United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Birmingham, AL, Employer 

__________________________________________ 

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Docket No. 17-0083 

Issued: March 21, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 17, 2016 appellant filed a timely appeal from a June 9, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a Board decision dated April 16, 2015, which became final after 30 days of 

issuance and is not subject to further review.1 Pursuant to the Federal Employees’ Compensation 

Act2

 (FECA) and 20 C.F.R. §§ 501.2(c), and 501.3, the Board lacks jurisdiction to review the 

merits of appellant’s claim.3

 1

 20 C.F.R. § 501.6(d); see R.M. Docket No. 14-1213 (issued October 15, 2014). 

2

 5 U.S.C. § 8101 et seq. 

3

 The Board notes that appellant submitted evidence with his appeal to the Board. The Board’s jurisdiction is 

limited to a review of the evidence of record that was before OWCP at the time it issued its final decision. Thus, the 

Board is precluded from reviewing this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); P.W., Docket 

No. 12-1262 (issued December 5, 2012). 
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. 

On appeal appellant asserts that he continues to have permanent restrictions due to the 

accepted lumbar sprain. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts relevant to the present appeal 

are set forth below. 

On April 20, 2010 appellant, then a 53-year-old letter carrier, injured his lower back 

while lifting a tub of mail. OWCP accepted that appellant sustained a lumbar sprain. Appellant 

received continuation of pay and wage-loss compensation based on Form CA-7 claims. The 

employing establishment informed OWCP that appellant returned to work on October 4, 2010, 

worked two days, and was sent home under the National Reassessment Process because no 

limited duty was available. He continued to receive wage-loss compensation through 

November 19, 2010. 

In reports dated November 30, 2010, Dr. J. Todd Smith, an attending Board-certified 

orthopedic surgeon, described examination findings and advised that appellant could return to 

full duty and had no impairment with regard to the April 20, 2010 work injury. On 

December 21, 2010 Dr. David J. Aarons, an attending internist, noted that he agreed with the 

interpretation provided by Dr. Smith with regard to appellant’s condition. 

Appellant returned to regular duty on December 11, 2010 and worked one full day. He 

then applied for Social Security Administration (SSA) disability income benefits, and also 

requested wage-loss compensation with OWCP. In a February 23, 2011 decision, OWCP found 

that the weight of the medical evidence rested with the opinion of Dr. Smith and terminated 

appellant’s wage-loss compensation and medical benefits, effective February 24, 2011. After 

appellant requested a review of the written record by an OWCP hearing representative, appellant 

noted that SSA disability had been approved and asserted that he continued to have work 

restrictions. On June 16, 2011 an OWCP hearing representative affirmed the February 23, 2011 

decision terminating appellant’s wage-loss compensation and medical benefits. Appellant filed 

an appeal with the Board, and, in an order dated May 9, 2012, the Board remanded the case to 

OWCP to combine File Nos. xxxxxx616 and xxxxxx952.4

 OWCP thereafter doubled the case 

files. 

By decision dated September 12, 2012, OWCP again found the weight of the medical 

evidence rested with Dr. Smith and terminated appellant’s wage-loss compensation and medical 

benefits, effective August 22, 2012. On October 5, 2012 appellant requested a hearing. He 

submitted additional medical evidence including a January 14, 2013 treatment note in which 

Dr. Aarons indicated that appellant’s diagnoses included multilevel degenerative disc disease. 

 4 See Order Remanding Case, Docket No. 11-2031 (issued May 9, 2012). 
3

By decision dated May 7, 2013, an OWCP hearing representative found that the medical 

evidence established that the lumbar sprain of April 20, 2010 had resolved and appellant had 

returned to baseline with regard to the preexisting degenerative disc disease. She affirmed the 

September 12, 2012 decision. 

On February 4, 2014 appellant requested reconsideration and submitted additional reports 

from Dr. Aarons. In April 30 and July 5, 2013 reports, Dr. Aarons indicated that appellant had 

severe multilevel degenerative disc disease with severe foraminal stenosis at L5-S1 that would 

not improve. He opined that appellant’s inability to work as a letter carrier was “directly due to 

[her] lumbar spine injury which I believe was incurred while working for the [employing 

establishment].” Dr. Aarons advised that appellant had permanent restrictions due to this injury 

of no lifting more than 10 pounds, no stooping, bending, twisting, or reaching over his head. 

Driving and sitting were limited to less than one hour. 

In a March 17, 2014 merit decision, OWCP found that Dr. Aarons did not explain how 

the April 20, 2010 employment injury caused or aggravated the diagnosed multilevel 

degenerative disc disease and that he failed to provide medical rationale to support that appellant 

continued to have disability or residuals due to the April 20, 2010 employment injury. In its 

April 16, 2015 decision, the Board affirmed the March 17, 2014 OWCP decision.5

In correspondence received on April 20, 2016 appellant, through counsel, requested 

reconsideration.6 He asserted that the medical evidence, including reports from Dr. Aarons and 

an April 2016 magnetic resonance imaging (MRI) scan of the lumbar spine established that 

appellant continued to be disabled due to the employment injury. 

Subsequent to the March 17, 2014 OWCP merit decision, appellant submitted reports 

dated March 9 through August 9, 2015 from doctors at Teamwork Ready Birmingham Clinics. 

In a March 9, 2015 report, Dr. Kathleen Warner, a Board-certified internist, noted appellant’s 

report of his job duties, the work injury, and his medical care. She noted appellant’s complaint 

of constant radiating low back pain and described examination findings of tenderness in the 

lumbosacral spine with decreased range of motion. Dr. Warner diagnosed lumbar disc disease 

and lumbosacral sprain. She opined that appellant’s traumatic injury, when he had to lift 150 

pounds, had been mishandled by OWCP. Dr. Warner recommended a lumbar MRI scan and 

physical therapy. On April 9, 2015 she noted that appellant was progressing well with physical 

therapy, but appeared somewhat impaired that day, likely due to overmedication with narcotics. 

On May 28, 2015 appellant was evaluated by Dr. Thomas Crumbley, a chiropractor, who 

noted his complaint of constant low back pain. Dr. Crumbley diagnosed lumbar sprain and 

recommended a functional capacity evaluation. 

In treatment notes dated June 30, July 27, and August 4, 2015 Dr. Rhett Krone, Boardcertified in emergency medicine, noted a history of chronic back pain. Examination of the back 

 5

 Docket No. 14-1407 (issued April 16, 2015). 

6

 At that time appellant was represented by Robert H. Turner, Jr., Esquire. 
4

demonstrated that appellant was generally nontender, had some restricted motion, and an antalgic 

gait. 

 A February 22, 2016 MRI scan of the lumbar spine demonstrated normal alignment, no 

evidence of an acute fracture or dislocation, and mild multilevel discogenic degenerative changes 

with moderate discogenic degenerative disease at the L5-S1 level. 

By decision dated June 9, 2016, OWCP denied appellant’s reconsideration request, 

finding that the request was untimely filed and failed to demonstrate clear evidence of error in 

OWCP’s last merit decision. 

LEGAL PRECEDENT 

Section 8128(a) of FECA7 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.8

 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.9 OWCP, through regulations has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP will 

not review a decision denying or terminating a benefit unless the application for review is 

timely. In order to be timely, a request for reconsideration must be received by OWCP within 

one year of the date of the last merit decision for which review is sought. Timeliness is 

determined by the document receipt date of the reconsideration request (the “received date”) in 

the Integrated Federal Employees’ Compensation System (iFECS).10 The Board has found that 

the imposition of this one-year time limitation does not constitute an abuse of the discretionary 

authority granted OWCP under 5 U.S.C. § 8128(a).11 

In those cases where requests for reconsideration are untimely filed, the Board has held 

that OWCP must nevertheless undertake a limited review of the case to determine whether there 

is clear evidence of error pursuant to the untimely request.12 OWCP procedures provide that it 

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

forth in OWCP regulations, if the claimant’s request for reconsideration demonstrates “clear 

evidence of error” on the part of OWCP.13

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 be manifest on its face that OWCP committed an error. Evidence which does not raise a 

 7

 5 U.S.C. § 8128(a). 

8 Thankamma Mathews, 44 ECAB 765 (1993). 

9 Id. 

10 20 C.F.R. § 10.607; G.F., Docket No. 15-1053 (issued September 11, 2015). 

11 Supra note 7. 

12 Id. 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016). 
5

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.14 The 

evidence submitted must not only be of sufficient probative value to create a conflict in 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.15 The Board must make 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.16 

ANALYSIS 

In a request received by OWCP on April 20, 2016 appellant, through counsel, requested 

reconsideration regarding his low back condition. The Board finds that as more than one year 

has elapsed between the most recent merit decision on this issue, dated April 16, 2015 decision, 

and appellant’s request for reconsideration received by OWCP on April 20, 2016, his request for 

reconsideration was untimely filed.17

The Board also finds that appellant failed to demonstrate clear evidence of error. 

In its April 16, 2015 decision, the Board found that OWCP met its burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits effective August 22, 2012 

because he had no residuals of the accepted lumbar sprain. The Board further found that he did 

not establish that he had any continuing employment-related disability or condition after that 

date causally related to the April 20, 2010 employment injury. It affirmed a March 17, 2014 

merit decision of OWCP.18 Absent further merit review of this issue by OWCP pursuant to 

section 8128 of FECA, this issue is res judicata.

19

The term “clear evidence of error” is intended to represent a difficult standard, and the 

argument provided here is not the type of positive, precise, and explicit evidence which 

 14 Robert G. Burns, 57 ECAB 657 (2006). 

15 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

16 Nancy Marcano, 50 ECAB 110 (1998). 

17 See supra note 13 at Chapter 2.1602.4a (February 2016), which provides that a right to reconsideration within 

one year accompanies any subsequent merit decision, including any merit decision by the Board. The Board notes 

that one year from the April 16, 2015 Board decision would be Saturday, April 16, 2016; therefore, the 

reconsideration request would have been timely if it had been received on Monday, April 18, 2016. It was not 

received until Wednesday, April 20, 2016. 

18 Supra note 4. 

19 See T.B., Docket No. 15-0001 (issued July 1, 2015). A decision of the Board is final upon the expiration of 30 

days from the date of the decision. 20 C.F.R. § 501.6(d). 
6

manifested on its face that OWCP committed an error.20 With the April 20, 2016 reconsideration 

request, counsel maintained that the medical evidence, including reports from Dr. Aarons and an 

April 2016 MRI scan of the lumbar spine, established continued disability from the employment 

injury. All reports of record submitted by Dr. Aarons had been reviewed by the Board in its 

April 16, 2015 decision. Appellant did not explain how resubmission of this evidence was 

positive, precise, and explicit in manifesting on its face that OWCP committed an error in 

denying his claim for further benefits.21 

As to the medical evidence submitted subsequent to the March 17, 2014 OWCP decision, 

while Dr. Warner opined that appellant’s case had been mishandled, she merely related 

appellant’s description of his job duties and medical treatment. Dr. Krone merely noted 

examination findings and diagnosed chronic back pain. He did not relate his findings to 

appellant’s employment or the April 20, 2010 work injury.22

As a chiropractor, Dr. Crumbley’s report is of no probative value because he did not 

diagnose a subluxation from x-ray, and, therefore, is not considered a “physician” under FECA.23 

The February 22, 2016 MRI scan report is of limited probative value as it contains no 

opinion on causal relationship24

As noted, evidence which does not raise a substantial question concerning the correctness 

of OWCP’s decision is insufficient to establish clear evidence of error.25 It is not enough merely 

to show that the evidence could be construed so as to produce a contrary conclusion.26 The 

Board finds that the evidence and argument submitted by appellant does not demonstrate clear 

evidence of error on the part of OWCP. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and failed 

to demonstrate clear evidence of error. 

 20 Supra note 14. 

21 See S.E., Docket No. 16-1258 (issued December 5, 2016). 

22 Willie M. Miller, 53 ECAB 697 (2002) (medical evidence that does not offer any opinion regarding the cause of 

an employee’s condition is of limited probative value on the issue of causal relationship). 

23 A.O., Docket No. 08-580 (issued January 28, 2009). Under section 8101(2) of FECA, the term “physician” 

includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of 

manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation 

by the Secretary. 5 U.S.C. § 8101(2); see D.S., Docket No. 09-860 (issued November 2, 2009). 

24 See id. 

25 See supra note 13; Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

26 See supra note 13; Leona N. Travis, 43 ECAB 227 (1991). 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 9, 2016 decision of the Office of Workers’ 

Compensation is affirmed. 

Issued: March 21, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board