United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE-REGULAR 

EMPLOYEE FUNCTIONS, Asheville, NC, 

Employer 

__________________________________________ 

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Docket No. 15-0280 

Issued: November 18, 2015 

Appearances: Case Submitted on the Record

Timothy Welborn, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 19, 2014 appellant, through counsel, filed a timely appeal of an October 6, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from August 6, 2012, the date of the most recent OWCP merit decision on 

the disputed issue, to the date 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 appellant’s claim. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for 

reconsideration of the merits as his request was untimely filed and failed to demonstrate clear 

evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 17, 2010 appellant, then a 60-year-old engineer equipment operator, was 

injured when he felt a sharp pain in his left elbow, radiating down to the arm and hand when he 

struck a machine with a hammer. OWCP accepted the claim for sprain of the left elbow and 

forearm; lateral epicondylitis; and other specified disorder of bursae and tendons in the left 

shoulder. Appellant underwent authorized surgery on June 29, 2011 for left extensor carpi 

radialis brevis release and debridement by the attending physician, Dr. Christopher Bensen, a 

Board-certified orthopedic surgeon. He did not return to work after the surgery. Appellant 

received compensation benefits. 

In a report dated November 15, 2011, Dr. Bensen treated appellant for complaints of pain 

and indicated that appellant remained disabled. He also recommended a second opinion 

examination as he was uncertain of the etiology of appellant’s symptoms. 

On November 22, 2011 OWCP referred appellant to Dr. Harrison Latimer, a Boardcertified orthopedic surgeon, for a second opinion. In a December 19, 2011 report, Dr. Latimer, 

noted appellant’s history and examined him. He determined that appellant had full range of 

motion of these joints passively, showed no effort whatsoever actively during the examination. 

Dr. Latimer determined that the work-related conditions had not resolved as appellant had 

residual left elbow symptoms due to sprain/strain of underlying epicondylitis changes, based 

upon subjective complaints of pain. However, he opined that appellant had reached maximum 

medical improvement and was capable of returning to the date-of-injury job. Dr. Latimer further 

explained that, while it was not uncommon for patients to have some residual symptoms after 

lateral elbow surgery, appellant’s lack of participation in the motion and strength examination of 

the entire left arm had no medical rationale and showed extreme evidence of symptom 

exaggeration. 

On February 2, 2012 OWCP proposed to terminate wage-loss compensation benefits 

based on the report of Dr. Latimer which established that appellant could return to his date-ofinjury position.2

 Appellant was provided 30 days to submit additional evidence or argument in 

support of any objection to the proposed termination. 

The record reflects that appellant returned to full-duty work on February 27, 2012. 

In an April 11, 2012 decision, OWCP terminated appellant’s wage-loss compensation, 

effective that date. It found that the weight of the medical evidence rested with the second 

opinion physician, Dr. Latimer who found that appellant was no longer disabled as a result of his 

August 17, 2010 traumatic injury. 

 2

 OWCP specifically noted that Dr. Latimer opined that: “your work-related conditions have not resolved; that 

you have residual left elbow symptoms due to sprain/strain of underlying epicondylitis changes, based on your 

subjective complaints of pain. However, you have reached maximum medical improvement and based on the 

physical requirements of an Engineer Equipment Operator as enumerated in the statement of accepted facts; you are 

completely capable of returning to your date-of-injury job as such.” 
3

On April 30, 2012 appellant requested an examination of the written record and 

submitted additional evidence. 

In a letter dated June 20, 2012 addressed to the employing establishment, OWCP 

requested comments from the employing establishment and explained that appellant had 

requested an examination of the written record. 

On July 17, 2012 OWCP received additional submissions from appellant through her 

United States Senator. This included a June 11, 2012 letter to appellant from Mark Mallette, a 

maintenance mechanic supervisor with the employing establishment. Mr. Mallette informed 

appellant that he had determined that the employing establishment was unable to accommodate 

his restrictions. He noted restrictions provided by appellant’s physician, Dr. Bensen, and advised 

that the employing establishment was unable to restructure or delete the essential functions of an 

engineering equipment operator without undue hardship and he could not identify any 

identifiable position to which appellant could be reassigned. Mr. Mallette advised appellant that 

his request for a reasonable accommodation was denied. He indicated that appellant could use 

any accrued leave or apply for leave without pay under the Family Medical Leave Act. 

In an August 6, 2012 decision, an OWCP hearing representative affirmed the April 11, 

2012 decision, which terminated appellant’s wage-loss compensation, effective that date.3

 He 

did not address the July 17, 2012 submissions. 

Counsel requested reconsideration on August 8, 2013. He argued that the August 6, 2012 

decision terminating appellant’s wage loss was made in part because appellant had returned to 

work on February 27, 2012. However, counsel explained that appellant was unable to fully 

perform the duties associated with the job. He advised that, by March 22, 2012, appellant was 

unable to perform the essential functions of his job, and that on June 11, 2012 appellant’s request 

for accommodation was denied. Counsel indicated that the decision to terminate appellant was 

based upon an incorrect assumption that appellant was able to work. He argued that the treating 

physician, Dr. Benson, clarified that appellant was unable to perform three of the five essential 

functions of his job. Additionally, counsel argued that it was error to accord great weight to the 

second opinion physician, who only examined appellant once, as opposed to his treating 

physician. 

OWCP received additional medical evidence, including several later reports from 

Dr. Benden. It also received: several CA-7 forms for wage-loss compensation; a June 11, 2012 

letter from the employing establishment pertaining to appellant’s request for a reasonable 

accommodation and a description of the duties of an engineering equipment operator; a 

September 9, 2012 letter to appellant’s United States Senator; and an October 7, 2012 response 

from appellant to OWCP’s recurrence questionnaire, in which he indicated that he had to leave 

his job because the employing establishment could not accommodate his restrictions. It also 

received a letter dated February 12, 2013, in which counsel requested that Dr. Bensen provide an 

updated medical report. 

 3

 On August 29, 2012 OWCP granted appellant a schedule award of five percent permanent impairment to the left 

arm. 
4

In an October 6, 2014 decision, OWCP denied appellant’s request for reconsideration as 

it was not timely filed and failed to present clear evidence of error. 

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.4

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.5

 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6

 OWCP may not deny a reconsideration request solely on the grounds that it was not 

timely filed. When a claimant’s application for review is not timely filed, OWCP must 

nevertheless undertake a limited review to determine whether it establishes clear evidence of 

error. If an application demonstrates clear evidence of error, OWCP will reopen the case for 

merit review.7

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 

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial 

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

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

produce a contrary conclusion. 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.8 To show clear 

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

a conflict in the 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. The Board makes 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.9

 4 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

5

 20 C.F.R. § 10.607(a). 

6 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

7 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of 

error” is intended to represent a difficult standard). 

8 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001). 

9 Id.
5

ANALYSIS 

In its October 6, 2014 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It rendered its last merit decision regarding the termination of 

wage-loss compensation on August 6, 2012. The reconsideration request of counsel was 

received on August 8, 2013, more than one year after the August 6, 2012 merit decision and was, 

therefore, untimely. 

The Board finds that the evidence submitted in the untimely request for reconsideration 

raises a substantial question as to the correctness of OWCP’s decision and is sufficient to 

demonstrate clear evidence of error. 

On reconsideration, counsel argued that evidence in the record established that appellant 

was unable to fully perform the duties associated with the job. The Board has reviewed the 

record and the August 6, 2012 decision. The Board notes that prior to issuing the August 6, 2012 

decision, OWCP had received documentation in which the employing establishment had advised 

appellant that it could no longer accommodate his restrictions effective June 11, 2012. There is 

no indication that the hearing representative considered this submission. 

Board precedent requires OWCP to review all evidence submitted by a claimant and 

received by it prior to the issuance of its final decision, including evidence received on the date 

of the decision.10 It makes no difference that the claims examiner may not have been directly in 

possession of the evidence. Indeed, Board precedent envisions evidence received by OWCP but 

not yet associated with the case record when the final decision is issued. The Board finds that 

OWCP committed error when it failed to review the documentation from the employing 

establishment dated June 11, 2012 which advised appellant that they were unable to 

accommodate his restrictions.11 

Consequently, the Board finds that appellant has shown clear evidence of error on the 

part of OWCP such that OWCP erred in denying merit review. 

CONCLUSION 

The Board finds that appellant has established clear evidence of error in the August 6, 

2012 decision and thus OWCP improperly denied his request for reconsideration. 

 10 See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not 

consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994) 

(applying Couch where OWCP did not consider a medical report received on the date of its decision). 

11 Thu M. McGill, Docket No. 98-1867 (issued July 14, 2000); see also Ruth Hickman, Docket No. 91-831 (issued 

July 31, 1991). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 6, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed.12

Issued: November 18, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board 

 12 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.