United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, San Juan, PR, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0521 

Issued: June 13, 2016 

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 8, 2015 appellant, through counsel, filed a timely appeal from a 

September 17, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 As more than 180 days elapsed since the last merit decision dated March 22, 2013, to 

the filing of this appeal, the Board lacks jurisdiction to review the merits of this case pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.3

 1

 OWCP has also issued an August 29, 2014 decision finalizing an overpayment of compensation. Counsel has 

not appealed this decision. 

2

 5 U.S.C. § 8101 et seq. 

3

 Appellant filed a timely request for oral argument. By order dated October 8, 2015, the Board exercised its 

discretion and denied her request on the grounds that her arguments could be adequately addressed in a decision 

based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0521 (issued 

October 8, 2015). 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s March 23, 2014 reconsideration 

request under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On December 16, 1988 appellant, then a 51-year-old medical clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome and thoracic 

outlet syndrome as a result of repetitive writing, stapling, and use of an address graph machine 

while in the performance of duty. OWCP accepted her claim for bilateral carpal tunnel 

syndrome, lumbar degenerative displacement, and aggravation of degeneration of lumbar 

intervertebral disc without myelopathy. Appellant stopped work on November 19, 1986 and 

returned to work on October 7, 1987. Thereafter, she stopped work again and received wageloss compensation. Appellant was placed on the periodic compensation rolls beginning 

December 1, 1990. 

In a letter dated March 30, 2012, appellant, through counsel, requested that her claim be 

expanded to include the conditions of depression, anxiety, and pain disorder. She submitted a 

January 24, 2012 report from Dr. April K. Getz, a Board-certified family practitioner, who noted 

that on January 6, 1985 while at work, appellant stepped on a stool as she was reaching for 

supplies and became dizzy and fell. Appellant diagnosed employment-related bilateral carpal 

tunnel syndrome, degeneration of the lumbar spine, and displacement of the intervertebral disc 

without myelopathy. Dr. Getz noted that appellant also had concomitant diagnoses of 

hypothyroidism, hypertension, asthma, diverticulosis, irritable bowel syndrome, obstructive 

sleep apnea, osteoarthritis, hyperlipidemia, and depression/anxiety. She opined that as a result of 

appellant’s employment-related injuries her chronic conditions were exacerbated. Dr. Getz 

indicated that appellant’s pain caused elevation in her blood pressure and worsened her 

depression and anxiety. She noted that her examination revealed increased anxiety and 

depressive symptoms. 

In a letter dated April 19, 2012, OWCP noted receipt of Dr. Getz’ January 24, 2012 

report and requested that she provide a full medical report to support her opinion that appellant 

had an emotional condition related to chronic pain from her accepted injuries. 

In a decision dated June 6, 2012, OWCP denied appellant’s request to expand her claim 

to include hypothyroidism, hypertension, asthma, diverticulosis, irritable bowel syndrome, 

obstructive sleep apnea, osteoarthritis, hyperlipidemia, and depression and anxiety. 

Appellant requested an oral hearing which was held on October 3, 2012. She submitted a 

report from Dr. Getz dated September 8, 2012 who noted a history of injury on January 6, 1985 

and diagnosed employment-related conditions of bilateral carpal tunnel syndrome, degeneration 

of the lumbar spine, and displacement of intervertebral discs without myelopathy. Dr. Getz 

opined that these permanent injuries caused significant distress and new diagnoses of depressive 

disorder and pain disorder. She noted that appellant was totally disabled for all employment 

secondary to her employment-related injury. 
3

In the course of developing the claim, OWCP referred appellant to Dr. John Custer, a 

Board-certified psychiatrist. In a February 19, 2013 report, Dr. Custer noted that he reviewed 

appellant’s history and performed an examination. Under Axis 1, he diagnosed pain disorder 

associated with psychological factors and a medical condition. Dr. Custer opined that 

appellant’s psychiatric condition was relatively minor and noted that he could not establish any 

causality with the original work injury. He advised that her emotional condition was not 

disabling and also indicated that she had a depressive syndrome that predated her work injuries.4

In a decision dated March 22, 2013, OWCP denied appellant’s claim for an emotional 

condition finding the medical evidence of record did not establish that the alleged emotional 

conditions were related or consequential to the established work factors. 

On March 23, 2014 OWCP received appellant’s March 22, 2014 reconsideration request. 

Appellant asserted that OWCP unfairly denied her claim and she was requesting reconsideration 

based on new evidence and argument. She further indicated that OWCP’s decision should be 

rescinded and wage-loss compensation and medical benefits be paid accordingly. Appellant 

submitted medication management notes dated October 24 and November 14, 2012 prepared by 

an individual whose signature is illegible who diagnosed post-traumatic stress disorder, chronic 

pain, and disability claim. She submitted a September 10, 2013 report from Dr. Getz, who noted 

a history of injury on January 6, 1985 and diagnosed bilateral carpal tunnel syndrome, 

degeneration of the lumbar spine, and displacement of intervertebral discs without myelopathy. 

Appellant opined that these injuries caused appellant emotional stress and appellant was totally 

disabled secondary to her employment injury. In a progress note dated September 10, 2013, 

Dr. Getz treated appellant for back pain radiating into the right lower extremity, carpal tunnel 

pain, and occasional anxiety. She noted that appellant reported being treated by a Dr. Krebs last 

year who diagnosed possible post-traumatic stress disorder related to her chronic dealings with 

her disability claim, lumbar and cervical herniated disc, osteoarthritis, degeneration of 

lumbar/lumbosacral disc without myelopathy, and carpal tunnel syndrome.5

 Similarly, in a 

March 11, 2014 report, Dr. Getz noted a history of injury and diagnoses and opined that 

appellant’s conditions were employment related, totally disabling, and caused appellant 

emotional stress. Appellant submitted an appointment reminder from Dr. Michael W. Peelle, a 

Board-certified orthopedist, for March 5, 2014. 

By decision dated September 17, 2014, OWCP denied appellant’s March 23, 2014 

request for reconsideration finding that her request did not meet any of the requirements for 

further merit review pursuant to 5 U.S.C. § 8128(a). It determined that her letter did not raise a 

substantive legal question nor did it include new and relevant evidence. 

 4

 OWCP also referred appellant for an orthopedic examination which indicated that she continued having 

orthopedic residuals of her accepted conditions. 

5

 No report from a Dr. Krebs accompanies Dr. Getz’ report. 
4

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an 

award for or against payment of compensation at any time on his own motion or on application.6

 

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

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that 

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

OWCP’s decision for which review is sought.7 

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. 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. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board, but does not 

include prerecoupment hearing decisions.8

 Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the Integrated Federal Employees 

Compensation System (iFECS)). If the request for reconsideration has a document received date 

greater than one year, the request must be considered untimely.9 

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of it in its most recent merit decision. The application must 

establish, on its face, that such decision was erroneous.10 

The term clear evidence of error is intended to represent a difficult standard. 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.11 

ANALYSIS 

The most recent decision reviewing the merits of appellant’s case was OWCP’s 

March 22, 2013 decision. As the appeal rights attached to that decision explained, appellant had 

one calendar year from the date of that decision or until March 22, 2014, to ensure receipt by 

OWCP of any reconsideration request. 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.607(a). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011). 

9 Id.

10 20 C.F.R. § 10.607. 

11 Supra note 8 at Chapter 1.1602.5.a (October 2011). 
5

Appellant’s reconsideration request dated March 22, 2014 was received by OWCP and 

entered into iFECS on March 23, 2014. As this was more than one year after March 22, 2013, 

appellant’s reconsideration request was untimely. The proper standard of review for an untimely 

reconsideration request is the clear evidence of error standard. 

In denying appellant’s reconsideration request, OWCP did not determine whether 

appellant’s reconsideration request was untimely filed and did not review the request under the 

clear evidence of error standard. Rather, it applied the standard of review for timely requests for 

reconsideration. As OWCP applied the wrong standard of review to the untimely request for 

reconsideration, the Board will set aside OWCP’s September 17, 2014 decision and remand the 

case for proper review under the clear evidence of error standard as required by regulations.12 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s March 23, 2014 

reconsideration request under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the September 17, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further review under 

the clear evidence of error standard. 

Issued: June 13, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 See 20 C.F.R. § 10.607(b). See L.D., Docket No. 15-0865 (issued October 6, 2015).