United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-0550 

Issued: January 28, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 January 12, 2015 appellant filed a timely appeal from the August 22, September 23, 

and December 8, 2014 nonmerit decisions of the Office of Workers’ Compensation Programs 

(OWCP).1

 The last merit decision in this case was the Board’s May 9, 2008 decision. As there 

has been no OWCP merit decision issued within one year of the filing of this appeal,2

 pursuant to 

the Federal Employees’ Compensation Act3

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

Board lacks jurisdiction over the merits of this case. 

 1

 On January 12, 2015 appellant submitted a timely request for oral argument in connection with OWCP’s 

December 8, 2014 decision. After exercising its discretion, the Board, in an order issued on June 2, 2015, denied 

her request for oral argument, finding that the arguments on appeal could be adequately addressed in a decision 

based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0550 (issued 

June 2, 2015). 

2

 For decisions issued prior to October 20, 2008, a claimant had up to one year to file an appeal to the Board. 20 

C.F.R. § 501.3(d)(2) (2007). 

3

 5 U.S.C. § 8101 et seq.
2

ISSUE 

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

reconsideration were untimely filed and failed to demonstrate clear evidence of error. 

On appeal, appellant contends that OWCP removed a chiropractor from her case without 

first giving her an opportunity to replace him with a qualified physician. 

FACTUAL HISTORY 

This case has previously been before the Board. 

On May 7, 1985 appellant, then a 28-year-old letter sorter machine operator, filed a 

traumatic injury claim (Form CA-1) under File No. xxxxxx086 alleging that she sustained an 

ankle, left hip, and left neck injuries on that day as a result of slipping down a flight of stairs at 

work. OWCP accepted the claim for cervical and lumbar strains, and left hip and left ankle 

strains. Subsequently, it accepted that appellant sustained a recurrence of disability on 

July 24, 1985. In a claim filed under File No. xxxxxx103, OWCP accepted that she sustained 

cervical and thoracic strain, and left trapezius myositis while in the performance of duty on 

July 24, 1985. It combined this claim and the instant claim under File No. xxxxxx086 into a 

master claim assigned File No. xxxxxx086. 

In decisions dated September 14, 2000, August 4, 2003, and February 9, 2005, the Board 

affirmed OWCP’s nonmerit decisions denying appellant’s requests for reconsideration regarding 

a denial of recurrence of disability as they were untimely filed and failed to demonstrate clear 

evidence of error.4

In a December 8, 2006 notice, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on the impartial medical opinion of Dr. Mukund 

Komanduri, a Board-certified orthopedic surgeon, who opined that appellant no longer had any 

residuals of her accepted May 7 and July 24, 1985 employment injuries. 

In a January 18, 2007 decision, OWCP finalized the termination of wage-loss 

compensation and medical benefits based on Dr. Komanduri’s impartial medical opinion. 

By letter dated January 29, 2007, appellant requested an oral hearing before an OWCP 

hearing representative. In a decision dated November 15, 2007, an OWCP hearing 

representative affirmed the January 18, 2007 termination decision. He found that 

Dr. Komanduri’s impartial medical opinion represented the special weight of the medical 

evidence. On December 18, 2007 appellant, through counsel, appealed to the Board. 

In a May 9, 2008 decision,5

 the Board affirmed the January 18 and November 15, 2007 

termination decisions. The Board found that OWCP had met its burden of proof to terminate 

 4

 Docket No. 99-0958 (issued September 14, 2000), Order Denying Petition for Reconsideration, Docket No. 99-

0958 (issued June 5, 2001); Docket No. 03-0956 (issued August 4, 2003) and Docket No. 94-1741 (issued 

February 9, 2005). 

5

 Docket No. 08-0571 (issued May 9, 2008). 
3

appellant’s medical benefits on January 18, 2007 based on Dr. Komanduri’s impartial medical 

opinion. The Board also found that she had failed to establish that she had any continuing 

employment-related residuals after January 18, 2007. 

By order dated April 15, 2009, the Board remanded the case for consolidation of 

appellant’s prior claims.6

 Following the remand, OWCP denied appellant’s request for 

reconsideration on a number of occasions because the requests were untimely filed and failed to 

establish clear evidence of error. The December 15, 2011 OWCP decision was appealed to the 

board. By decision dated March 13, 2012, the Board affirmed the denial of appellant’s 

reconsideration request because it was untimely and failed to establish clear evidence of error.7 

Appellant continued filing requests for reconsideration and an appeal was filed to the 

Board of OWCP’s March 18, 2013 decision. By a May 16, 2014 Order Remanding Case, the 

Board found that OWCP had improperly designated appellant’s request for reconsideration as 

from its denial of recurrence rather than from its termination decision. The Board remanded the 

case for OWCP to correct its procedural error.8

Following the Board’s May 16, 2014 remand, OWCP issued a July 1, 2014 decision, 

denied appellant’s request for reconsideration of its January 18, 2007 termination decision 

finding it was untimely filed and failed to demonstrate clear evidence of error. 

On July 8, 2014, appellant again requested reconsideration of OWCP’s January 18, 2007 

termination decision. She contended that Dr. Komanduri’s report was not entitled to the weight 

of the medical evidence as he focused on Marfan syndrome, the shoulder, and cervical 

degenerative disease, conditions which had not been accepted by OWCP. Dr. Komanduri did 

not discuss her accepted employment-related left hip, left ankle, left trapezius, myalgia/myositis, 

and thoracic conditions. 

In a report dated July 15, 2014, Dr. Sylvia A. De La Llana, a physiatrist, provided a 

history of the May 7, 1985 employment injuries, and appellant’s employment, medical treatment, 

and personal background. She noted appellant’s complaints of neck pain which radiated into her 

legs, and bilateral shoulders, bilateral hips, and low back pain. Dr. De La Llana further noted her 

difficulty with performing activities of daily living (ADL). She reported physical examination 

findings and diagnostic test results. Dr. De La Llana provided nonindustrial diagnoses of Marfan 

syndrome by history and connective tissue disorder. She provided industrial diagnoses related to 

appellant’s accepted claims which included chronic lumbar sprain and strain with myofasciitis, 

lumbar disc disease with radiculopathy at L5-S1, chronic bilateral hip, cervical spine, bilateral 

shoulder, thoracic spine, and left ankle sprain and strain with myofasciitis, chronic left ankle 

sprain and strain with internal derangement, cervical spine radiculopathy, and loss of cervical 

lordosis with a right vertebral artery dissection. Dr. De La Llana opined that based on 

appellant’s history, radiographic data, and mechanism of injury, her subjective complaints were 

consistent with the injuries sustained at the time of her fall. She further opined that because 

 6

 Docket No. 09-42, Order Remanding Case (issued April 15, 2009). 

7

 Docket No. 12-0554 (issued March 13, 2012), Order Denying Petition for Reconsideration, Docket No. 12-0554 

(issued September 14, 2012). 

8

 Docket No. 13-1824, Order Remanding Case (issued May 16, 2014). 
4

appellant had been diagnosed with unspecified connective tissue disease and had received 

treatment for Marfan syndrome, the musculoskeletal injuries during her fall at work had 

accelerated and exacerbated her above-noted medical condition. Dr. De La Llana advised that 

her symptoms were aggravated and exacerbated when she performed her usual and customary 

work duties which included walking, standing, sitting, prolonged walking, standing, and sitting, 

bending, stooping, lifting, carrying, twisting, pushing, pulling, and reaching. She related that 

these activities caused an aggravation and exacerbation of appellant’s symptoms which were a 

direct result of continuous trauma in the course of her job at the employing establishment. 

Dr. De La Llana noted that repetition of the above-noted activities prolonged weight bearing 

over a period of seven to eight years and had accelerated the osteoarthritic process causing the 

development of progressive pain, disc disease, osteoarthritic changes, significant functional 

difficulties with performance of the essential demands of appellant’s job, and difficulty 

performing activities of daily living. She concluded that aggravation of appellant’s connective 

tissue disorder was permanent. 

In an August 22, 2014 decision, OWCP denied appellant’s request for reconsideration as 

it was untimely filed and failed to demonstrate clear evidence of error. 

On August 28, 2014 appellant yet again requested reconsideration of the January 18, 

2007 termination decision and, by decision dated September 23, 2014, OWCP again denied 

appellant’s request for reconsideration as it was untimely filed and failed to demonstrate clear 

evidence of error. 

Appellant again exercised her rights to reconsideration and on October 26, 2014, 

contended that her request was not untimely filed. Appellant asserted that OWCP erred in 

treating Dr. Gary Ogurkiewicz, a chiropractor, as her attending physician, as he was not 

considered a physician under FECA, and finding that his May 14, 1985 report was sufficient to 

establish that her work-related conditions had ceased. She further asserted that it erred in 

ordering her to see Dr. Michael R. Treister, a Board-certified orthopedic surgeon and an OWCP 

referral physician, for a second opinion evaluation. 

In a November 11, 2014 addendum to her request for reconsideration, appellant 

contended that she was entitled to disability compensation for the period November 7, 1986 to 

January 18, 2007. 

Appellant resubmitted a November 6, 1986 attending physician’s supplemental report 

(Form CA-20a) from Dr. Treister who diagnosed subjective cervical pain and indicated with an 

affirmative mark that the diagnosed condition was due to appellant’s accepted May 7, 1985 

employment injuries. He released her to return to work without restrictions on the day of his 

examination. 

Appellant also resubmitted Dr. De La Llana’s July 15, 2014 report. 

In a December 8, 2014 decision, OWCP denied appellant’s reconsideration request as it 

was untimely filed and failed to demonstrate clear evidence of error. 
5

LEGAL PRECEDENT 

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

authority under 5 U.S.C. § 8128(a) of FECA.9 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 

decision for which review is sought.10 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 application must establish, on its face, that such decision was erroneous.11

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.12

ANALYSIS 

The Board finds that OWCP properly determined that appellant had failed to file a timely 

request for reconsideration. OWCP procedures provide that the one-year time limitation period 

for requesting reconsideration begins on the date of the original OWCP decision.13 A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues. 

The most recent merit decision in this case was issued by the Board on May 9, 2008. 

Appellant’s requests for reconsideration were not received by OWCP until July 8, August 28, 

and October 26, 2014, more than one year after the May 9, 2008 merit decision. Therefore, they 

were untimely filed. 

The Board also finds that appellant’s untimely requests for reconsideration failed to 

demonstrate clear evidence of error. The Board’s May 9, 2008 merit decision affirmed OWCP’s 

January 18 and November 15, 2007 decisions finding that OWCP met its burden of proof to 

terminate appellant’s benefits based on Dr. Komanduri’s impartial medical opinion that she no 

longer had any residuals or disability causally related to her accepted May 7 and July 24, 1985 

 9

 5 U.S.C. § 8101 et seq. 

10 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). 

11 20 C.F.R. § 10.607(b). 

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

13 Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.4(b) (October 2011). 
6

employment-related injuries. In her untimely reconsideration requests, appellant contended that 

Dr. Komanduri’s report was not entitled to the weight of the medical evidence as he focused on 

Marfan syndrome, the shoulder, and cervical degenerative disease, conditions which had not 

been accepted by OWCP. She stated that he did not discuss her accepted employment-related 

left hip, left ankle, left trapezius, myalgia/myositis, and thoracic conditions. Appellant further 

contended that her request for reconsideration was not untimely filed. She asserted that OWCP 

erred in treating Dr. Gary Ogurkiewicz, a chiropractor, as her attending physician and finding 

that his May 14, 1985 report was sufficient to establish that her work-related conditions had 

ceased. Appellant also asserted that it erred in ordering her to see Dr. Treister for a second 

opinion evaluation. She contended that she was entitled to disability compensation from 

November 7, 1986 to January 18, 2007. Lastly, appellant contended that she did not receive a 

proposed notice of termination of her compensation benefits. However, these contentions do not 

establish error on the part of OWCP, but merely repeat arguments previously raised on prior 

appeals before the Board. The Board previously affirmed OWCP’s finding that appellant’s 

contentions failed to establish clear evidence of error. The Board finds that her arguments on 

reconsideration are insufficient to raise a substantial question concerning the correctness of 

OWCP’s termination of her compensation benefits or to shift the weight of the evidence in her 

favor. Also, repetitive or cumulative evidence is insufficient to shift the weight of the evidence 

in favor of the claimant.14

Dr. De La Llana’s July 15, 2014 report found that appellant’s diagnosed lumbar, bilateral 

hip, cervical spine, bilateral shoulder, thoracic spine, and left ankle conditions were consistent 

with her accepted employment-related injuries and that these conditions were aggravated or 

exacerbated by her regular work duties. She further found that because appellant had been 

diagnosed with unspecified connective tissue disease and had received treatment for Marfan 

syndrome, the musculoskeletal injuries during her fall at work had accelerated and exacerbated 

her above-noted medical condition. While this report offers some support for causal 

relationship, the Board has held that the term clear evidence of error is intended to represent a 

difficult standard. 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.15 The 

Board finds that Dr. De La Llana’s report is insufficient to shift the weight of the evidence in 

favor of appellant’s claim or raise a substantial question that OWCP erred in terminating her 

compensation benefits. 

Appellant resubmitted a November 6, 1986 Form CA-20a report from Dr. Treister which 

was previously of record. The resubmission of this evidence does not shift the weight of the 

evidence in her favor or raise a substantial question as to the correctness of OWCP’s termination 

decision.16 Appellant did not explain how resubmission of Dr. Treister’s report was positive, 

precise and explicit in manifesting on its face that OWCP committed an error in terminating her 

compensation benefits. It is not apparent how resubmission of this evidence is sufficient to raise 

 14 D.E., 59 ECAB 438 (2008); A.F., Docket No. 11-1297 (issued December 20, 2011). 

15 D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5(a) 

(October 2011). 

16 See cases cited, supra note 12. 
7

a substantial question as to the correctness of OWCP’s decision. Thus, this resubmitted evidence 

is insufficient to show clear evidence of error. 

The arguments and evidence submitted by appellant are insufficient to raise a substantial 

question as to the correctness of the last merit decision. Consequently, appellant has not met her 

burden to establish clear evidence of error on the part of OWCP such that it erred in denying 

merit review. 

On appeal, appellant reiterated an assertion that she made before the Board indicating that 

the termination of her benefits was improper as it removed a chiropractor from her case without 

first giving her an opportunity to replace him with a qualified physician. However, as noted, the 

Board does not have jurisdiction over the merits of the claim. As explained, appellant has not 

established clear evidence of error by OWCP. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s requests for reconsideration 

because they were untimely filed and failed to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the December 8, September 23, and August 22, 

2014 decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: January 28, 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