United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Riverdale, MD, Employer 

__________________________________________ 

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Docket No. 15-0825 

Issued: July 29, 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 H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 13, 2015 appellant filed a timely appeal of a September 4, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision 

was issued in this case on November 13, 1985, pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. § 501.2(c) and 501.3, the Board lacks jurisdiction 

over the merits of this case.2

 

ISSUE 

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

reconsideration of a November 13, 1985 decision was untimely and failed to show clear evidence 

of error. 

 1

 5 U.S.C. § 8101 et seq. 

2

 For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. See 20 

C.F.R. § 501.3(d)(2) (April 1985). 
2

FACTUAL HISTORY 

The case has previously been before the Board on prior appeals. There have been six 

traumatic injuries to appellant’s back accepted by OWCP: a lumbar strain on December 19, 

1981 (File No. xxxxxx669); acute low back strain, cervical strain, and psychogenic pain disorder 

on December 17, 1985 (File No. xxxxxx047); aggravation of degenerative disc disease C5-6 and 

C6-7 on May 10, 1988 (File No. xxxxxx048); cervical strain, lumbar strain, and herniated C6-7 

disc on November 28, 1988 (File No. xxxxxx4l2); lumbar strain on June 19, 1999 (File No. 

xxxxxx644); and aggravation of preexisting cervical spine conditions on November 23, 2005 

(File No. xxxxxx89l).3

Since the issue in this case concerns the December 19, 1981 injury, the Board will review 

the relevant facts regarding this injury. Appellant alleged that she sustained an injury on 

December 19, 1981 when she bent down to lift two trays of mail. As noted above, OWCP 

accepted the claim for a lumbar strain. Appellant received compensation for intermittent periods 

through September 9, 1982. 

In a report dated December 19, 1983, Dr. Fred Nelson, an orthopedic surgeon, indicated 

that appellant was seen at the request of the employing establishment. He provided results on 

examination, noting contradictory findings. Dr. Nelson stated that appellant had a chronic low 

back sprain that was related to the December 19, 1981 injury. In a report dated April 1, 1985, he 

provided results on examination. Dr. Nelson stated that appellant had a chronic low back sprain 

and her current complaints were probably related to the December 19, 1981 injury. He indicated 

that appellant should have a thermogram performed. In a report dated May 30, 1985, Dr. Nelson 

reported the results of the thermogram were normal. 

By decision dated November 13, 1985, OWCP found that appellant was not entitled to 

continuing compensation for wage-loss or medical benefits after September 9, 1982. It noted 

that the thermogram was normal and previous tests were within normal limits. By decision dated 

April 19, 2000, OWCP denied merit review of the claim. 

In a decision dated April 12, 2002, the Board affirmed the April 19, 2000 decision.4

 The 

Board noted that appellant had returned to work in November 1985, and she argued she should 

receive compensation until that time. The Board found that her request for reconsideration was 

insufficient to warrant merit review of the claim. 

By decision dated November 22, 2006, the Board affirmed OWCP decisions dated 

May 27 and January 28, 2005, denying a claimed recurrence of disability commencing 

April 2004 causally related to appellant’s cervical condition.5

On February 19, 2009 appellant requested reconsideration of the November 13, 1985 

decision. She submitted a March 19, 1984 report from Dr. Bruce Smoller, a Board-certified 

 3

 The master file for all of these claims is File No. xxxxxx047. 

4

 Docket No. 00-2528 (issued April 22, 2002). 

5

 Docket No. 06-0263 (issued November 22, 2006). 
3

neurologist, who indicated that appellant had sustained a lumbosacral strain on December 19, 

1991 and presented now with some recurrence, which must be considered a new episode, and a 

retarded depression. Appellant also submitted a portion of a February 11, 1998 report from 

Dr. Bahman Sadr, a Board-certified orthopedic surgeon, who noted that appellant had chronic 

cervical and lumbar strains related to work injuries on December 19, 1981 and April 1985. 

By decision dated July 1, 2009, OWCP found that the reconsideration request was 

untimely and failed to show clear evidence of error. In a decision dated June 28, 2010, the Board 

found OWCP had properly denied appellant’s request for reconsideration of the November 13, 

1985 decision as it was untimely and failed to show clear evidence of error.6

 The Board noted 

that Dr. Nelson had acknowledged in his December 19, 1983 report that examination results 

were contradictory, and his brief opinion as to a chronic back strain related to the 1981 injury 

was of diminished probative value. In addition, the Board noted Dr. Smoller had reported in his 

March 19, 1984 report that the back strain should have resolved three to four weeks after the 

incident. The history of the case as provided in the Board’s prior decisions is incorporated 

herein by reference. 

In a letter received by OWCP on June 12, 2014, appellant requested reconsideration of 

the November 13, 1985 decision arguing there was clear evidence of error. She stated that on 

September 27, 1983 an OWCP medical adviser had opined that she could return to regular 

duties, but OWCP never informed the employing establishment that she could return to work. 

According to appellant, she was sent to Dr. Nelson as a referee physician and a referee should be 

given special weight. Appellant argued that she had a chronic condition and should receive 

compensation from OWCP. She submitted the second page of a February 11, 1989 report from 

Dr. Sadr, and reports dated December 20, 2009, August 13, 2013, and April 11, 2014 from 

Dr. Phillip Schneider, an orthopedic surgeon. In the February 11, 1989 report, Dr. Sadr stated 

that appellant had chronic cervical and lumbar strains related to the December 19, 1981 and 

April 1983 injuries. In the December 20, 2009 report, Dr. Schneider provided results on 

examination and diagnosed lumbar herniated nucleus pulposus. He indicated in the August 13, 

2013 report that appellant should continue modified duty. In the April 11, 2014 report, 

Dr. Schneider diagnosed: cervical HNP, pseudoarthrosis, cervical radiculopathy, herniated 

lumbar disc, carpal tunnel syndrome, lumbar spondylosis, and spondylolisthesis. He noted that 

appellant reported her job had been abolished and the Department of Labor had “put her on total 

disability.” Dr. Schneider reported that “the effects of the work injury have not ceased” 

appellant was unable to perform her job. 

By decision dated September 4, 2014, OWCP found that appellant’s application for 

reconsideration was untimely. It further denied the application without merit review of the 

claim, finding that it did not show clear evidence of error by OWCP. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.7

 The 

 6

 Docket No. 09-2258 (issued June 28, 2010). 

7

 5 U.S.C. § 8128(a). 
4

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”8

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.9

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.10 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA.11 As one such limitation, 20 C.F.R. § 10.607 provides that an application 

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

review is sought.12 OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The 

evidence must be positive, precise and explicit and must manifest on its face that OWCP 

committed an error.13 

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 shift the weight of the evidence in favor of the claimant 

and raise a substantial question as to the correctness of OWCP’s decision.14 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.15 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.16 A determination of whether the claimant has 

established clear evidence of error entails a limited review of how the evidence submitted with 

the reconsideration request bears on the evidence previously of record.17

ANALYSIS 

The application for reconsideration in this case was received by OWCP on June 12, 2014 

and is untimely as it was received more than one year after issuance of the November 13, 1985 

 8

 20 C.F.R. § 10.605 (2012). 

9 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

10 Under section 8128 of FECA, “[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.” 

11 5 U.S.C. §§ 8101-8193. 

12 20 C.F.R. § 10.607 (2012). 

13 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

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

15 Jimmy L. Day, 48 ECAB 0652 (1997). 

16 Id. 

17 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).
5

decision. Appellant must therefore show clear evidence of error by OWCP to require a merit 

review of the claim. 

This is the second time the Board has reviewed the issue of clear evidence of error. In its 

June 28, 2010 decision, the Board noted that Dr. Nelson acknowledged in his December 19, 

1983 report there were contradictory examination results. The Board found that his opinion 

regarding an alleged employment-related condition was of diminished probative value and there 

was no clear evidence of error by OWCP. 

In her current reconsideration request, appellant states that Dr. Nelson was a referee 

physician.18 However, there is no evidence of record that Dr. Nelson was selected to resolve a 

conflict under 5 U.S.C. § 8123(a). As his December 19, 1983 report indicated, the employing 

establishment initially requested an examination. 

The medical evidence submitted on reconsideration does not establish clear evidence of 

error by OWCP. The reports from Dr. Schneider do not discuss the December 19, 1981 injury or 

disability after September 9, 1982, causally related to the December 19, 1981 employment 

injury. In his April 11, 2014 report, Dr. Schneider refers briefly to the effects of the “work 

injury,” without further explanation. As noted in the history of the case, appellant has six 

traumatic injuries. Dr. Schneider did not provide probative evidence with respect to the medical 

issue presented in the November 13, 1985 OWCP decision. With respect to the February 11, 

1998 report from Dr. Sadr, this was previously addressed by the Board in the June 28, 2010 

Board decision. 

The clear evidence of error standard is, as noted above, a difficult standard to meet. Even 

if the evidence could be construed to produce a contrary conclusion, this does not establish clear 

evidence or error. The Board finds that OWCP properly denied the untimely application for 

reconsideration in this case. 

On appeal, appellant states that she believes errors were made in her case and her injury 

did not cease on September 9, 1982. She states that Dr. Nelson and Dr. Smoller supported her 

claim. The Board has previously addressed the evidence from Dr. Nelson and Dr. Smoller, and 

found that these reports do not establish clear evidence of error. Appellant also requests that the 

Board review the merits of the claim. As to the November 13, 1985 OWCP decision, appellant’s 

application was untimely, and therefore the only issue presented is whether there was clear 

evidence of error by OWCP. The merits of appellant’s claims are not before the Board in this 

appeal. 

 18 FECA provides that, if there is a disagreement between the physician making the examination for the United 

States and the physician of the employee, the Secretary shall appoint a third physician who shall make the 

examination. 5 U.S.C. § 8123(a). The implementing regulations state that if a conflict exists between the medical 

opinion of the employee’s physician and the medical opinion of either a second opinion physician or OWCP medical 

adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial 

examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case. 20 C.F.R. § 10.321. 
6

CONCLUSION 

The Board finds OWCP properly found that appellant’s request for reconsideration was 

untimely and failed to show clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 4, 2014 is affirmed. 

Issued: July 29, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board