United States Department of Labor 

Employees’ Compensation Appeals Board 

G.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New Orleans, LA, Employer 

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Docket No. 16-0681 

Issued: October 18, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 22, 2016 appellant, filed a timely appeal of a January 7, 2016 nonmerit 

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

elapsed from January 29, 2014, the most recent OWCP merit decision, to the filing of the current 

appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s 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

 Appellant submitted additional evidence with her appeal to the Board. The Board cannot consider this evidence 

as its review is limited to evidence which was before OWCP at the time of its merit decision. 20 C.F.R. 

§ 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 
2

FACTUAL HISTORY 

On June 29, 2010 appellant, then a 47-year-old clerk, filed a traumatic injury claim (Form 

CA-1), which OWCP accepted for sprain of the wrist, right (tear of the lunotriquettrial ligament 

of the right wrist), sprain of the wrist, radiocarpal, right (tear of the triangular fibro-cartilage 

complex of the right wrist). On December 7, 2010 OWCP accepted carpal tunnel syndrome on 

the right. On February 10, 2011 appellant underwent an authorized right scapholunate ligament 

repair and right carpal tunnel release.3

 On October 19, 2012 OWCP expanded the accepted 

conditions to include scapholunate advanced collapse of the right wrist and right wrist radiocarpal sprain. It authorized an arthrotomy with arthrodesis, total, right wrist on January 24, 

2013, performed by Dr. Christian Fahey, a Board-certified orthopedic surgeon. Appellant 

received appropriate compensation benefits. 

In a June 10, 2013 report, Dr. Fahey, noted that appellant presented for her postoperative 

visit. He examined her and found that she had tenderness at the distal end of the plate. 

Dr. Fahey remarked that despite his “admonition last visit, [appellant] did not make it to physical 

therapy.” He indicated that appellant had not returned to work. Dr. Fahey found that, 

objectively upon examination, she was no longer swollen and her fingers had full range of 

motion. He determined that the wrist was fused in the proper position and appellant had good 

supination and pronation. Dr. Fahey also indicated that there was no crepitus or popping around 

the plate and the tendons were intact. He opined that “X-rays two views look awesome, 

everything is healed in good alignment.” Dr. Fahey recommended a return to work full duty and 

requested therapy. He added, however, that appellant would not be able to do her work without 

problems, unless she worked on strengthening. On July 22, 2013 Dr. Fahey released her from 

care and opined that she was at maximum improvement, with no limitations or restrictions. 

On September 13, 2013 OWCP proposed to terminate appellant’s wage-loss 

compensation as the weight of the medical evidence established that she no longer had any 

residuals or disability as a result of the June 17, 2010 employment injury. It based its proposal 

on the opinion of Dr. Fahey who released her to full duty. 

On October 16, 2013 OWCP terminated appellant’s wage-loss compensation effective 

October 20, 2013. 

On December 18, 2013 appellant requested reconsideration. She did not submit any 

evidence or argument regarding the request for reconsideration from the October 16, 2013 

decision.4

 

By decision dated January 31, 2014, OWCP found that appellant’s request was 

insufficient to warrant a merit review of the October 16, 2013 decision. 

Thereafter, OWCP continued to receive inquiries and treatment records from appellant. 

This included the results of a July 28, 2014 functional capacity evaluation, which OWCP 

                                                             3

 On May 5, 2011 appellant underwent an authorized right wrist hardware removal. 

4

 Around this time, appellant was also pursuing a schedule award. In a January 29, 2014 decision, OWCP granted 

her a schedule award for 33 percent permanent impairment of the right arm. The award covered a period of 102.96 

weeks from October 20, 2013 to October 10, 2015. 
3

authorized, indicating that appellant provided submaximal effort and that she could return to her 

clerk duties. 

Also received were treatment records from Dr. Kenneth A. Grinspun, a Board-certified 

orthopedic surgeon. On July 1, 2014 he noted that appellant had complaints of continued pain in 

the right wrist. Dr. Grinspun noted that the date of injury was June 17, 2010. He diagnosed 

carpal instability and ordered additional testing. In a December 23, 2014 report, Dr. Grinspun, 

advised that appellant presented with a wrist complaint. He diagnosed carpal instability. In a 

January 15, 2015 report, Dr. Grinspun noted that electromyogram (EMG) scan results revealed 

mild carpal tunnel syndrome and reflex sympathetic dystrophy (RSD). 

A December 30, 2014 EMG scan read by Dr. Dale P. Cunningham, Board-certified in 

physical medicine and rehabilitation, revealed mild right median nerve compression at the wrist. 

He noted that the rest of the studies were normal. A February 2, 2015 nuclear bone joint image 

read by Dr. Maria T. Brooks, a Board-certified diagnostic radiologist, revealed no evidence of 

RSD. 

In a February 10, 2015 report, Dr. Grinspun advised that appellant was seen for a recheck 

of wrist complaint. He diagnosed mild carpal tunnel syndrome in the setting of previous left 

wrist fusion. Dr. Grinspun saw appellant on May 14, 2015 and diagnosed right wrist sprain. In a 

July 16, 2015 report, he advised that she was seen for a recheck of wrist complaint. The 

symptoms were located in the right wrist and the date of injury was June 17, 2010. Dr. Grinspun 

diagnosed right wrist sprain. In an August 20, 2015 report, he diagnosed chronic right wrist pain 

with mild carpal tunnel syndrome, status post wrist fusion. Dr. Grinspun saw appellant on 

September 17, 2015 and found persistent right wrist pain. 

On December 14, 2015 OWCP also received a reconsideration request form, which listed 

the date of the request as November 25, 2013 to October 5, 2015. On that same date, it also 

received an undated letter from appellant requesting reconsideration. Appellant explained that 

she was taking a lot of medication and experiencing pain and forgot about paperwork. She 

argued that she was in need of compensation as she had a family to take care of and bills that she 

was required to pay. Appellant requested that her compensation benefits be approved. 

In a decision dated January 7, 2016, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of 

error. 

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. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease or increase the compensation awarded; or 
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(2) award compensation previously refused or discontinued.”5

 

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.6

 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. To establish 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 be manifest on its face that OWCP committed an error.7

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting medical opinion or establish 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.8 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.9 It is not enough merely to establish that the evidence could be 

construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of 

the evidence previously of record and whether the new evidence demonstrates clear error on the 

part of OWCP.11 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.12

ANALYSIS 

In its January 7, 2016 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It rendered its last merit decision, regarding the termination issue 

on October 16, 2013. Appellant’s letter requesting reconsideration was received on 

December 14, 2015, more than one year after the October 16, 2013 merit decision. It was, 

therefore, untimely.13 Appellant’s reconsideration request explained that she was taking a lot of 

medication for pain and forgot about paperwork. To the extent that she asserts that the effects of 

her medication prevented her from filing a timely reconsideration request, the Board finds this 

                                                             5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.607(a). 

7 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

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

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

10 Id. 

11 Id. 

12 Nancy Marcano, 50 ECAB 110 (1998). 

13 See supra note 6. The reconsideration request must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought. 
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argument unpersuasive. The record contains no probative medical evidence to support that 

appellant’s medication rendered her unable to communicate in any way such that she could not 

timely request reconsideration.14 Consequently, appellant must demonstrate clear evidence of 

error on the part of OWCP in issuing the October 16, 2013 decision. 

The Board also finds that appellant has not established clear evidence of error on the part 

of OWCP. OWCP terminated her wage-loss compensation, effective October 20, 2013. On 

reconsideration appellant explained that she needed compensation as she had a family to take 

care of and bills that she was required to pay. She requested that her compensation benefits be 

approved. However, these assertions from appellant do not establish clear evidence of error. 

The Board notes that OWCP terminated her wage-loss compensation effective October 20, 2013, 

as the weight of the medical evidence established that she was no longer disabled from work as a 

result of her June 17, 2010 employment injury. This argument is not relevant as the issue is 

medical in nature.15

OWCP also received July 1, 2014 to September 17, 2015 reports from Dr. Grinspun, who 

noted that appellant had complaints of continued pain in the right wrist dating back to her 

June 17, 2010 employment injury. These reports documented her status including her claimed 

continuing symptoms and diagnoses. They did not specifically address whether appellant was 

disabled on or after October 20, 2013 due to an accepted condition. This evidence does not raise 

a substantial question as to the correctness of OWCP’s merit decision. Furthermore, even if 

these reports offered reasoned support for causal relationship of the claimed disability, they 

would be insufficient to demonstrate clear evidence of error. 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 merit decision was issued, would have created a conflict in 

medical opinion requiring further development, is not clear evidence of error.16 The Board 

makes an independent determination of whether a claimant has submitted clear evidence of error 

on the part of OWCP.17

OWCP also received a December 30, 2014 EMG read by Dr. Cunningham, which 

revealed mild right median nerve compression at the wrist and a diagnostic report dated 

February 2, 2015 read by Dr. Brooks, which, revealed no evidence of RSD. As noted above, 

these reports do not address whether appellant was disabled on or after October 20, 2013 due to 

an accepted condition. This evidence does not raise a substantial question as to the correctness 

of OWCP’s merit decision and they are insufficient to demonstrate clear evidence of error. 

OWCP also received a July 28, 2014 functional capacity evaluation from a physical 

therapist. Physical therapists are not considered physicians as defined under FECA and thus 

                                                             14 See 20 C.F.R. § 10.607(c). 

15 See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the 

claim was denied is insufficient to demonstrate clear evidence of error). 

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

Chapter 2.1602.5(a) (October 2011). 

17 Supra note 10. 
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their reports do not constitute competent medical evidence.18 Consequently, these reports are 

insufficient to establish clear error by OWCP with respect to the underlying medical issue. 

On appeal, appellant repeated the arguments on reconsideration. However, as explained, 

her request for reconsideration was untimely filed and she has not demonstrate clear evidence of 

error by OWCP. Because of this, OWCP properly denied a merit review 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 January 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 18, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             18 Id.; J.M., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); David P. Sawchuck, 57 ECAB 316, 322 n.11 

(2006); Allen C. Hundley, 53 ECAB 551 (2002).