United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.C., Appellant

and

DEPARTMENT OF THE ARMY, 

INSTALLATION MANAGEMENT 

COMMAND, Fort Stewart, GA, Employer

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Docket No. 17-1701

Issued: January 5, 2018

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

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 March 9, 20172appellant, through counsel, filed a timely appeal from a December 28, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).3 As more 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from December 28, 2016, the date of OWCP’s last decision, was 

June 26, 2017. Since using August 2, 2017, the date the appeal was received by the Clerk of the Appellate Boards, 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is March 9, 2017 rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

3 The postal envelope included in the docket file establishes that an incorrect zip code was used when mailing the 

AB-1 form to the Clerk of the Appellate Boards, likely resulting in the delay of receipt of the form. 
2

than 180 days elapsed from the last merit decision, dated March 5, 2015, to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act4(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.

ISSUE

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

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

FACTUAL HISTORY

On December 28, 1983 appellant, then a 29-year-old warehouse worker, filed a traumatic 

injury claim (Form CA-1) alleging that on December 19, 1983 he was assisting another 

employee lift a piece of steel weighing approximately 150 to 200 pounds and injured his back. 

OWCP accepted his claim for lumbosacral sprain and displacement of the lumbar intervertebral 

spine at L5-S1. Appellant stopped work on December 20, 1983 and returned to full-time duty on 

May 6, 1985. 

Appellant was treated by Dr. Julian D. Kelly, Jr., a Board-certified orthopedist, from 

February 20 to May 2, 1984, for his low back injury sustained on December 19, 1983. Dr. Kelly

diagnosed low back pain due to low back strain superimposed on bilateral L5 spondylolysis with 

very mild spondylolisthesis. On July 18, 1984 appellant underwent a lumbar myelogram which

was negative. A computerized tomography (CT) scan of the lumbar spine dated July 19, 1984 

was a limited scan due to marked obesity of the patient. However, central bulging discs were

noted at L4-5 and L5-S1 with no definite disc herniation.

Appellant came under the treatment of Dr. Edward F. Downing, a Board-certified 

neurologist, from July 16, 1984 to May 1, 1985, for a herniated lumbar disc. Dr. Downing noted 

that appellant underwent an L5-S1 laminectomy in July 1984 and was progressing satisfactorily. 

On December 26, 1984 he noted that appellant’s leg pain resolved and he anticipated that 

appellant would return to work in a month or two. On May 1, 1985 Dr. Downing returned 

appellant to light-duty work and discharged him from his care.

In a telephone log dated May 17, 1985, OWCP indicated that appellant returned to fullduty work on May 6, 1985. Appellant used two days of sick leave and resigned on May 9, 1985.

On June 26, 1985 Dr. Downing indicated that appellant returned to work and was 

assigned to operate a forklift, but he was unable to perform the job. He opined that appellant was 

totally disabled from work. Appellant continued to be treated by Dr. Downing, and on 

January 14, 1987 he determined that appellant was totally disabled from work due to his lumbar 

disc problems and his marked obesity. OWCP paid wage-loss compensation.

Appellant had a functional capacity evaluation (FCE) on July 21, 1994 which revealed 

that he was totally disabled from performing any type of work. He continued to be treated by

Dr. Downing. On March 15, 1999 Dr. Downing treated appellant for L4-5 and L5-S1 

 

4 5 U.S.C. § 8101 et seq.
3

radiculopathy. He recommended diagnostic testing and another FCE. In a May 5, 1999 FCE, 

appellant was found able to function at a sedentary level. Thereafter, the record was dormant with 

regard to medical development until OWCP referred appellant for a second opinion in 2005. 

Thereafter, OWCP referred appellant to several second opinion physicians.

In a September 23, 2013 report, Dr. Douglas Hein, a Board-certified orthopedist and an 

OWCP referral physician, indicated that he reviewed the medical record and examined appellant. 

He noted that appellant was morbidly obese, had severe lumbar motion deficits, and reported 

hypoesthesias in the L5-S1 distribution bilaterally. X-rays of the lumbar spine revealed grade 1

spondylolisthesis, spondylolysis at L5-S1, and decreased disc space. Dr. Hein advised that 

appellant had a traumatic injury to his back with preexisting spondylolysis, spondylolisthesis,

and subsequent disc herniation at L5-S1. He opined that appellant’s morbid obesity was a major 

component in his ongoing disability with spinal instability and was documented in literature as 

being associated with sciatica. Dr. Hein noted that there were no current findings that supported

disability medically connected to his work injury. He opined that appellant was properly treated 

and his conditions would have resolved had it not been for his preexisting conditions and morbid 

obesity. Dr. Hein advised that spondylolysis and spondylolisthesis were progressive lesions 

which were exacerbated by morbid obesity. He noted that appellant had no ongoing impairment 

from his injury and no work-related disability. Dr. Hein opined that appellant was not capable of 

sustained physical activities secondary to his preexisting conditions and exacerbation from his 

obesity. He noted that appellant had no residuals secondary to his accepted injury.

In a work capacity evaluation (OWCP-5c), Dr. Hein advised that appellant sustained a 

herniated disc at L5-S1 which was surgically treated. He noted that preexisting conditions and 

obesity precluded significant activity. Dr. Hein noted several permanent restrictions and 

indicated that they were based on obesity and spondylolisthesis.

On February 25, 2014 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits, finding that the second opinion physician, Dr. Hein’s September 23, 2013 

report, established that there were no continuing residuals of his work-related conditions.

By decision dated April 4, 2014, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective April 6, 2014. It based its decision on the September 23, 2013 

report of Dr. Hein. 

The employing establishment’s Office of Operational Protection conducted a preliminary 

FECA fraud investigation on October 6, 2014, noting appellant was suspected of making false 

and fraudulent representations on CA-1032 forms to obtain disability benefits from OWCP. The 

investigation determined that appellant falsified his annually completed CA-1032 forms by 

failing to report his involvement in a business enterprise, Believers Walk of Faith Christian 

Assembly.

By decision dated January 27, 2015, OWCP determined that appellant forfeited his 

compensation for the periods January 1, 1994 to March 30, 1995 and March 13, 1999 to 

January 23, 2014 under 5 U.S.C. § 8106(b) of FECA. It found that he knowingly failed to report 

income he received as a minister/president of various religious organizations on the Form CA1032.
4

On January 28, 2015 OWCP made a preliminary determination that a $283,001.73 

overpayment of compensation occurred because appellant forfeited his compensation for the 

periods January 1, 1994 to March 30, 1995 and March 13, 1999 to January 23, 2014. It noted 

that appellant was at fault in the creation of the overpayment because he made an incorrect 

statement as to material facts which he knew or should have known to be incorrect and he failed 

to provide information he knew or should have known to be material.

By decision dated March 4, 2015, OWCP finalized its preliminary determination with 

regard to the of $283,001.73 overpayment of compensation.

On December 16, 2016 appellant, through counsel, requested reconsideration of OWCP’s

April 4, 2014 decision. Counsel asserted that appellant’s claim was accepted for lumbosacral 

ligament sprain and displacement of a lumbar intervertebral disc. He indicated that in 

terminating all benefits, OWCP relied upon the second opinion report of Dr. Hein dated

September 25, 2013. On the OWCP-5c form, completed as part of the second opinion 

examination, Dr. Hein listed permanent restrictions and found that appellant was not capable of 

performing his past work because preexisting conditions and obesity precluded significant 

activity. Counsel asserted that Dr. Hein provided no rational basis with objective findings to 

explain why the restrictions for the accepted herniated disc resolved. He further asserted that

Dr. Hein attributed most of appellant’s problems to his obesity, but he related no objective 

findings to support his conclusion. Counsel contended that Dr. Hein conceded that appellant’s 

accepted conditions had not completely resolved, but his obesity was the major contributing 

factor to ongoing disability. He argued that OWCP did not meet its burden of proof to terminate 

compensation benefits by relying upon the second opinion of Dr. Hein as his report was

speculative and he conceded that the accepted injury still contributed to ongoing disability. 

Counsel asserted that the previous decision was in error.

By decision dated December 28, 2016, OWCP denied appellant’s request for 

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

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.5 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.6 The Board has found that imposition of this oneyear filing limitation does not constitute an abuse of discretion.7

OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake 

 

5 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

6 20 C.F.R. § 10.607(a). 

7 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
5

a limited review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP must reopen the case for merit review.8

To demonstrate clear evidence of error, a claimant must submit evidence that is relevant 

to the issue that was decided by OWCP,9is positive, precise, and explicit, and manifests on its 

face that OWCP committed an error.10 The evidence must not only be of sufficient probative 

value to create a conflict in medical opinion or establish a clear procedural error, but must also 

shift the weight of the evidence in favor of the claimant and raise a substantial question as to the 

correctness of OWCP’s decision for which review is sought. Evidence that does not raise a 

substantial question is insufficient to demonstrate clear evidence of error. It is not enough 

merely to show that the evidence could be construed so as to produce a contrary conclusion. A

determination of whether the claimant has demonstrated clear evidence of error entails a limited 

review of how the evidence submitted with the reconsideration request bears on the evidence 

previously of record.11

ANALYSIS

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

request for reconsideration. As noted, an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.12 As appellant’s request 

for reconsideration was not received by OWCP until December 19, 2016, more than one year 

after issuance of the April 4, 2014 decision, the last merit decision by OWCP on the termination 

issue, it was untimely filed. Consequently, he must demonstrate clear evidence of error by 

OWCP denying his claim for compensation. 

The Board finds that appellant failed to demonstrate clear evidence of error on the part of 

OWCP. In a statement dated December 16, 2016 and received on December 19, 2016, counsel

disagreed with OWCP’s decision terminating wage-loss compensation and medical benefits. 

Counsel asserted that OWCP improperly relied upon Dr. Hein’s opinion to terminate appellant’s 

benefits. He asserted that Dr. Hein provided no rational basis with objective findings for why the 

restrictions for the accepted herniated disc resolved. Counsel argued that Dr. Hein conceded that 

the accepted conditions have not completely resolved. Based on this, counsel contended that 

OWCP did not meet its burden of proof to terminate benefits by relying upon Dr. Hein’s report. 

The Board notes that, while appellant addressed his disagreement with OWCP’s decision to 

terminate all his benefits, his disagreement does not demonstrate clear evidence of error as it 

does not raise a substantial question as to the correctness of OWCP’s most recent merit decision 

 

8 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of 

error” is intended to represent a difficult standard).

9 Dean D. Beets, 43 ECAB 1153 (1992).

10 Leona N. Travis, 43 ECAB 227 (1991).

11 J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

12 20 C.F.R. § 10.607(a).
6

which terminated all of appellant’s benefits for the accepted conditions. To demonstrate clear 

evidence of error, it is insufficient to merely show that the evidence could be construed so as to 

produce a contrary conclusion.

The Board notes that the underlying issue is medical in nature and that on reconsideration 

appellant did not submit additional medical evidence. The Board notes that clear evidence of 

error 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.13 

On appeal, counsel reiterates that OWCP improperly relied on Dr. Hein’s report in 

terminating benefits. As explained, these assertions do not rise to the level of clear evidence of 

error. Furthermore, as noted, the Board does not have jurisdiction over 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 December 28, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 5, 2018

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

 

13 D.G., 59 ECAB 455 (2008).