United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Teterboro, NJ, 

Employer 

__________________________________________ 

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Docket No. 14-1388 

Issued: October 1, 2014 

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On June 2, 2014 appellant, through her attorney, timely appealed a February 11, 2014 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). OWCP issued 

its most recent merit decision on October 11, 2012; more than 18 months prior to the filing of the 

instant appeal. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction is only of the February 11, 2014 

nonmerit decision. 

ISSUE 

The issue is whether OWCP properly declined to reopen appellant’s case for merit review 

on the grounds that her request for reconsideration was untimely filed and did not demonstrate 

clear evidence of error. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

Appellant, a 44-year-old mail processing clerk, alleged that she injured her low back and 

right leg in the performance of duty on August 10, 2012. She was bending into a postal 

container to retrieve mail when she felt a sharp pain in her low back that traveled down her right 

buttock and leg to her knee. Appellant was treated in the emergency room that same day for 

unspecified backache and sciatica. The employing establishment authorized her treatment by 

Form CA-16 at Hackensack University Medical Center.2 The August 10, 2012 emergency 

department treatment records appellant submitted did not include a specific history of injury. 

On August 13, 2012 Dr. Samuel A. Banigo, an internist, diagnosed acute lumbosacral 

sprain, lumbago and lumbar radiculopathy. He relieved appellant from all work and referred her 

for physical therapy. 

On September 4, 2012 OWCP advised appellant of the need for additional factual and 

medical information in support of her August 10, 2012 traumatic injury claim. It afforded her 30 

days to submit the requested information. 

OWCP subsequently received a September 5, 2012 note from Dr. Jackson A. Okoya, a 

Board-certified internist, whose handwritten note stated “Lower back [follow-up] ... sciatica.” 

Dr. Okoya cleared appellant to return to work in a part-time, limited-duty capacity. 

Appellant also provided a September 27, 2012 statement. She explained that on 

August 10, 2012, she was handling third class mail on a delivery bar code sorter and was 

required to lift mail out of a post-con to load on the feeder. Appellant stated that while bending 

to lift mail out of the tray, she felt a sharp pain in her low back, which traveled down into the 

right side of her buttock and leg. 

In an October 11, 2012 decision, OWCP denied appellant’s claim. It accepted that the 

August 10, 2012 employment incident occurred as alleged, however, the medical evidence did 

not reference the August 10, 2012 employment incident and she failed to establish that her back 

condition was causally related to the accepted incident. 

On November 16, 2012 the Branch of Hearings and Review received a request for an oral 

hearing from appellant’s counsel. The hearing request was postmarked November 14, 2012. 

By decision dated December 31, 2012, OWCP’s hearing representative found that 

appellant’s request was untimely and therefore she was not entitled to a hearing as a matter of 

right. The hearing representative denied a discretionary hearing noting that the matter could be 

 2

 The Board has held that where an employing establishment properly executes a Form CA-16, which authorizes 

medical treatment as a result of an employee’s claim for an employment-related injury, it creates a contractual 

obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless 

of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003); 20 C.F.R. § 10.300. 
3

equally well addressed by filing a request for reconsideration with OWCP and submitting new 

evidence regarding the relevant issue.3

On March 5, 2013 OWCP received additional medical records regarding the 

August 10, 2012 emergency department visit. The treatment records noted a prior history of 

L5-S1 bulging disc. Appellant presented with lower back pain for two hours. She was “lifting 

heavy metal plate at work and bent over and pulled her [right] lower back....” Appellant had 

“achy pain radiating to her [right] thigh,” which she rated a 6 on a scale of 1 to 10. 

Dr. Jesson S. Yeh, who treated her in the emergency department, noted complaints of low back 

pain radiating to her right leg “after lifting heavy object.”4

 He indicated that appellant’s 

condition was likely sciatica versus muscular strain. 

On December 30, 2013 OWCP received a request for reconsideration from counsel, who 

identified OWCP’s hearing representative’s December 31, 2012 nonmerit decision as the subject 

of the reconsideration request. The request was accompanied by another copy of the 

August 10, 2012 emergency department treatment records. OWCP also received a copy of a 

March 14, 2012 acceptance letter under claim file number xxxxxx152.5

 

Counsel also submitted an April 4, 2013 lumbar magnetic resonance imaging (MRI) scan 

and three reports from Dr. Richard A. Boiardo, a Board-certified orthopedic surgeon,6 who 

initially examined appellant on August 31, 2012 for complaints of severe low back pain and 

sciatic radiculopathy. Dr. Boiardo noted that appellant was employed by the employing 

establishment, but did not otherwise identify a specific history of injury. He conducted a 

physical examination which revealed restricted range of motion in the lumbar spine. Dr. Boiardo 

also noted there were no lower extremity neurologic deficits. Lumbar x-rays showed no 

evidence of joint space narrowing. An MRI scan was obtained, but the results were not available 

for review. Dr. Boiardo did not provide a specific diagnosis. He recommended ice, antiinflammatory medication, physical therapy and electromyography (EMG). 

Appellant returned to Dr. Boiardo for a follow-up examination on October 28, 2012. 

Dr. Boiardo noted that she “presents after work[-]related injury, now with severe low back pain.” 

Appellant reported a recent setback where she could not arise from a bent kyphotic position and 

was having severe low back pain with sciatica. On physical examination, range of motion of the 

lumbar spine was restricted, straight leg raise was restricted and she had marked paralumbar 

spasm. Dr. Boiardo also noted evidence of a trigger point in the area of the supracluneal region, 

 3

 The December 31, 2012 nonmerit decision advised appellant of her right to file an appeal with the Board 

regarding the denial of her hearing request. This was the only avenue of review with respect to OWCP’s hearing 

representative’s December 31, 2012 decision. 

4

 Dr. Yeh is Board-certified in emergency medicine. 

5

 Appellant sustained a work-related injury on March 23, 2011, which OWCP accepted for contusion of buttock 

and contusion of back. 

6

 The April 4, 2013 lumbar MRI scan revealed right foraminal disc extrusion at L4-5 with crowding of the L4 

nerve root and degenerative changes at L5-S1. 
4

which he treated with a corticosteroid injection. Appellant was unable to work. Dr. Boiardo 

referred her for physical therapy and pain management. 

In an April 26, 2013 report, Dr. Boiardo noted that appellant attributed her low back pain 

and sciatic radiculopathy to three work-related incidents; most recently a March 20, 2011 slip 

and fall on a wet floor. He first examined her on August 31, 2012. Dr. Boiardo reviewed the 

findings on examination from August 31 and October 28, 2012. He reported seeing appellant in 

December 2012 and January 2013 and noted that she had gone to the emergency room on 

February 2, 2013 for complaints of severe low back pain and sciatica. When seen on 

February 12, 2013, appellant’s physical examination revealed restricted range of motion and 

restricted straight leg raise. There were no lower extremity neurologic deficits. Dr. Boiardo last 

saw appellant on March 3, 2013, at which time she complained of severe low back pain and 

sciatica. According to appellant’s estimation, she was unable to work. Dr. Boiardo noted that 

appellant was in marked distress. Appellant’s systemic examination was unchanged and her 

musculoskeletal examination was essentially unchanged as well. She was able to heel walk and 

toe walk with difficulty and her lumbar range of motion was restricted in flexion and extension. 

Dr. Boiardo also reported paralumbar spasm. There were no neurologic deficits. A 

September 6, 2012 EMG was noted to be consistent with bilateral L4-5 and right L5-S1 

radiculopathy/radiculitis. Dr. Boiardo diagnosed discogenic disease at L4-5 with herniated disc 

at L5-S1. He expressed familiarity with appellant’s job description and noted that her work 

activities had aggravated her medical condition. Dr. Boiardo further stated that her current 

lumbar condition was causally related to the injuries she sustained at work on August 10 and 

December 8, 2012 and February 2, 2013. 

In a February 11, 2014 decision, OWCP denied appellant’s December 30, 2013 request 

for reconsideration finding it was untimely and she failed to establish clear evidence of error 

with respect to OWCP’s October 11, 2012 merit decision. 

LEGAL PRECEDENT 

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

matter of right.7

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.8 One such limitation is that the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.9

 The one-year period begins on the date of the original decision. However, a 

right to reconsideration within one year accompanies any subsequent merit decision on the 

issues.10 When a request for reconsideration is untimely, OWCP will undertake a limited review 

 7

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

8

 20 C.F.R. § 10.607. 

9 Id. at § 10.607(a). The one-year period begins on the date of the original decision and an application for 

reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). 

10 D.G., 59 ECAB 455 (2008). 
5

to determine whether the application presents clear evidence of error on the part of OWCP in its 

most recent merit decision.11

ANALYSIS 

Appellant’s request for reconsideration is dated December 24, 2013. OWCP received it 

on December 30, 2013, which was more than one year after the October 11, 2012 decision, the 

most recent merit decision of record.12 Based on OWCP’s date of receipt, the request for 

reconsideration was untimely.13 Because appellant’s request for reconsideration was untimely, 

she must demonstrate clear evidence of error on the part of OWCP in denying her 

August 10, 2012 traumatic injury claim.14

OWCP denied the claim because appellant failed to establish a medical diagnosis 

attributable to the August 10, 2012 employment incident. Appellant had been handling third 

class mail on a delivery bar code sorter machine and was required to lift mail out of a post-con to 

load on the feeder. She attributed her injury to bending into a post-con to grab mail. Although 

appellant was diagnosed with a lumbosacral sprain with lumbar radiculopathy, the medical 

evidence she submitted did not identify the August 10, 2012 employment incident as a causative 

factor. This includes the emergency department treatment notes and the information provided by 

both Dr. Banigo and Dr. Okoya. Consequently, OWCP denied the claim on October 11, 2012 

for failure to establish fact of injury. 

Thereafter, appellant submitted additional treatment records associated with her 

August 10, 2012 emergency room visit. However, the history of injury included in the treatment 

records reflect that she was “lifting heavy metal plate at work and bent over and pulled her 

[right] lower back...” which was inconsistent with her allegations to OWCP. Given the 

inaccurate history of injury, the emergency room records do not raise a substantial question 

concerning the correctness of OWCP’s October 11, 2012 decision. 

 11 20 C.F.R. § 10.607(b). 

12 Counsel mistakenly believed that appellant had one year to request reconsideration following OWCP’s hearing 

representative’s December 31, 2012 nonmerit decision. See supra note 3. 

13 Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the 

“received date” in the Integrated Federal Employees’ Compensation System. Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (October 2011). 

14 Supra note 11. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that 

was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise and 

explicit and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 

227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary conclusion. 

Id. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision is 

insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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. Thankamma Mathews, 44 

ECAB 765, 770 (1993). 
6

Dr. Boiardo’s three reports are similarly deficient. His August 31 and October 28, 2012 

reports do not identify a work-related injury occurring on August 10, 2012. The initial report 

noted that appellant worked for the employing establishment, but did not include either a history 

of injury or a specific diagnosis. In his October 28, 2012 report, Dr. Boiardo noted appellant was 

seen in follow-up for a work-related injury, but again he did not identify a date of injury, a cause 

of injury or a specific diagnosis. He ultimately diagnosed discogenic disease at L4-5 with 

herniated disc at L5-S1. Dr. Boiardo’s April 26, 2013 report attributed appellant’s current 

lumbar condition to work-related injuries on August 10 and December 8, 2012 and 

February 2, 2013. He did not provide a description of the August 10, 2012 employment incident. 

The evidence submitted on reconsideration similarly fails to establish a medical diagnosis 

in connection with the August 10, 2012 employment incident, which appellant described as 

bending into a post-con to grab mail. Accordingly, she failed to establish clear evidence of error 

on the part of OWCP in denying her August 10, 2012 traumatic injury claim. 

CONCLUSION 

Appellant’s December 30, 2012 request for reconsideration was untimely, and she failed 

to demonstrate clear evidence of error. Therefore, she is not entitled to further merit review. 
7

ORDER 

IT IS HEREBY ORDERED THAT the February 11, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 1, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board