United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Midland, MI, Employer

__________________________________________

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Docket No. 17-0385

Issued: June 26, 2018

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 November 14, 2016 appellant filed a timely appeal from an October 19, 2016 nonmerit 

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

elapsed from the last merit decision, dated February 26, 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 case.

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 March 14, 2014 appellant, then a 52-year-old city mail carrier, filed a traumatic injury 

claim alleging that, on March 13, 2013, she was delivering mail when she stepped on black ice 

 

1 5 U.S.C. § 8101 et seq.
2

and fell sustaining injuries from her head down the right side of her body to her lower leg while in 

the performance of duty. On the reverse side of the claim form, appellant’s supervisor checked a 

box marked “yes,” indicating that his knowledge of the facts regarding the injury agreed with the 

statements of the employee.

Along with the claim, OWCP received treatment notes dated March 18 and 25, 2014 from 

a physician assistant who placed her off work until March 25, 2014. It received additional notes

and a duty status report (Form CA-17) from the physician assistant dated April 8, 2014.

OWCP also received treatment notes from Dr. John Szajenko, Board-certified in physical 

medicine and rehabilitation. They included an April 9, 2014 note and duty status report (Form 

CA-17) in which he diagnosed cervicalgia, neck and low back pain, and paresthesia/numbness.

On May 12, 2014 appellant filed a claim for compensation (Form CA-7) for leave without 

pay taken from May 5 to 10, 2014.

2

By letter dated May 20, 2014, OWCP noted that appellant’s claim initially appeared to be 

a minor injury that resulted in minimal or no lost time from work and that her claim was 

administratively handled to allow a limited amount of medical payments. However, appellant’s

claim was now being reopened because the medical bills exceeded $1,500.00. OWCP informed 

appellant of the type of evidence needed to support her claim and requested that she submit such 

evidence within 30 days. It also explained that pain was a symptom and not a valid diagnosis.

In a June 4, 2014 report, Dr. Szajenko recommended that appellant return to work with 

restrictions.

OWCP also received physical therapy reports and an evaluation dated March 14, 18, 20, 

21, 24, 25, 28, and 31, April 2, 7, 8, 10, 14, 16, and 18, 2014.

By decision dated June 23, 2014, OWCP denied appellant’s claim, finding that she had not 

established the medical component of fact of injury. It found that the evidence did not demonstrate 

a claimed medical condition or history of her condition causally related to established work-related 

events.3

Appellant disagreed with the decision and requested a review of the written record by an 

OWCP hearing representative.

OWCP received reports from Dr. Szajenko dated April 9, June 3, 11, and 12, and July 3

and 12, 2014, as well as copies of his prior reports. Dr. Szajenko continued to describe pain such 

as lumbago and cervicalgia. He diagnosed low back pain, cervicalgia, paresthesia, numbness, and 

radiculitis. 

 

2

In a memorandum of telephone call dated May 14, 2014, appellant advised OWCP that she had been off work 

since the injury date and was still in pain.

3 OWCP found that no actual medical diagnosis was provided by a physician in conjunction with the injury.
3

A March 14, 2014 x-ray of the right hip read by Dr. Stephen R. Pavlock, a diagnostic 

radiologist, revealed no evidence of acute fracture/dislocation. A March 14, 2014 x-ray of the 

right shoulder read by Dr. Pavlock revealed acromioclavicular (AC) joint degenerative changes, 

without evidence of acute fracture/dislocation. A May 14, 2014 cervical spine x-ray read by

Dr. Pavlock, revealed anterior fusion changes at C5 through C7 with old, incompletely healed C6 

spinous process fracture and moderate degenerative changes at C4-5 with no evidence of acute 

fracture or alignment. 

A May 27, 2014 magnetic resonance imaging (MRI) scan read by Dr. Michael P. Bartlett, 

a diagnostic radiologist, revealed findings which included mild degenerative changes at L5-S1. A 

June 27, 2014 MRI scan of the cervical spine read by Dr. Bartlett revealed slight degenerative 

changes of the cervical spine, no focal disc herniation, or spinal canal stenosis with otherwise 

natural foraminal narrowing, which was more pronounced to the right at the C3-4 and C4-5 levels.

A June 27, 2015 MRI scan of the lumbar spine read by Dr. Bartlett revealed findings to include

stable relatively mild degenerative changes at the L5-S1 disc level.

OWCP received physical therapy notes from March 12 to September 2, 2014.

In a July 10, 2014 statement, appellant indicated that, on March 13, 2014, and was off work 

since March 15, 2014. She noted that on July 7, 2014 she was performing limited duty for four 

hours a day, and using sick leave for two hours until she used her sick and annual leave. 

In a July 16, 2014 report, Dr. Naheed Rizvi, a Board-certified internist, explained that 

appellant was initially seen by a physician assistant who diagnosed cervicalgia, low back pain, 

paresthesia, and concussion. He noted that she related that she fell on ice and aggravated her right 

hip, right shoulder, back, neck, and head.

In a separate report also dated July 14, 2014, Dr. Szajenko advised that he first saw 

appellant on April 8, 2014 for complaints of pain due to a work-related injury that occurred on 

March 12, 2014. He opined that he believed the fall caused symptoms of radiculopathy and a 

symptomatic exacerbation of underlying degenerative changes. Dr. Szajenko continued to submit 

reports. Dr. Charlotte Yang, a Board-certified family practitioner, also treated appellant for low 

back pain and submitted reports.

In an August 12, 2014 report, Dr. Kamal Sadjadpour, a Board-certified neurologist, noted 

that appellant’s history of injury included a fall on ice in March when she fell backwards and hit 

her head and right shoulder. He examined appellant and found: persistent neck pain and headache;

carpal tunnel syndrome; persistent low back pain; and cervical spondylosis with cervical fusion.

Dr. Sadjadpour also treated her on September 30, 2014 and recommended a gradual transition 

from part-time to full-time activity.

In an August 8, 2014 statement, Roland Crane, noted that he witnessed the incident, 

including appellant’s fall, while appellant was attempting to deliver mail at his house.

In a letter dated September 29, 2014, counsel for appellant requested that appellant’s 

request for a review of the written record be changed to a request for a telephonic hearing.
4

September 22, 2014 electromyography (EMG) scan studies read by Dr. Surendra Kaul, a 

Board-certified neurologist, revealed evidence of bilateral carpal tunnel syndrome, mild ulnar 

neuropathy, and lumbar radiculopathy.

By decision dated February 27, 2015, OWCP’s hearing representative affirmed the 

June 23, 2014 decision. She explained that appellant had not established fact of injury as none of 

the medical evidence submitted established a clear diagnosis as a result of the claimed event. The 

hearing representative explained that multiple symptoms were listed. Furthermore, the symptoms 

existed prior to the event, and it was unclear which specific medical injury occurred as a result of 

the event claimed in the instant claim. The hearing representative also explained that, if she should 

establish fact of injury, she would also need to provide reasoned medical evidence from a physician

to explain how the claimed event caused or contributed to a diagnosed condition. 

On March 11, 2016 appellant requested reconsideration and submitted additional evidence.

Appellant argued that Dr. Szajenko provided a clear diagnosis and opinion advising that he 

believed that the fall caused symptoms of radiculopathy and a symptomatic exacerbation of 

underlying degenerative changes. She also argued that another valid diagnosis was paresthesia 

and OWCP did not develop her claim. Appellant argued that her claim should not have been 

denied on the basis that fact of injury was not established. She also provided a new report from

Dr. Szajenko and indicated that his report established causal relationship.

In a report dated February 19, 2018, Dr. Szajenko noted that he had been involved in the 

treatment of appellant since her initial visit in his office on April 9, 2014. He explained that he 

clearly understood that appellant had a prior history of a cervical spine injury and a history of 

underlying cervical fusion back in 2000. Dr. Szajenko explained that, while she was off work, she 

eventually returned. He related that appellant had some chronic symptomatology, but it was not 

limiting her from a functional stand point. Dr. Szajenko noted that on March 13, 2014 she slipped 

and fell which resulted in new pain symptoms. He related that the MRI scan from June 2014 

revealed postsurgical changes as well as degenerative changes, but no acute pathology. 

Dr. Szajenko advised that she had fortunately demonstrated considerable improvement was now 

working with restrictions. He diagnosed cervical spondylosis with temporary aggravation caused 

by a fall that occurred while working.

OWCP also received additional treatment notes dating from October 22, 2014 to July 16, 

2015 from Dr. Szajenko.

OWCP also received copies of reports previously of record. 

By decision dated October 19, 2016, OWCP denied appellant’s request for reconsideration, 

finding that 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.4 This discretionary authority, however, is subject to certain restrictions. For 

 

4 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).
5

instance, a request for reconsideration must be received within one year of the date of OWCP’s

decision for which review is sought.5 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s Integrated Federal Workers’ Compensation System).6 Imposition 

of this one-year 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, it must nevertheless undertake a limited 

review to determine whether the request demonstrates clear evidence of error. If an application 

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

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue that 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 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. 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.9 To demonstrate clear evidence 

of error, the evidence submitted must not only be of sufficient probative value to create a conflict 

in the medical opinion or establish a clear procedural error, but must be of sufficient probative 

value to prima facie shift the weight of the evidence in favor of appellant and raise a substantial 

question as to the correctness of OWCP’s decision. The Board makes an independent 

determination of whether a claimant has submitted clear evidence of error on the part of OWCP 

such that OWCP abused its discretion in denying merit review in the face of such evidence.10

ANALYSIS

The Board finds that, in its October 19, 2016 decision, OWCP properly determined that 

appellant’s reconsideration request was untimely filed. It rendered its last merit decision regarding 

whether appellant met her burden of proof to establish a traumatic injury on February 27, 2015. 

As appellant’s reconsideration request was received on March 11, 2016, more than one year after 

 

5 20 C.F.R. § 10.607(a). 

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

7 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8 M.L., Docket No. 09-0956 (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) (February 2016) (the term “clear evidence of error”

is intended to represent a difficult standard).

9 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

10 Id.
6

the February 27, 2015 merit decision, it was, therefore, untimely filed. Therefore, appellant must 

demonstrate clear evidence of error by OWCP in its February 27, 2015 decision.11

The Board further finds that appellant’s untimely reconsideration request failed to 

demonstrate clear evidence of error. Appellant argued on reconsideration that Dr. Szajenko 

provided clear diagnoses of cervicalgia, paresthesia, and concussion and opined that the fall caused 

symptoms of radiculopathy and a symptomatic exacerbation of underlying degenerative changes. 

She also contended that OWCP did not properly develop her claim. Appellant also provided a 

new report from Dr. Szajenko dated February 19, 2016 to support that she established causal 

relationship. Appellant noted that her claim should not have been denied on the basis that a 

medical condition had not been diagnosed in connection with the accepted incident. While the 

Board notes that appellant is correct in noting that Dr. Szajenko’s medical reports contained 

diagnoses, the hearing representative also denied the claim as the evidence of record did not 

contain a reasoned opinion on whether and how the accepted employment incident caused or 

contributed to the medical diagnoses. While Dr. Szajenko reported findings and an opinion on 

causal relationship, the Board notes that OWCP procedures provide that the term clear evidence 

of error is intended to represent a difficult standard. Appellant 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 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.12 

Thus, the Board finds that these arguments are not of sufficient probative value to prima 

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

the correctness of OWCP’s decision. These arguments, therefore, do not demonstrate clear 

evidence of error.

OWCP also received copies of previously submitted medical reports. However, this

evidence does not manifest on its face that OWCP committed an error.

Consequently, appellant has not met her burden to demonstrate clear evidence of error on 

the part of OWCP such that it erred in denying merit review. The Board, therefore, finds that in 

accordance with its internal guidelines and with Board precedent that OWCP properly performed 

a limited review of appellant’s argument to ascertain whether it demonstrated clear evidence of 

error, correctly determined that it did not, and denied appellant’s untimely request for a merit 

reconsideration.13

On appeal appellant argues that her medical diagnoses were of record when the claim was 

denied on the medical aspect of fact of injury. However, these arguments are not of sufficient 

probative value to prima facie shift the weight of the evidence in favor of appellant and raise a 

substantial question as to the correctness of OWCP’s decision. The Board notes that the medical 

 

11 20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

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

13 Nancy Marcano, 50 ECAB 110 (1998). 
7

evidence included diagnoses of sciatica as well as evidence of preexisting bilateral carpal tunnel 

syndrome, mild ulnar neuropathy and lumbar radiculopathy. However, the reports did not provide 

a specific diagnosis or reasoned opinion from a physician on whether and how any diagnosed 

condition was caused or contributed to by the claimed event. As explained, the evidence does not 

demonstrate clear evidence of error and does not require a merit review of the case. 

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the October 19, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 26, 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