United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

DEPARTMENT OF THE NAVY, MARINE 

CORPS LOGISTIC BASE, Albany, GA, 

Employer 

__________________________________________ 

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Docket No. 15-1571 

Issued: November 5, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 15, 2015 appellant filed a timely appeal from a June 25, 2015 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). The last merit decision in this 

matter was a December 11, 2013 decision of the Board, which became final after 30 days of 

issuance1

 and is not subject to further review.2 Since more than 180 days has elapsed since 

December 11, 2013 and the filing of this appeal, and 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.4 

 1

 20 C.F.R. § 501.7(a); see A.K., Docket No. 15-0451 (issued April 13, 2015). 

2 Id. at § 501.6(d). 

3

 5 U.S.C. § 8101 et seq. 

4

 Appellant submitted new evidence with his appeal. The Board, however, has no jurisdiction to review new 

evidence on appeal; see 20 C.F.R. § 501.2(c). 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

was untimely and insufficient to establish clear evidence of error. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated December 30, 2009, 

the Board affirmed June 19, August 20, and October 15, 2008 nonmerit OWCP decisions 

denying appellant’s requests for a review of the written record and a July 16, 2008 nonmerit 

decision denying his request for reconsideration as untimely and insufficient to establish clear 

evidence of error.5 By decision dated December 11, 2013, the Board affirmed a May 10, 2013 

decision denying his request for a review of the written record.6

 The Board further affirmed an 

August 9, 2013 decision terminating appellant’s authorization for medical benefits effective 

February 13, 2013 as he had no further need for treatment due to his August 6, 2001 employment 

injury.7

 The Board found that the opinion of Dr. Douglas Hein, a Board-certified orthopedic 

surgeon and OWCP referral physician, constituted the weight of the evidence and established 

that appellant had no residuals of his accepted work injury of lumbar sprain. The Board 

considered the opinion of Dr. Jeffrey A. Fried, the treating Board-certified orthopedic surgeon, 

that appellant’s work injury aggravated preexisting spondylolisthesis but found that his opinion 

was not supported by rationale and thus of diminished probative value. The facts and the 

circumstances as set forth in the prior decisions are incorporated by reference. 

On December 7, 2013 appellant filed a claim for a recurrence of a medical condition on 

December 6, 2012 causally related to his August 6, 2001 work injury. By letter dated March 21, 

2014, OWCP informed him that as it had terminated his authorization for medical benefits, it 

could not need to adjudicate a claimed recurrence. It advised appellant to follow the appeal 

rights accompanying the December 12, 2013 Board decision. 

Appellant appealed the March 21, 2014 OWCP letter to the Board. In an order dated 

November 12, 2014, the Board dismissed the appeal after finding that the March 21, 2014 

 5

 Docket No. 09-321 (issued December 30, 2009). On April 28, 2008 the Board issued an order dismissing 

appeal as there was no adverse decision within its jurisdiction. Order Dismissing Appeal, Docket No. 07-1313 

(issued April 28, 2008). On September 29, 2008 the Board dismissed an appeal on appellant’s request so that he 

could request reconsideration before OWCP. Order Dismissing Appeal, Docket No. 08-1575 (issued 

September 29, 2008). 

6

 Docket No. 13-1953 (issued December 11, 2013). OWCP accepted that on August 6, 2001 appellant, then a 

46-year-old heavy mobile mechanic, sustained lumbar strain in the performance of duty. Dr. J. Kenneth Burkus, a 

Board-certified orthopedic surgeon, released appellant to resume work on April 29, 2002 without restrictions due to 

his work injury. He noted that appellant had preexisting lumbar spondylosis and stenosis. 

7

 In its February 13 and August 9, 2013 decisions, OWCP indicated that it was terminating appellant’s entitlement 

to medical benefits and any future wage-loss compensation. As appellant was not receiving compensation for his 

August 6, 2001 injury, the Board adjudicated the issue as to whether OWCP met its burden to proof to terminate 

authorization for medical benefits. 
3

correspondence from OWCP did not constitute a final adverse decision over which it could 

exercise jurisdiction.8

On an appeal request form received by OWCP on May 8, 2015, appellant requested 

reconsideration. He maintained that he was entitled to benefits for his August 6, 2001 

employment injury. Appellant further contended that OWCP should issue a final adverse 

decision on the issue of further benefits in accordance with the Board’s November 12, 2014 

order. 

In support of his reconsideration request, appellant submitted additional medical 

evidence. 

In a report dated January 16, 2013, Dr. Fried indicated that appellant’s lumbar sprain due 

to his August 6, 2001 employment injury had not resolved. He also diagnosed progressive L5-

S1 spondylolisthesis. 

On July 17, 2013 Dr. Fried diagnosed cervical disc displacement, acquired 

spondylolisthesis, right carpal tunnel syndrome, right contracture of the little finger, bursitis of 

the left elbow, and right shoulder joint pain. He advised that appellant had 23 percent whole 

person impairment due to cervical radiculitis. 

A September 17, 2013 magnetic resonance imaging (MRI) scan study revealed 

anterolisthesis of L4 over L5 as a result of advanced facet arthrosis and mild-to-moderate 

bilateral neural foraminal stenosis at L2 through L5. 

The evidence also included a January 23, 2012 report from Dr. Fried already of record. 

Dr. Fried had diagnosed cervical disc displacement, right carpal tunnel syndrome, right 

contracture of the little finger, acquired spondylolisthesis, and left elbow bursitis. 

On December 19, 2014 Dr. Hein filed a motion in state court to dismiss appellant’s action 

for damages for alleged medical negligence. He also filed a motion in state court to extend the 

time for discovery. 

On March 19, 2015 Dr. Fried noted appellant’s history of an August 6, 2001 injury. He 

advised that he had a “previous quiescent back condition, which was aggravated by the accident 

and has not returned to its baseline state. Therefore, I believe the spondylolisthesis should be 

considered a work-related condition.” 

By decision dated June 25, 2015, OWCP denied appellant’s request for reconsideration as 

it was not timely and failed to demonstrate clear evidence of error. 

On appeal appellant’s argues that OWCP improperly failed to adjudicate his December 7, 

2013 claim for recurrence. 

 8 Order Dismissing Appeal, Docket No. 14-1301 (issued November 12, 2014). 
4

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

 As once such limitations, 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

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 of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized 

medical report which, if submitted prior to the 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 the case on the Director’s own motion.12 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 it committed an error.13

ANALYSIS 

The Board finds that OWCP properly determined 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.14 As appellant’s request for 

reconsideration was not received by OWCP until May 9, 2015, more than one year after issuance 

of the last merit decision dated December 11, 2013, it was untimely. Consequently, he must 

demonstrate clear evidence of error in OWCP’s decision to terminate medical benefits effective 

February 13, 2013.15

In his May 8, 2015 reconsideration request, appellant contended that OWCP should issue 

a final decision regarding his recurrence claim. Because OWCP has not issued a final decision 

regarding the alleged recurrence of a medical condition, the Board has no jurisdiction over this 

 9 Supra note 3. 

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 Id. at § 10.607(b). 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011). 

13 Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 

ECAB 143 (2003). 

14 20 C.F.R. § 10.607(a). 

15 Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 
5

matter.16 Appellant’s argument is not relevant to the issue of whether OWCP improperly 

terminated his authorization for medical benefits and thus is insufficient to demonstrate clear 

evidence of error.17

Appellant also alleged that he was entitled to benefits for his August 6, 2001 employment 

injury. While he expressed disagreement with OWCP’s termination of his benefits, his general 

allegation does not establish error in the OWCP’s decision.18

The underlying issue is whether OWCP properly terminated appellant’s entitlement to 

medical benefits as he had no residuals of his accepted lumbar strain. This issue is medical in 

nature. On reconsideration, appellant resubmitted a report from Dr. Fried dated 

January 23, 2012. In resubmitting this report, he did not explain how this evidence revealed that 

OWCP had committed an error in terminating his medical benefits. The resubmission of this 

evidence does not raise a substantial question as to the correctness of OWCP’s decision and thus 

does not establish clear evidence of error.19

Appellant further submitted a January 16, 2013 report from Dr. Fried. Dr. Fried opined 

that the lumbar sprain due to appellant’s August 6, 2001 work injury lumbar sprain had not 

resolved. He additionally diagnosed L5-S1 spondylolisthesis. While Dr. Fried’s report is 

generally supportive of appellant’s claim that he had residuals of his lumbar sprain, this is not 

sufficient to show clear evidence of error, which 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.20

On July 17, 2013 Dr. Fried diagnosed cervical disc displacement, acquired 

spondylolisthesis, right carpal tunnel syndrome, right contracture of the little finger, bursitis of 

the left elbow, and right shoulder joint pain. He advised that appellant had 23 percent whole 

person impairment due to cervical radiculitis. An MRI scan study dated September 17, 2013 

showed anterolisthesis of L4 over L5 as a result of advanced facet arthrosis and 

mild-to-moderate bilateral neural foraminal stenosis at L2 through L5. Dr. Fried’s July 17, 2013 

report, the September 17, 2013 MRI scan study, and the motions submitted in state court by 

Dr. Hein do not address the relevant issue of whether appellant had further need for medical 

treatment due to his lumbar sprain. Evidence which is irrelevant to the issue which was decided 

by OWCP does not establish clear evidence of error.21

 16 Id. at §§ 501.2(c) and 501.3. 

17 To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided by 

OWCP. See R.C., Docket No. 15-0097 (issued August 21, 2015). 

18 See Leona N. Travis, 43 ECAB 227 (1991). 

19 See H.R., Docket No. 14-0964 (issued December 17, 2014); J.J., Docket No. 13-1363 

(issued November 6, 2013). 

20 See B.W., Docket No. 15-0892 (issued August 26, 2015); D.G., 59 ECAB 455 (2008). 

21 E.M., Docket No. 14-0667 (issued May 7, 2014); Howard Y. Miyashiro, 51 ECAB 253 (1999). 
6

On March 19, 2015 Dr. Fried opined that appellant’s August 6, 2001 work injury 

aggravated a preexisting back condition and that the aggravation continued. He further found 

that OWCP should accept spondylolisthesis as employment related. Again, as discussed, clear 

evidence of error is a difficult standard. It is not enough to show that evidence could be 

construed so as to produce a contrary conclusion. Instead, the evidence must shift the weight in 

appellant’s favor.22 Dr. Fried’s report is insufficient to show clear error by OWCP in its 

termination of appellant’s medical benefits. 

As the evidence submitted by appellant is insufficient to raise a substantial question as to 

the correctness of OWCP’s last merit decision, he has not established clear evidence of error.23 

On appeal appellant requests that OWCP issue a merit decision on his recurrence of a 

medical condition. As previously discussed, OWCP has not issued a final decision on this issue. 

The Board notes, however, that a claimant can establish entitlement to continuing medical 

benefits notwithstanding the prior termination decision if the medical evidence substantiates that 

he requires further medical treatment due to his accepted employment injury.24 Upon return of 

the case record, OWCP should adjudicate whether appellant sustained a recurrence of a medical 

condition beginning December 6, 2012 causally related to his August 6, 2001 employment 

injury. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration as it 

was untimely and insufficient to establish clear evidence of error. 

 22 See M.N., Docket No. 15-0758 (issued July 6, 2015). 

23 See Veletta C. Coleman, 48 ECAB 367 (1997). 

24 See J.F., Docket No. 12-0955 (issued April 11, 2013). 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 25, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 5, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board