United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.S., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Fort Lauderdale, FL, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1606 

Issued: November 19, 2014 

Appearances: Case Submitted on the Record

Capp Taylor, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On July 15, 2014 appellant, through his attorney, filed a timely appeal from a 

January 17, 2014 Office of Workers’ Compensation Programs’ (OWCP) decision which denied 

his reconsideration request on the grounds that it was untimely filed and failed to present clear 

evidence of error. Because more than 180 days elapsed from the most recent OWCP merit 

decision dated August 6, 2010 to the filing of this appeal, the Board lacks jurisdiction to review 

the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

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

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 4, 2007 appellant, then a 51-year-old transportation security officer, sustained an 

injury while performing a bag check. He tripped on a loose rope and fell injuring his right knee, 

shoulder and ribs. Appellant returned to a limited-duty position on May 24, 2007. On 

July 31, 2007 OWCP accepted his claim for postconcussion syndrome, right shoulder sprain and 

strain and a right knee contusion. 

A May 29, 2007 magnetic resonance imaging (MRI) scan of the right shoulder revealed 

mild rotator cuff tendinopathy without a tear, prior subacromial decompression and 

acromioplasty with postsurgical change and no labral tear. Appellant came under the treatment 

of Dr. Mayur C. Maniar, a Board-certified neurologist, from May 31, 2007 to March 27, 2008. 

Dr. Maniar reported daily left-sided frontotemporal and parietal headaches, difficulty with 

concentration and memory and right shoulder pain. An MRI scan of the brain dated July 2, 2007 

revealed no abnormalities. Dr. Maniar noted that appellant remained symptomatic with visual 

problems, dizziness and headaches. 

Appellant was also treated by Dr. Keith A. Skolnick, a Board-certified ophthalmologist, 

on December 2, 2007, for postconcussion syndrome causing visual disturbances and blurry 

vision. Dr. Skolnick opined that appellant’s eye complaints were related to the May 4, 2007 

work injury. On April 17, 2008 appellant’s claim was accepted for visual disturbances. He 

stopped work on November 24, 2008. 

Appellant was treated by Dr. Ely Pelta, a Board-certified psychiatrist, from March 9 

to July 7, 2010 for organic mood disorder and status postconcussion syndrome. In a work 

capacity evaluation dated May 22, 2009, Dr. Pelta noted that appellant continued to have 

cognitive and emotional deficits and could return to work in a desk job full time. Dr. Maniar 

diagnosed status post work injury of May 4, 2007 with postconcussion syndrome with residual 

traumatic headaches, mild memory dysfunction, emotional problems with anxiety and 

depression. He released appellant to work full time without restrictions. 

On April 13, 2010 OWCP referred appellant for a second opinion to Dr. Antonio 

Defilippo, a Board-certified ophthalmologist. In a May 14, 2010 report, Dr. Defilippo diagnosed 

mood disorder secondary to head injury in the resolution phase, a history of head injury with a 

postconcussion syndrome and bilateral knee surgeries. He noted that the psychiatric part of the 

mood disorder resulting from the postconcussion syndrome was well controlled with medication. 

Dr. Defilippo opined that appellant reached maximum medical improvement and could return to 

his regular duties as a screener. 

On July 2, 2010 OWCP proposed to terminate appellant’s wage-loss compensation 

benefits. It found that Dr. Defilippo’s report established that appellant was no longer disabled 

from performing his date-of-injury job. 

Appellant submitted a July 21, 2010 report from Dr. Maniar who noted he was stable 

neurologically and released to work full time. 
3

By decision dated August 6, 2010, OWCP terminated appellant’s wage-loss benefits 

effective July 8, 2010. Appellant remained entitled to medical benefits. 

On January 9, 2014 appellant requested reconsideration. Through counsel, he asserted 

that his claim should be accepted chronic migraine syndrome and traumatically-induced organic 

mood disorder. Counsel contended that these conditions should have been considered when 

OWCP determined that he was able to return to work as a screener. 

Appellant submitted an October 30, 2013 report from Dr. Michael K. Maraist, a Boardcertified neurologist, who noted a history of appellant’s May 4, 2007 injury and treatment for 

memory loss and lack of focus, which were associated with his chronic migraine syndrome and 

visual disturbances. Dr. Maraist diagnosed chronic migraine syndrome and traumaticallyinduced organic mood disorder. He stated to a reasonable degree of medical probability that the 

conditions were causally related to the May 4, 2007 injury. 

Appellant submitted reports from Dr. Maniar dated September 1 and 20, 2010. 

Dr. Maniar noted that appellant was symptomatic with ongoing headaches, dizziness, trouble 

concentrating and with memory. On September 20, 2010 he took appellant off work for three 

weeks due to worsening symptoms. In Florida Workers’ Compensation forms dated 

September 1 to December 13, 2010, Dr. Maniar diagnosed severe headaches and dizziness 

flare-up and noted appellant was disabled from work. In reports dated October 7 

to December 14, 2010, he noted that on August 27, 2010 appellant developed significant stress at 

work and his symptoms were exacerbated. Dr. Maniar diagnosed closed head injury with 

postconcussion syndrome including headaches, difficulty with memory and concentration and 

emotional liability. He found that appellant was totally disabled. 

Appellant was treated by Dr. Pelta from November 9, 2010 to November 22, 2011, who 

diagnosed organic mood disorder and opined that appellant’s head injury and new injury on 

August 27, 2010 rendered him incapable of working as a screener as he was unable to make 

rapid decisions and remained emotionally labile. On January 31 and February 18, 2011 appellant 

was treated by Dr. Fred J. Petrilla, a clinical psychologist, for clinical depression. Dr. Petrilla 

noted appellant’s short-term memory and concentration were less than satisfactory. Appellant 

appeared to be tense, frustrated, anxious and depressed. An MRI scan of the head dated 

August 16, 2011 revealed no abnormalities. 

By decision dated January 17, 2014, OWCP denied appellant’s request for 

reconsideration as it was untimely and did not establish clear evidence of error. 
4

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. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”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, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.3

 However, OWCP will 

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

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. 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 be manifest on its face that OWCP committed an error.4

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting 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.5

 

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.8

 The Board makes an independent determination 

as to whether a claimant has submitted clear evidence of error on the part of OWCP.9

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607(a). 

4 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

5 Annie L Billingsley, 50 ECAB 210 (1998). 

6 Jimmy L. Day, 48 ECAB 652 (1997). 

7 Id.

8 Id.

9 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 
5

ANALYSIS 

The Board finds that appellant failed to file a timely application for review. As noted, an 

application for reconsideration must be received within one year of the date of OWCP’s decision 

for which review is sought.10 Appellant’s request for reconsideration was not received by 

OWCP until January 15, 2014, more than three years after issuance of the August 6, 2010 merit 

decision. It was untimely. Consequently, appellant must demonstrate clear evidence of error by 

OWCP in its August 6, 2010 decision terminating wage-loss benefits. 

The Board finds that appellant has not established clear evidence of error on the part of 

OWCP. In his January 9, 2014 statement, counsel contended that the medical evidence 

supported additional conditions should have been accepted by OWCP and considered when 

determining appellant’s ability to return to work as a screener. While appellant addressed his 

disagreement with OWCP’s termination of his wage-loss benefits, his general allegations do not 

raise a substantial question as to the correctness of OWCP’s decision. In 2010, both Dr. Maraist 

and Dr. Filippo found appellant able to return to work without restrictions. 

Appellant submitted an October 30, 2013 report from Dr. Maraist who noted appellant’s 

history and treatment. Dr. Maraist opined to a reasonable degree of medical probability that 

appellant suffered from chronic migraine syndrome and traumatically-induced organic mood 

disorder as a result of his injury May 4, 2007. He does not explain how appellant’s disability 

was causally related to his accepted work injury. The Board notes that appellant’s wage-loss 

benefits were terminated for the accepted conditions of postconcussion syndrome, right 

shoulder/sprain and strain, right knee contusion and visual disturbances. Dr. Maraist did not 

address continuing disability related to these conditions but attributed appellant’s disability to 

conditions that were not accepted as work related. This evidence is insufficient to raise a 

substantial question as to the correctness of OWCP’s decision. This evidence is not so positive, 

precise or explicit that it manifests on its face that OWCP committed an error. The Board notes 

that clear evidence of error is intended to represent a difficult standard. The submission of 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.

11

In reports dated September 1 to December 14, 2010, Dr. Maniar noted that on 

August 27, 2010 appellant developed significant stress at work which exacerbated his symptoms. 

He diagnosed closed head injury with postconcussion syndrome including headaches, difficulty 

with memory and concentration and emotional liability. On September 20, 2010 Dr. Maniar 

noted that appellant was totally disabled. In Florida Workers’ Compensation uniform reporting 

forms dated September 1 to December 13, 2010, he diagnosed severe headaches and dizziness 

flare-up and noted appellant was totally disabled. Dr. Maniar did not explain how appellant’s 

disability was causally related to appellant’s employment. He released appellant to regular duty 

in June 2010. Dr. Maniar failed to explain how appellant’s disability of September 20, 2010 

 10 20 C.F.R. § 10.607(a). 

11 D.G., 59 ECAB 455 (2008). 
6

related to the accepted conditions. These reports are not sufficient to establish clear evidence of 

error. 

Appellant was treated by Dr. Pelta from November 9, 2010 to November 22, 2011. 

Dr. Pelta diagnosed organic mood disorder and opined that appellant’s head injury and a new 

injury on August 27, 2010 rendered him incapable of working as a screener as he was unable to 

make rapid decisions and remained emotionally labile. Appellant submitted reports from 

Dr. Petrilla dated January 31 and February 18, 2011, who treated him for clinical depression. 

Dr. Petrilla noted appellant’s short-term memory and concentration were less than satisfactory 

and he appeared to be tense, frustrated, anxious and depressed. This evidence is not so positive, 

precise and explicit that it manifests on its face that OWCP committed an error. As noted above, 

even if these reports offered reasoned support for causal relationship, they would be insufficient 

to establish clear evidence of error 

Thus, appellant has not established clear evidence of error by OWCP in its 

August 6, 2010 decision. 

On appeal, appellant reiterated assertions that he made before OWCP indicating that the 

termination of his benefits was improper and that the newly diagnosed conditions of chronic 

migraine syndrome and traumatically-induced organic mood disorder should have been accepted 

as related to the May 4, 2007 work injury and considered when terminating compensation 

benefits. The Board does not have jurisdiction over the merits of the claim. As noted, appellant 

has not established clear evidence of error by OWCP. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. 
7

ORDER 

IT IS HEREBY ORDERED THAT the January 17, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 19, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board