimination on the left ear. Dr. Downey opined that poor discrimination was not 

consistent with otosclerosis and therefore unlikely to be the primary cause of the neural loss on 

the left ear which was not congenital. 

By decision dated April 30, 2012, the hearing representative found that Dr. DeGennaro’s 

report was entitled to the weight of the medical opinion evidence and was sufficiently well 

rationalized to establish that appellant’s left ear hearing loss was not causally related to his 

employment. 

In a letter dated May 14, 2013, counsel stated that he had requested reconsideration on 

May 10, 2012. He included a copy of this request and submitted the reports from Dr. Edelman 

dated February 27, 2012 and Dr. Downey dated March 4, 2012. The initial request for 

reconsideration was dated May 10, 2012. On December 19, 2013 counsel asked when a decision 

on his reconsideration requests would be issued. On March 26, 2014 he again asked when his 

reconsideration requests would be addressed. 

By decision dated April 8, 2014, OWCP denied appellant’s requests for reconsideration 

as untimely filed and failing to establish clear evidence of error. 
4

LEGAL PRECEDENT 

Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.4

 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.5

 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 timely. 

In order to be timely, a request for reconsideration must be received by OWCP within one year 

of the date of its merit decision for which review is sought.6

 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).7

In those cases where requests for reconsideration are untimely filed, the Board has held 

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.8

 OWCP’s procedures state that it will 

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

in OWCP’s regulations, if the claimant’s request for reconsideration shows “clear evidence of 

error” on the part of OWCP.9

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

which was decided by OWCP.10 The evidence must be positive, precise, and explicit and must 

be manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

clear evidence of error.12 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.13 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.14 To show clear 

 3

 5 U.S.C. § 8128(a). 

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

5 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

6

 20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(October 2011). 

7 Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967. 

8 Supra note 4 at 770. 

9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, supra note 6. 

10 Supra note 4. 

11 Leona N. Travis, 43 ECAB 227, 241 (1991). 

12 Jesus D. Sanchez, supra note 5 at 968. 

13 Supra note 11. 

14 Nelson T. Thompson, 43 ECAB 919, 922 (1992). 
5

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.15 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. 

ANALYSIS 

The Board finds that OWCP properly declined to reopen appellant’s claim for 

consideration of the merits as the request was untimely filed and did not establish clear evidence 

of error. 

On prior appeal, the Board remanded this case for OWCP to develop whether appellant’s 

loss of hearing in his left ear was due to his employment by referral to an impartial medical 

examiner. OWCP undertook this development and found that the weight of the medical 

evidence did not establish an employment-related loss of hearing in the left ear. Appellant 

requested an oral hearing and the hearing representative agreed with this conclusion in a merit 

decision dated April 30, 2012. Accordingly, he had one year from April 30, 2012 to make a 

timely request for reconsideration. A right to reconsideration within one year accompanies any 

merit decision on the issues.16 

Appellant, through counsel, requested reconsideration by letter dated and received by 

OWCP on May 14, 2013. The Board finds that the copy of a May 10, 2012 document labeled 

“reconsideration” is not evidence that the document was received by OWCP. The record, at 

most, establishes that the document was prepared on that date. Thus, it is insufficient evidence 

to establish that a reconsideration request in this case was timely filed. As the request for 

reconsideration, dated May 14, 2013, was received more than one year after the April 30, 2012 

decision, the Board finds that OWCP properly found that this request for reconsideration was 

untimely on its face. Consequentially, appellant must demonstrate clear evidence of error by 

OWCP in denying his claim for compensation.17

 

 15 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 

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

17 20 C.F.R. § 10.607(b). 
6

In support of the reconsideration request, counsel resubmitted the March 4, 2012 report 

from Dr. Downey and the February 27, 2012 report from Dr. Edelman. Both of these reports 

were already of record and had been reviewed by OWCP.18 

In resubmitting this evidence, appellant failed to explain how it manifested on its face 

that OWCP committed an error in denying his claim for compensation. Resubmission of this 

evidence is insufficient to raise a substantial question as to the correctness of OWCP’s decision 

and thus is insufficient to show clear evidence of error. 

The Board finds that appellant has not submitted any evidence of sufficient probative 

value to shift the weight of the evidence in his favor and raise a substantial question as to the 

correctness of OWCP’s decision. Consequently, OWCP properly denied his reconsideration 

request as it did not establish clear evidence of error.19

CONCLUSION 

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

reconsideration was not timely filed and failed to establish clear evidence of error. 

 18 Z.T., Docket No. 15-0250 (issued July 16, 2015) (where the Board found that in a clear evidence of error case 

an appellant must explain how a repetitious medical report manifested on its face that OWCP committed an error in 

denying the claim for compensation because mere resubmission of the medical evidence only is not sufficient to 

raise a substantial question as to the correctness of OWCP’s decision and thus is insufficient to show clear evidence 

of error). See also A.C., Docket No. 14-1883 (issued January 26, 2015) (appellant did not explain how the 

resubmission of a medical report showed clear evidence of error).

19 See A.C., id. 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 8, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 16, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board