United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.R., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 17-0343 

Issued: July 6, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 2, 2016 appellant filed a timely appeal from a June 16, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from the last merit decision dated June 1, 2015 to the filing of this appeal, 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 claim.2

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted new evidence following the June 16, 2016 decision. However, since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 

ECAB 126 (2005). 
2

FACTUAL HISTORY 

On December 11, 2013 appellant, then a 46-year-old bilateral contact representative, filed 

an occupational disease claim (Form CA-2) alleging that she developed a straightening of her 

cervical spine due to factors of her federal employment. She indicated that she first became 

aware of her condition and realized that it resulted from her federal employment on 

March 8, 2013. The employing establishment noted that appellant had not returned to work 

since March 11, 2013. OWCP accepted her claim for neck sprain.3

On June 12, 2014 appellant filed a claim for wage-loss compensation (Form CA-7) for 

the period April 21, 2013 to May 17, 2014. 

By letter dated June 24, 2014, OWCP advised appellant that the evidence received was 

insufficient to establish her disability compensation claim for the period April 21, 2013 through 

May 17, 2014 and ongoing. It requested that she submit additional medical evidence explaining 

how her accepted condition of neck sprain continued to cause her to be disabled from work over 

one year from the date of her last exposure to work factors. Appellant was afforded 30 days to 

submit the additional evidence. 

Appellant submitted various examination reports by Dr. Sanjay J. Chauhan, Boardcertified in psychiatry and neurology, dated July 2 to August 6, 2014. Dr. Chauhan related 

appellant’s complaints of neck pain and headaches after her March 8, 2013 injury. He indicated 

that on March 8, 2013 appellant became very anxious after receiving cold treatment from her 

supervisor, passed out, and fell down onto the floor, causing an injury to her head, cervical spine, 

and thoracic spine. Dr. Chauhan noted that appellant’s neck pain had also bothered her due to 

her customer service work on the telephone, which required prolonged positioning and repetitive 

neck movement. He reviewed appellant’s history, including diagnostic records, and provided 

examination findings of appellant’s cervical spine. Dr. Chauhan diagnosed cervical strain, 

cervical radiculopathy, and cervical spine stenosis. He also opined that appellant had continuous 

trauma or an occupational disease because of the type of work she had done, which required 

being in a static posture position sitting in front of the computer and using the telephone. 

Dr. Chauhan noted that appellant was disabled from March 8, 2013 through August 5, 2014, and 

ongoing. 

In a July 8, 2014 narrative report, Dr. Chauhan indicated that appellant was initially 

diagnosed with cervical spine sprain because that was the most likely diagnosis based on the type 

of injury that she incurred. He related that when appellant did not improve and her cervical 

symptoms persisted, along with burning paresthesia, additional diagnoses needed to be added to 

her claim. Dr. Chauhan explained that the additional diagnoses of cervical spinal stenosis and 

cervical radiculopathy would justify appellant’s periods of disability for a longer term. He 

reported that because appellant experienced severe pain and difficulty functioning she should be 

 3

 Appellant had previously filed a traumatic injury claim (Form CA-1) under OWCP File No. xxxxxx059 for 

injury on March 8, 2013 when she allegedly fell, hit her head on the floor, and injured her neck. OWCP denied the 

traumatic injury claim on May 10, 2013 as appellant did not meet her burden of proof to establish an injury in the 

performance of duty. An OWCP hearing representative affirmed the denial on January 31, 2014. 
3

considered temporarily totally disabled ongoing from March 8, 2013 due to her cervical spine 

injury. 

By decision dated September 3, 2014, OWCP denied appellant’s claim for disability 

compensation for the period April 21, 2013 through May 17, 2014. It found that the medical 

evidence of record was insufficient to establish that she was disabled from work during the 

claimed period due to the accepted neck sprain condition. OWCP determined that Dr. Chauhan’s 

medical reports were not sufficiently rationalized to explain how appellant’s diagnosed neck 

sprain had worsened to the extent that she was still unable to work since she had not been 

exposed to her workplace since March 8, 2013. 

On September 19, 2014 appellant requested an oral hearing before an OWCP hearing 

representative. 

Appellant provided diagnostic testing reports from 2013. In a July 25, 2013 x-ray report 

of appellant’s cervical spine, Dr. Donald Fitzgerald, a Board-certified radiologist, noted mild 

changes of degenerative spondylosis between C4 and C7. In a November 22, 2013 magnetic 

resonance imaging (MRI) scan report, Dr. Frank Tamura, a Board-certified radiologist, observed 

left central disc herniation with cord flattening at C6-C7 and left central disc herniation at C7-T1. 

Dr. Chauhan continued to treat appellant and provided progress reports dated 

September 12, 2014 to May 4, 2015, which were substantially similar to his previous reports. He 

indicated that appellant remained symptomatic and continued to suffer from persistent neck pain 

due to the type of work she was doing. Dr. Chauhan reviewed appellant’s medical records and 

provided physical examination findings similar to his previous reports. He reported that 

appellant should remain temporarily totally disabled from March 8, 2013 through June 4, 2015 

due to her cervical spine injury. Dr. Chauhan included a duty status report (Form CA-17), which 

indicated that appellant was temporarily totally disabled beginning March 11, 2013. 

Appellant also submitted a consultation report dated October 15, 2014 from Dr. Henry 

Aryan, a Board-certified neurosurgeon. Dr. Aryan noted that appellant sustained a March 2013 

work-related neck injury and still complained of neck pain and upper extremity radiculopathy. 

He reviewed appellant’s history and provided physical examination findings. Dr. Aryan reported 

mild cranial nerve deficits and no swelling or tenderness. Sensory examination showed 

significant numbness and tingling radiating down into both arms. 

In a December 5, 2014 work status note, Jennifer Roberts, a nurse practitioner, indicated 

that appellant was unable to work from December 4, 2014 through January 15, 2015. 

Dr. Rasheed Amireh, Board-certified in anesthesiology and pain medicine, also treated 

appellant and in a February 18, 2015 report related appellant’s complaints of ongoing neck pain 

and bilateral upper extremity pain. He reviewed appellant’s history and provided findings on 

physical examination. Dr. Amireh reported no tenderness to palpation and percussion and full 

range of motion. He diagnosed cervical radiculopathy, cervical degenerative disc disease, and 

cervical disc displacement. 

On March 18, 2015 a telephone hearing was held. Appellant described the neck 

symptoms she experienced prior to the March 8, 2013 employment incident and indicated that 
4

her symptoms worsened after March 8, 2013. She reviewed the medical treatment that she 

received and noted that Dr. Chauhan did not realize that her condition was more serious than a 

neck strain until he reviewed her MRI scan results. Appellant claimed that she had not worked 

since March 2013, but her neck symptoms continued to worsen. She asserted that she provided 

objective findings in Dr. Chauhan’s reports to establish that OWCP should expand her claim for 

more serious conditions. 

Appellant provided an August 6, 2014 narrative report from Dr. Francisco Dorado, a 

Board-certified family practitioner, who noted that appellant had cervical stenosis with 

radiculopathy, which made her dizzy and at risk of falling. Dr. Dorado requested a new walker 

for appellant. 

In a June 1, 2015 decision, an OWCP hearing representative affirmed the September 3, 

2014 decision. She determined that the medical evidence of record failed to establish that 

appellant was disabled from work as of April 21, 2013 due to her accepted condition. The 

hearing representative found that Dr. Chauhan’s reports did not contain sufficient medical 

rationale explaining how appellant’s currently diagnosed cervical condition was related to her 

exposure to work conditions before March 8, 2013, the date she was last exposed to such work 

factors. 

Following the June 1, 2015 hearing representative’s decision, appellant resubmitted 

Dr. Chauhan’s May 4, 2015 medical report and Dr. Amireh’s February 18, 2015 medical report. 

In reports dated June 18, 2015 to May 3, 2016, Dr. Chauhan related appellant’s 

complaints of bilateral neck pain which radiated to the scapular region, burning paresthesia in the 

upper extremities, and headaches. He reviewed appellant’s history and described her 

employment duties as a bilingual contact representative and the March 8, 2013 employment 

incident. Upon physical examination, Dr. Chauhan observed straightening of the cervical spine 

and moderate muscle spasm or tightness upon palpation. Sensation examination was normal in 

both upper and lower extremities to light touch. Dr. Chauhan diagnosed cervical strain, cervical 

radiculopathy, and cervical spinal stenosis. He opined that there was a causative connection 

between appellant’s work injury of March 8, 2013 and her cervical spine conditions and that 

appellant had an occupational disease in addition to the March 8, 2013 work injury. 

Dr. Chauhan indicated that appellant remained temporarily totally disabled ongoing from 

March 8, 2013 through April 10, 2016. 

On October 15, 2015 OWCP expanded her claim to include cervical spinal stenosis, 

cervical radiculopathy, and neck sprain. 

In a Form CA-116, appellant called OWCP and inquired whether she would receive 

wage-loss compensation for the period April 21, 2013 to May 17, 2014 since her claim was 

expanded. OWCP advised her that she would need to exercise her appeal rights based on the 

June 1, 2015 hearing representative decision. It clarified that even if her treating physician 

submitted additional medical reports, OWCP would not reconsider her compensation denial 

unless appellant exercised her appeal rights. 
5

On November 5, 2015 appellant underwent a physical therapy consultation with Mario 

Rodriguez, a physical therapist, who noted that appellant demonstrated decreased cervical range 

of motion, multiple areas of muscular tenderness throughout her cervical region, impaired 

activity tolerance, and poor posture. Mr. Rodriguez indicated that appellant’s prognosis was fair 

based on chronicity of condition. Appellant continued to receive physical therapy treatments and 

submit progress notes. 

In a December 9, 2015 narrative report, Dr. Chauhan indicated that appellant’s claim 

needed to be revisited now that her claim was expanded to include cervical radiculopathy and 

cervical spinal stenosis. He noted that because of appellant’s conditions she was totally disabled 

from February 21, 2013 through May 17, 2014 and currently ongoing. Dr. Chauhan opined that 

appellant’s “pain and residual disability are all due to this accepted diagnosis of cervical 

radiculopathy and cervical spinal stenosis.” He requested that, based on this explanation, OWCP 

reconsider its most recent decision regarding disability compensation in light of appellant’s 

newly accepted conditions. 

On June 3, 2016 appellant requested reconsideration of the June 1, 2015 OWCP decision. 

She noted that Dr. Chauhan’s December 23, 2015 medical report established that her current 

cervical symptoms were causally related to her employment. Appellant also noted that OWCP 

expanded her claim to include cervical stenosis and cervical radiculopathy in an October 15, 

2015 decision. She contended that she was entitled to disability compensation for the period 

April 21, 2013 to May 17, 2014 because her inability to work was causally related to her 

accepted conditions of spinal stenosis, cervical region, and radiculopathy. 

By decision dated June 16, 2016, OWCP denied appellant’s June 3, 2016 reconsideration 

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

determined that because appellant’s reconsideration request received on June 3, 2016, more than 

one year after the June 1, 2015 merit decision, it was untimely filed. OWCP further found that 

appellant’s reconsideration request and evidence submitted failed to demonstrate clear evidence 

of error. 

LEGAL PRECEDENT 

OWCP’s regulations provide that to be entitled to a merit review of an OWCP decision, 

an application for reconsideration must be received within one year of the date of the OWCP 

decision for which review is sought.4

 OWCP, however, may not deny an application for review 

solely because the application was untimely filed. It may consider an untimely application for 

reconsideration if the evidence or argument contained in the reconsideration request 

demonstrates clear evidence of error on the part of OWCP.5

 In this regard, OWCP will conduct 

a limited review of how the newly submitted evidence bears on the prior evidence of record.6 

 4

 20 C.F.R. § 10.607(a). The Board has found that the imposition of the one-year limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. 5 U.S.C. § 8128(a); Leon D. 

Faidley, Jr., 41 ECAB 104, 111 (1989). 

5 See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

6 See id. at § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992). 
6

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

decision is insufficient to demonstrate clear evidence of error.7 

To demonstrate 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.8

 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.9 The evidence 

submitted must not only be of sufficient probative value to create a conflicting medical opinion 

or demonstrate 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.10 The Board has held that even a report such as a detailed, 

well-rationalized medical report which, if submitted before the denial was issued, would have 

created a conflict in medical evidence requiring further development is not sufficient to 

demonstrate clear evidence of error.11 OWCP’s procedures further provide that the term clear 

evidence of error is intended to represent a difficult standard.12 If clear evidence of error has not 

been presented, OWCP should deny the application by letter decision, which includes a brief 

evaluation of the evidence submitted and a finding made that clear evidence of error has not been 

shown.13

The Board makes an independent determination of whether a claimant has submitted 

clear evidence of error on the part of OWCP such that it abused its discretion in denying merit 

review in the face of such evidence.14 

ANALYSIS 

OWCP’s last merit decision was dated June 1, 2015, which denied appellant’s disability 

compensation claim for the period April 21, 2013 to May 17, 2014. On June 3, 2016 it received 

appellant’s request for reconsideration. By decision dated June 16, 2016, OWCP denied 

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

clear evidence of error. 

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

request for reconsideration. By decision dated June 1, 2015, an OWCP hearing representative 

affirmed OWCP’s September 3, 2014 decision, which denied appellant’s claim for wage-loss 

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

8

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

9 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

11 A.R., Docket No. 15-1598 (issued December 7, 2015). 

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

13 Id. 

14 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993). 
7

compensation for the period April 21, 2013 to May 17, 2014. OWCP received appellant’s letter, 

which requested reconsideration on June 3, 2016, which was outside of the one-year time limit.15 

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

OWCP in denying her claim for compensation.16 

The Board finds that the evidence submitted by appellant in support of her 

reconsideration request does not raise a substantial question as to the correctness of OWCP’s 

June 1, 2015 decision and is insufficient to demonstrate clear evidence of error. 

Along with her reconsideration request, appellant resubmitted Dr. Chauhan’s May 4, 

2015 and Dr. Amireh’s February 18, 2015 medical reports. She also provided additional medical 

reports from Dr. Chauhan dated June 18, 2015 to May 3, 2016, which were substantially similar 

to his previous reports. As the medical reports were duplicative of reports previously of record, 

appellant has not explained how the resubmission of these reports raises a substantial question 

concerning the correctness of OWCP’s decision.17

Appellant also provided a December 9, 2015 report by Dr. Chauhan who related that 

OWCP should reconsider its most recent decision now that appellant’s claim was expanded to 

include cervical radiculopathy and cervical spinal stenosis. Dr. Chauhan opined that appellant’s 

“pain and residual disability are all due to this accepted diagnosis of cervical radiculopathy and 

cervical spinal stenosis.” The Board finds that this report is insufficient to demonstrate clear 

evidence of error as it does not show that OWCP’s denial of her claim was erroneous, nor does it 

raise a substantial question as to the correctness of OWCP’s determination that appellant’s 

inability to work from the period April 21, 2013 to May 17, 2014 was causally related to her 

accepted cervical conditions.18 As previously noted, even a report such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created 

a conflict in medical evidence requiring further development is not sufficient to demonstrate 

clear evidence of error.19 Consequently, this report is insufficient to demonstrate clear error by 

OWCP with respect to the denial of appellant’s disability compensation claim. 

The additional medical reports submitted by appellant are likewise insufficient to 

demonstrate clear evidence of error on the part of OWCP as none of the medical reports were 

sufficient to shift the weight of the evidence in appellant’s favor.20

 15 See Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.1602.4 (October 2011). For decisions 

issued on or after August 29, 2011, the one-year period begins on the date of the original decision, and the 

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

review is sought. The Board notes that while appellant submitted various medical reports after the June 1, 2015 

decision, appellant did not request reconsideration in writing until June 3, 2016. 

16 Supra note 4; Debra McDavid, 57 ECAB 149 (2005). 

17 G.B., Docket No. 16-0319 (issued April 6, 2016). 

18 See P.O., Docket No. 13-92 (issued April 4, 2013). 

19 Supra note 11. 

20 Supra note 10. 
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The Board has found that the term “clear evidence of error” is intended to represent a 

difficult standard.21 It is not enough merely to show that the evidence could be construed so as 

to produce a contrary conclusion.22

On appeal appellant argues the merits of her claim and alleges that the new medical 

reports by Dr. Chauhan establish that her inability to work for the period April 21, 2013 to 

May 17, 2014 was causally related to her cervical conditions. As previously noted, the Board 

does not have jurisdiction to review the merits of the claim. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the June 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,

Chapter 2.1602.5(a) (October 2011). 

22 Supra note 9.