United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M. Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1748 

Issued: February 18, 2016 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 18, 2015 appellant, through her representative, filed a timely appeal of a 

July 20, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days have elapsed from May 21, 2014, the date of the most recent OWCP 

merit decision, to the filing of the current 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 her request was untimely filed and failed to demonstrate clear 

evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On March 14, 2013 appellant, then a 53-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that getting in and out of her vehicle, climbing on steps, and 

walking on uneven ground while delivering mail caused a complex right medial meniscus tear 

with osteoarthritis of the bilateral knees in the performance of duty.2

 She indicated that she 

became aware of the disease on August 3, 2010. Appellant stopped work on March 14, 2013. 

OWCP accepted the claim for aggravation of derangement of posterior horn of medial meniscus, 

right aggravation of localized primary osteoarthritis, lower leg, bilateral. Appellant accepted a 

modified limited-duty position on May 17, 2013. However, she stopped work on June 17, 2013.3 

Appellant received treatment from Dr. Grant Garlick a Board-certified orthopedic 

surgeon. In a June 14, 2013 report, Dr. Garlick noted her history of injury and treatment. He 

opined that he did not relate appellant’s condition to her work injury, but rather he determined 

that her condition was a “degenerative process and would develop regardless [of] her job as a 

letter carrier.” Dr. Garlick explained that the meniscus tear was a degenerative tear and did not 

appear to be traumatic. He noted that appellant “became very angry in the office and [stated 

that] this was a waste of [appellant’s] day and did storm out of the office prior to me discussing 

the entire plan with her.” Dr. Garlick opined that she might need some type of arthroplasty in the 

future, he did not believe that it would be of much benefit. He recommended that appellant 

follow up with him as needed. 

OWCP referred appellant for a second opinion examination with Dr. William Dinenberg, 

a Board-certified orthopedic surgeon. In an August 8, 2013 report, Dr. Dinenberg noted her 

history of injury and treatment and performed his examination. He diagnosed degenerative joint 

disease of bilateral knees, right greater than left and determined that appellant no longer had 

residuals or disability due to her injury. In particular, Dr. Dinenberg explained that her current 

physical examination findings, which included lateral and joint line tenderness, antalgic gait, and 

effusion, were related to her preexisting medial meniscus tear and bilateral osteoarthritis. He 

also indicated that appellant stopped work on June 29, 2013 and explained her aggravation 

would have ceased approximately four weeks after discontinuing work, and thus the aggravation 

would have ceased by August 1, 2013. 

On August 29, 2013 OWCP proposed to terminate appellant’s compensation. It found 

that she no longer had residuals or disability due to her injury. OWCP referred to the reports of 

appellant’s treating physician, Dr. Garlick and the second opinion physician, Dr. Dinenberg, who 

attributed her current disability to her preexisting conditions and found no residuals from the 

accepted August 3, 2010 work injury. 

 2

 The record reflects that appellant has preexisting or concurrent conditions to include right knee osteoarthritis 

medial compartment, osteophytes in the bilateral knees, and degenerative joint disease. 

3

 Appellant has another claim for a back injury on June 16, 2004, accepted for lumbosacral strain. She returned to 

full duty on August 2, 2004. This claim is not before the Board on the present appeal. 
3

On October 3, 2013 OWCP terminated appellant’s compensation effective 

October 2, 2013. It found that she no longer had any residuals related to the work-related 

condition or continued disability from work as a result of the employment injury. 

On October 9, 2013 appellant requested a hearing, which was held on April 2, 2014. 

In a May 21, 2014 decision, an OWCP hearing representative affirmed the October 3, 

2013 decision. 

On June 24, 2015 appellant’s representative requested reconsideration. He argued that he 

was submitting copies of a motion to reconsider along with a medical report pertaining to the 

motion which was filed on March 23, 2015 for which counsel argued that they had never 

received a response. A copy of a March 23, 2015 motion to reconsider was included. These 

documents were received by OWCP on June 25, 2015. In the March 23, 2015 motion, counsel 

argued that the September 11, 2014 report from Dr. Michael Buscemi, Jr., a Board-certified 

orthopedic surgeon and osteopath, supported causal relationship. He argued that the reports from 

Dr. Sami F. Bishai, Board-certified in emergency medicine, also supported causal relationship as 

everyone was in agreement that the “conditions of her work environment as such (uneven 

surfaces, many transfer’s climbing, etc.) there is definitely a causal relationship to her knee 

injuries, if not the cause of those injuries.” 

In a September 11, 2014 report, Dr. Buscemi noted appellant’s history of injury and 

treatment. He indicated that he had reviewed her statement of her job activities and noted that 

“the repetitiveness that went into a day’s work is very extraordinary, physically demanding and 

somewhat problematic. With all the transferring in and out of the postal vehicle, in itself over 

400 times a day, and then waiting on uneven terrain, coupled with the amount step climbing in a 

day’s work for over 16 years, I would have to agree” that they would “definitely exasperate [sic] 

an underlying condition of the knees. However, I would not rule out the possibility of all the 

grinding, twisting and turning of the knee joint as the onset of her condition.” Dr. Buscemi 

opined that it was clear that everyone was in agreement that there was definitely a causal 

relationship to appellant’s knee injuries, if not the cause of her injuries. He further explained 

that, although the knee replacement was a success, the work that it entailed continued to 

aggravate her condition for some degree on a permanent basis.4

 

OWCP received several reports from Dr. Bishai. They included a July 29, 2014 report in 

which Dr. Bishai noted appellant’s history of injury and treatment. He explained that she was 

recovering from total right knee replacement surgery in the last several months. Dr. Bishai 

examined appellant and provided findings. He diagnosed internal derangement of the right knee 

joint, torn meniscus of the right knee joint, severe degenerative arthritis of the right knee joint, 

status postoperative right total knee replacement; internal derangement of the left knee joint, and 

degenerative arthritis of the left knee joint. Dr. Bishai explained that appellant was recovering 

reasonably well from a total knee replacement performed on her right knee joint. He 

recommended that she continue working and encouraged her to continue getting physical therapy 

treatments on a twice per week basis. 

 4

 The record does not indicate that OWCP authorized the knee surgery. 
4

In an August 28, 2014 report, Dr. Bishai again noted appellant’s history of injury, 

treatment, and diagnoses. He explained that the causal relationship between her symptoms in her 

knee joints and her activities over the past several years was “quite clear and not in doubt.” 

Dr. Bishai indicated that appellant’s problems with her knee joints were due to the repetitive 

exiting and entering of her work vehicle, walking on uneven and unlevel surface, and terrain 

during the delivery of mail and climbing up and down stairs very repetitively every single day of 

her job as a letter carrier. He opined that it was his opinion “within a reasonable degree of 

medical certainty,” that if she did not have the right total knee replacement on November 6, 2013 

she would not be able to return to work to perform her work duties. Dr. Bishai explained that the 

aggravation of appellant’s conditions was definitely a permanent aggravation and the causal 

relationship between her symptoms and the permanent aggravation of her conditions was linked 

and established. 

In a March 19, 2015 report, Dr. Bishai noted appellant’s history and explained that she 

presented with complaints of pain and discomfort in the right knee joint. He determined that she 

had a reasonable result from the surgery and was able to return to work on a controlled route. 

Dr. Bishai advised that appellant had some residual right knee pain, but she was improved 

following the surgery. He also advised that she had left knee joint pain due to degenerative 

arthritic changes in that knee joint. Dr. Bishai examined appellant’s right knee found slight 

swelling of the knee joint due to the presence of a little bit of effusion. He noted findings that 

included a healed surgical scar procedure on the anterior aspect of the right knee joint as well as 

knee ranges of motion. Dr. Bishai diagnosed internal derangement of the right knee joint, torn 

meniscus of the right knee joint, severe degenerative arthritis of the right knee joint, status 

postoperative right total knee replacement, internal derangement of the left knee joint, and 

degenerative arthritis of the left knee joint. He indicated that appellant continued to recover from 

her right total knee replacement. Dr. Bishai indicated that she was able to return to work as a 

letter carrier because she had a special route that was less troublesome than the previous one. He 

explained that there were some restrictions in how much walking appellant did and how many 

times she was getting in and out of her vehicle. Dr. Bishai noted that she had some residual 

symptoms in her right knee joint, including limited range of motion, but that was expected. He 

recommended an orthopedic evaluation in six to eight weeks. 

In July 20, 2015 decision, OWCP denied appellant’s request for reconsideration because 

it was untimely filed and failed to demonstrate 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.5

 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 

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

OWCP’s decision for which review is sought.6

 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.7

OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, it must nevertheless undertake a 

limited review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.8

To demonstrate 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.9

 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.10

ANALYSIS 

In its July 20, 2015 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It rendered its last merit decision on May 21, 2014. The 

reconsideration request of appellant’s counsel was received on June 25, 2015 more than one year 

after the May 21, 2014 merit decision and was, therefore, untimely.11

The Board also finds that appellant’s untimely request fails to demonstrate clear evidence 

of error. In its May 21, 2014 decision, OWCP affirmed the termination of her wage-loss and 

 6

 20 C.F.R. § 10.607(a). 

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

8 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). 

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

10 Id.

11 Although appellant’s representative asserted that he earlier submitted a March 23, 2015 reconsideration request 

to OWCP, the record before the Board does not contain any reconsideration request that was received by OWCP 

before June 25, 2015. The record does not contain evidence of an earlier or timely submission. 
6

medical benefits based on the weight of the medical evidence. Thereafter, appellant submitted 

additional factual and medical evidence. The Board finds that the evidence submitted by her 

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

to demonstrate clear evidence of error. 

On reconsideration, appellant’s representative submitted new medical evidence and 

argued that the report from Dr. Buscemi and the reports from Dr. Bishai supported causal 

relationship between her diagnosed conditions and the accepted conditions. In his September 11, 

2014 report, Dr. Buscemi noted that “the repetitiveness that went into a day’s work is very 

extraordinary, physically demanding, and somewhat problematic” and that, “with all the 

transferring in and out of the postal vehicle ... over 400 times a day, and then waiting on uneven 

terrain, coupled with the amount step climbing in a day’s work for over 16 years, I would have to 

agree” that they would “definitely” aggravate her underlying knee conditions. He also indicated 

that grinding, twisting, and turning of the knee while working may have caused appellant’s 

conditions. Dr. Buscemi further explained that, although the knee replacement was a success, 

the work that she engaged in continued to aggravate her condition to some degree on a 

permanent basis. 

The Board finds that Dr. Buscemi’s opinion does not establish clear evidence of error. 

The Board has held that the term “clear evidence of error” is intended to represent a difficult 

standard. The claimant must present evidence which on its face shows that OWCP made an 

error (for example, proof of a miscalculation in a schedule award). Evidence such as a detailed, 

well-rationalized report, which if submitted prior to OWCP’s denial, would have created a 

conflict in medical opinion requiring further development, is not clear evidence of error and 

would not require a review of a case.12 

Likewise, OWCP received several reports from Dr. Bishai. On July 29, 2014 Dr. Bishai 

explained that appellant was recovering from a total right knee replacement. He diagnosed 

internal derangement of the right knee joint, torn meniscus of the right knee joint, severe 

degenerative arthritis of the right knee joint, status postoperative right total knee replacement; 

internal derangement of the left knee joint, and degenerative arthritis of the left knee joint. 

Dr. Bishai recommended that appellant continue working. On August 28, 2014 he explained that 

the causal relationship between her symptoms in her knee joints and her activities over the past 

several years was “quite clear and not in doubt.” Dr. Bishai indicated that appellant’s problems 

with her knees were due to the repetitive exiting and entering of her work vehicle, walking on 

uneven and unlevel surfaces, and terrain, as well as climbing up and down stairs during mail 

delivery. He opined “within a reasonable degree of medical certainty,” that if she did not have 

the right total knee replacement on November 6, 2013 she would not be able to return to work to 

perform her work duties. Dr. Bishai explained that the aggravation of appellant’s conditions was 

a permanent aggravation and the causal relationship between her symptoms and the permanent 

aggravation of her conditions was linked and established. His March 19, 2015 report noted her 

recovery from her surgery and addressed her work status. Although Dr. Bishai gives some 

support for causal relationship, his reports do not demonstrate clear evidence of error. As noted, 

 12 Annie L. Billingsley, 50 ECAB 210 (1998). 
7

clear evidence of error is intended to represent a difficult standard.13 Even if these reports 

offered reasoned support for causal relationship of the claimed conditions and disability, they 

would be insufficient to demonstrate clear evidence of error. 

Consequently, appellant has not met her burden to demonstrate clear evidence of error on 

the part of OWCP such that OWCP erred in denying merit review. The Board, therefore, finds 

that, in accordance with its internal guidelines and with Board precedent, OWCP properly 

performed a limited review of her argument to ascertain whether it demonstrated clear evidence 

of error, correctly determined that it did not and denied her untimely request for a merit 

reconsideration on that basis.14 

On appeal, appellant’s representative asserts that OWCP improperly terminated benefits. 

However, as explained, the Board does not have jurisdiction over the merits of the claim. It only 

has jurisdiction to address whether appellant’s reconsideration request was untimely filed and 

whether it established clear evidence of error. 

CONCLUSION 

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

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

evidence of error. 

 13 See id. 

14 Nancy Marcano, 50 ECAB 110 (1998). 
8

ORDER 

IT IS HEREBY ORDERED THAT the July 20, 1015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board