United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.S., Appellant 

and 

DEPARTMENT OF ENERGY, BONNEVILLE 

POWER ADMINISTRATION, Vancouver, WA, 

Employer 

__________________________________________ 

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Docket No. 15-49 

Issued: March 13, 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 HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 3, 2014 appellant filed a timely appeal from May 2 and July 22, 2014 

nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). The last 

OWCP merit decision in this matter was issued on May 7, 2010. Since more than 180 days 

elapsed since May 7, 2010 and the filing of this appeal, and 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 this case. 

ISSUES 

The issues are: (1) whether OWCP properly denied appellant’s request for a hearing; and 

(2) whether it properly denied his request for reconsideration on the grounds that it was not 

timely filed and did not demonstrate clear evidence of error. 

 1

 5 U.S.C. §§ 8101-8193. 
2

On appeal appellant asserts that he is entitled to back pay for the periods March 1, 1988 

to May 21, 1989 and July 17, 1989 to March 16, 1999, due to his accepted bilateral carpal tunnel 

syndrome, adjudicated by OWCP under file number xxxxxx757, and back and shoulder 

conditions, adjudicated under file number xxxxxx355. He also questioned the pay rate used in 

his schedule award. 

FACTUAL HISTORY 

This case has previously been before the Board. In a March 9, 1993 decision, the Board 

remanded appellant’s bilateral carpal tunnel claim to OWCP for further development of the 

medical record.2 OWCP subsequently accepted bilateral carpal tunnel syndrome, and on 

December 15, 1999 appellant was granted a schedule award for a 40 percent impairment of the 

right upper extremity and a 40 percent impairment on the left upper extremity. The schedule 

award was amended on March 12, 2007 to show that the award ended on December 28, 2003. 

Appellant elected FECA compensation effective December 30, 2003 and was placed on the 

periodic compensation rolls, where he remains. In a May 7, 2010 decision, the Board affirmed 

May 12 and July 30, 2008 decisions, finding that appellant did not establish that he was entitled 

to disability compensation for the periods March 1, 1988 to May 21, 1989 and July 17, 1989 to 

March 16, 1999. The Board also affirmed a nonmerit decision dated November 7, 2008, finding 

that OWCP properly refused to reopen appellant’s claim for further review of the merits pursuant 

to 5 U.S.C. § 8128(a).3 The law and facts of the previous Board decisions are incorporated 

herein by reference. 

Subsequent to the last OWCP merit decision dated July 30, 2008, in January 5, 2009 

reports, Dr. Douglas Bald, a Board-certified orthopedic surgeon, noted appellant’s complaints of 

pain, swelling, and stiffness of both hands, pain and limitations of both shoulders, and severe 

polyneuropathy of all upper and lower extremities. He provided examination findings and 

diagnosed bilateral carpal tunnel syndrome and severe polyneuropathy and the upper and lower 

extremities. Dr. Bald advised that appellant was incapable of any work. 

On January 4, 2012 appellant requested reconsideration from the July 30, 2008 decision. 

In support of the request for reconsideration, he listed a number of physicians and maintained 

that their opinions established the periods of disability claimed. In letters dated January 24 and 

 2

 Docket No. 92-995 (issued March 9, 1993). The instant claim was adjudicated by OWCP under file number 

xxxxxx757. Appellant has additional claims, including a 1980 injury, accepted for lumbar strain and painful arch 

syndrome of the left shoulder, and a 1983 claim accepted for low back contusion. The 1980 claim was adjudicated 

by OWCP under file number xxxxxx355 and the 1983 claim under file number xxxxxx057. An occupational 

disease claim, filed in 1989 and adjudicated under file number xxxxxx796, was accepted for low back strain. Claim 

numbers xxxxxx355, xxxxxx057, and xxxxxx796 were combined, with claim number xxxxxx355 the master file. 

Claim number xxxxxx757 remained a separate file. In an August 4, 2009 decision regarding claim number 

xxxxxx355, the Board affirmed a July 28, 2008 OWCP decision that denied appellant’s reconsideration request 

because it was untimely filed and did not establish clear evidence of error. Docket No. 09-130 (issued 

August 4, 2009). As noted in that decision, the last merit decision in claim number xxxxxx355 was issued on 

June 22, 1990 when OWCP found that appellant did not establish disability causally related to his work injuries as 

of February 1988 when he was terminated for unacceptable performance. 

3

 Docket No. 09-1037 (issued May 7, 2010). 
3

April 26, 2012, OWCP asked appellant to indicate in writing the date of the decision for which 

he was requesting reconsideration. Appellant did not respond. 

In a work capacity evaluation dated September 24, 2012, Dr. Bald reiterated that 

appellant was permanently restricted from work. 

In a December 26, 2012 letter mailed to OWCP’s Branch of Hearings and Review, 

appellant referenced claim number xxxxxx757 and the Board’s decision dated May 7, 2010. He 

asserted that the medical evidence of record proved that he was disabled. In a May 2, 2014 

decision, OWCP denied appellant’s hearing request. It indicated that the most recent decision 

regarding this matter was the Board’s May 7, 2010 decision, and the Branch of Hearings and 

Review did not have jurisdiction to review Board decisions. The decision advised him that the 

issue in the case could be addressed by requesting reconsideration with OWCP. 

In correspondence received by OWCP on June 2, 2014, appellant requested 

reconsideration of the May 2010 Board decision. He also referenced medical evidence 

previously of record and the Board’s March 9, 1993 decision and asserted that the medical 

evidence established disability. Appellant also requested reconsideration of his back and 

shoulder claims. 

By decision dated July 22, 2014, OWCP denied appellant’s reconsideration request on 

the grounds that the request was untimely filed and that he failed to present clear evidence that 

OWCP’s last merit decision was incorrect. 

LEGAL PRECEDENT -- ISSUE 1 

Before review under section 8128(a) of this title (related to reconsideration), a claimant 

for compensation not satisfied with a decision of the Secretary under subsection (a) of this 

section is entitled, on request made within 30 days after the date of the issuance of the decision, 

to a hearing on his or her claim before a representative of the Secretary.4 

FECA provides OWCP with original jurisdiction in the processing of compensation 

claims and section 8124(a) provides it with the duty and authority to issue an initial decision on 

an employee’s claim for compensation.5 Once an initial decision is made in a compensation 

case, the claimant’s rights arise by which the claimant may seek further review of his claim, the 

right to a hearing or review of the written record before OWCP, the right to reconsideration 

before OWCP or an appeal to the Board. The Board has clarified that OWCP does not have the 

discretionary authority to grant a request for a hearing immediately following a Board decision. 

The Branch of Hearings and Review may not assume jurisdiction in the claims process absent a 

final adverse decision by the Director.6

 Following the Board’s review of OWCP’s decision, 

 4

 5 U.S.C. § 8124(b)(1). 

5 Id. 

6 Patricia G. Aiken, 57 ECAB 441 (2006); Eileen A. Nelson, 46 ECAB 377 (1994). 
4

there is no final decision of it left unreviewed over which the Branch of Hearings and Review 

can assume jurisdiction to exercise its discretionary appellant authority.7

ANALYSIS -- ISSUE 1 

The instant case was accepted for employment-related bilateral carpal tunnel syndrome. 

Appellant, who was terminated for unacceptable job performance on February 29, 1988, has 

been on either schedule award or total disability compensation since March 7, 1999. He also 

received wage-loss compensation for the period May 22 through July 16, 1989 due to 

employment-related surgeries. 

In denying appellant’s hearing request on May 2, 2014, the Branch of Hearings and 

Review noted that the last decision on the merits of appellant’s claim was the Board’s May 7, 

2010 decision and that the Branch of Hearings and Review did not have jurisdiction to review 

Board decisions.8

 The Board has held that, following its review of OWCP’s decision, a claimant 

does not have the right under 5 U.S.C. § 8124(b)(1) to request an oral hearing or review of the 

written record in the absence of a final OWCP decision.9

 As there is no final OWCP decision 

left unreviewed over which the Branch of Hearings and Review could assume jurisdiction,10

appellant has no right to a hearing following the Board’s May 7, 2010 decision. Therefore, the 

Board finds that OWCP properly denied appellant’s request for a hearing.11

LEGAL PRECEDENT -- ISSUE 2 

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

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is filed within one year of the date of that decision.12 

When an application for review is untimely, OWCP undertakes a limited review to determine 

whether the application presents clear evidence that its final merit decision was in error.13 Its 

regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding the 

one-year filing limitation set forth under section 10.607 of OWCP regulations, if the claimant’s 

application for review shows “clear evidence of error” on the part of OWCP.14 In this regard, 

 7 Robert N. Thomas, 51 ECAB 180 (1999); H.C., Docket No. 11-1424 (issued December 19, 2011). 

8

 Decisions and orders of the Board are final as to the subject matter appealed, and such decisions and orders are 

not subject to review except by the Board. The decisions and orders of the Board will be final upon the expiration of 

30 days from the date of issuance of the Board’s decision. 20 C.F.R. § 501.6(d ). 

9 Supra note 8. 

10 Id. 

11 As there was no final OWCP decision left unreviewed over which the Branch of Hearings and Review could 

assume jurisdiction, it also had no basis to exercise discretionary authority to grant a hearing. See Robert N. 

Thomas, supra note 7.

12 20 C.F.R. § 10.607(b) (2011); see Gladys Mercado, 52 ECAB 255 (2001). 

13 Cresenciano Martinez, 51 ECAB 322 (2000). 

14 20 C.F.R. § 10.607 (2011). 
5

OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior 

evidence of record.15

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

which 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 to merely 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. To show clear 

evidence of error, the evidence submitted 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.16 

OWCP procedures note 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 that a schedule award was miscalculated). Evidence such as a 

detailed, well-rationalized medical report which, if submitted before the denial was issued, 

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.17 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.18

ANALYSIS -- ISSUE 2 

On June 2, 2014 appellant requested reconsideration of the May 7, 2010 Board decision. 

The Board finds that as more than one year has elapsed between the most recent merit decision 

on this issue, the Board’s May 7, 2010 decision, and appellant’s request for reconsideration 

received by OWCP on June 2, 2014, his request for reconsideration was untimely.19 

The Board also finds that appellant failed to establish clear evidence of error. On 

reconsideration appellant requested that OWCP reconsider whether he was entitled to back pay 

for the periods March 1, 1988 to May 21, 1989 and July 17, 1989 to March 16, 1999. In merit 

decisions dated May 12 and July 30, 2008, OWCP denied appellant’s claim that he was entitled 

 15 See Alberta Dukes, 56 ECAB 247 (2005). 

16 Robert G. Burns, 57 ECAB 657 (2006). 

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 1.1602.5(a) (October 2011); 

James R. Mirra, 56 ECAB 738 (2005). 

18 Nancy Marcano, 50 ECAB 110 (1998). 

19 20 C.F.R. § 10.607(a) (2011). The Board also notes that appellant’s January 4, 2012 request, in which he did 

not identify a decision and did not thereafter respond to OWCP correspondence, and appellant’s December 26, 2012 

request, which was mailed to OWCP’s Branch of Hearings Review would also be untimely. 
6

to additional wage-loss compensation.20 In its May 7, 2010 decision, the Board affirmed the 

May 12 and July 30, 2008 decisions.21 Absent further merit review of this issue by OWCP, 

pursuant to section 8128 of FECA, this issue is res judicata.

22

On appeal appellant again contends that he is entitled to back pay. As discussed above, 

this issue was addressed in OWCP’s merit decisions dated May 12 and July 30, 2008 and 

affirmed by the Board on May 7, 2010, the last merit decision on this issue. Without further 

merit review by OWCP, the Board has no jurisdiction to review this matter.23 

The term “clear evidence of error” is intended to represent a difficult standard, and the 

argument provided here is not the type of positive, precise, and explicit evidence which 

manifested on its face that OWCP committed an error.24 With his June 2, 2014 reconsideration 

request, appellant referenced medical reports previously reviewed by OWCP and the Board. He 

also submitted medical reports from Dr. Bald dated June 5, 2009 and September 24, 2012 in 

which he did not discuss the periods of claimed disability. As the evidence and argument 

submitted are of insufficient probative value to shift the weight in favor of appellant and raise a 

substantial question as to the correctness of the May 12 and July 30, 2008 OWCP decisions, 

appellant has not established that OWCP committed error by its July 22, 2014 decision.25 The 

Board therefore finds that, in accordance with its internal guidelines and with Board precedent, 

OWCP correctly determined that the evidence submitted by appellant with his June 2, 2014 

reconsideration request did not demonstrate clear evidence of error and thus properly denied 

appellant’s untimely request for a merit reconsideration on that basis.26 

As to appellant’s question regarding the schedule award pay rate, on December 15, 1999 

he was granted a schedule award for a 40 percent impairment of the right upper extremity and a 

40 percent impairment on the left. The schedule award was amended on March 12, 2007. For 

decisions of OWCP issued prior to November 19, 2008, a claimant had up to one year to file an 

appeal to the Board.27 Appellant did not file an appeal of either schedule award decision with the 

Board within that period. The Board, therefore, has no jurisdiction over the schedule award pay 

rate issue. 

 20 As noted above, in the July 30, 2008 decision, OWCP found that appellant was entitled to wage-loss 

compensation from May 22 through July 16, 1989 due to his employment-related surgeries, and he was granted 

wage-loss compensation for this period. 

21 Supra note 3. 

22 Supra note 7; see Robert G. Burns, supra note 16; Clinton E. Anthony, Jr., 49 ECAB 476 (1998). A decision of 

the Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d). 

23 Id.

24 Supra note 16. 

25 Supra note 18. 

26 20 C.F.R. § 10.607(b) (2011); see D.G., 59 ECAB 455 (2008). 

27 K.C., Docket No. 09-1666 (issued August 25, 2010). 
7

The Board also notes that appellant also requested reconsideration of his back and 

shoulder claims, adjudicated under file number xxxxxx355. The Board’s jurisdiction is limited 

to reviewing final decisions of OWCP.28 There is no indication in the case record before the 

Board, file number xxxxxx757, that OWCP has issued a final decision on appellant’s back and 

shoulder claims. Finally, the Board notes that appellant submitted evidence with his appeal to 

the Board. The Board cannot consider this evidence as its jurisdiction is limited to reviewing the 

evidence that was before OWCP at the time of its final decision.29

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for a hearing and that, as 

his request for reconsideration was untimely filed and he failed to establish clear evidence of 

error, OWCP properly denied a merit review of his claim. 

ORDER 

IT IS HEREBY ORDERED THAT the July 22 and May 2, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: March 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 28 20 C.F.R. § 501.2(c); see J.B., Docket No. 09-2191 (issued May 14, 2010). 

29 20 C.F.R. § 501.2(c)(1); see J.T., 59 ECAB 293 (2008).