United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Salisbury, MD, Employer 

__________________________________________ 

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Docket No. 16-0913 

Issued: October 4, 2016 

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 April 1, 2016 appellant filed a timely appeal from a March 18, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year 

elapsed since the last merit decision dated March 28, 2006 to the filing of this appeal,1

 pursuant 

to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.3 

 1

 For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a 

Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008). 

2

 5 U.S.C. § 8101 et seq. 

3

 Appellant requested an oral argument before the Board. By order dated August 11, 2016, the Board exercised 

its discretion and denied the request, finding the issue could properly be addressed based on the evidence of record. 

Order Denying Request for Oral Argument, Docket No. 16-0913 (issued August 11, 2016). 
2

ISSUE 

The issue is whether appellant’s request for reconsideration was untimely filed and failed 

to demonstrate clear evidence of error. 

FACTUAL HISTORY 

On February 16, 2006 appellant, then a 41-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that, on January 18, 2006, she sustained injuries while lifting 

and pulling a patient in the performance of duty. She submitted a treatment note from the 

employing establishment health unit dated January 18, 2006 indicating that she reported 

aggravating her right shoulder by pulling a heavy patient up in bed. A note from an employing 

establishment osteopath, Dr. Deborah Edelman, indicated that appellant should not lift more than 

20 pounds. In a note dated March 1, 2006, Dr. Daryl Rosenbaum, a family practitioner, reported 

that appellant could work light duty with a 20-pound lifting restriction and no repetitive use of 

her wrists.4

By decision dated March 28, 2006, OWCP denied the claim for compensation. It found 

the incident had occurred as alleged, but the medical evidence was insufficient to establish the 

claim for compensation. 

On January 13, 2015 appellant filed a recurrence claim (Form CA-2a) in which she 

reported the date of original injury, and the date of first medical treatment following recurrence, 

as January 18, 2006. 

OWCP received appellant’s request for reconsideration of her claim on March 15, 2016. 

In a letter of that date, appellant asserted that she injured her right shoulder and neck on 

January 18, 2006 when lifting and pulling a patient. She wrote that an electromyogram (EMG) 

in February 2006 showed nerve damage and she had neck surgery in 2006 “and two other dates.” 

According to appellant, she had right shoulder surgeries in 2014 and 2015 for a rotator cuff tear. 

As to medical evidence, appellant submitted a February 16, 2006 report, which appears to 

be the first page of an unsigned report indicating that the nerve conduction showed prolonged 

median motor terminal latencies. In a report dated June 28, 2006, Dr. William Mason,5

 indicated 

that appellant had a history of carpal tunnel syndrome and bilateral shoulder pain. He wrote that 

the carpal tunnel syndrome and shoulder problems were probably related to the job as a nursing 

assistant. Appellant also submitted notes from Dr. Mason dated July 26, November 6 

and 29, 2006. In the November 29, 2006 note, Dr. Mason indicated that appellant would be 

unable to continue light-duty work, referring to dizziness and pain in the hands and neck. The 

record contains the first page of an unsigned report dated October 19, 2009 indicating that 

appellant had bilateral hand numbness. 

 4

 Dr. Rosenbaum also reported in a separate March 1, 2006 note that appellant had evidence of carpal tunnel 

syndrome. 

5

 Dr. Mason’s credentials could not be verified. 
3

In a report dated December 15, 2014, Dr. Robert Humble, a Board-certified orthopedic 

surgeon, reported that appellant had right rotator cuff surgery five or six weeks earlier. He 

opined that it was likely the result of repetitive lifting, pulling, and pushing at work. Appellant 

also submitted a February 13, 2015 report from Dr. Humble. Dr. Humble reported that he first 

treated appellant in October 2014, and she apparently had an injury on January 18, 2006. He 

wrote that it could have been an initiating injury that led to ongoing shoulder impingement and 

ultimately a rotator cuff tear. By report dated June 24, 2015, Dr. Ranjan Roy, a Board-certified 

neurosurgeon, indicated that he had performed neck and back surgeries on appellant, but the only 

mention of a workplace injury was in the new patient forms appellant completed. 

By decision dated March 18, 2016, OWCP denied appellant’s reconsideration request as 

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

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.6

 The 

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”7

According to 5 U.S.C. § 8128(a), a claimant is not entitled 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 under 5 U.S.C. 

§ 8128(a) of FECA.10 As one such limitation, 20 C.F.R. § 10.607 provides that an application 

for reconsideration must be received within one year of the date of OWCP’s decision for which 

review is sought.11 OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The 

evidence must be positive, precise, and explicit and must manifest on its face that OWCP 

committed an error.12 

To demonstrate 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 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.605 (2012). 

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

9

 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 

10 Supra note 2. 

11 20 C.F.R. § 10.607 (2012). 

12 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 
4

claimant and raise a substantial question as to the correctness of OWCP’s decision.13 Evidence 

that does not raise a substantial question concerning the correctness of OWCP’s decision is 

insufficient to demonstrate clear evidence of error.14 It is not enough merely to show that the 

evidence could be construed so as to produce a contrary conclusion.15 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.16

ANALYSIS 

In the present case, OWCP’s decision reviewing the merits of the claim was dated 

March 28, 2006. Appellant’s reconsideration request was received on March 15, 2016. As noted 

above, she had one year from the March 28, 2006 merit decision to timely request 

reconsideration.17 Since the reconsideration request was received more than one year after 

March 28, 2006, it is properly found to be untimely. 

As an untimely reconsideration request, appellant must demonstrate clear evidence of 

error by OWCP. The basis for the denial of the claim on March 28, 2006 was that the medical 

evidence failed to establish a diagnosed condition as causally related to the January 18, 2006 

employment incident. On reconsideration appellant submitted additional medical evidence, but 

the evidence does not demonstrate clear evidence of error. Dr. Mason did not provide a history 

of the January 18, 2006 employment incident. He speculated that carpal tunnel syndrome and 

shoulder problems were related to appellant’s job, without further explanation. Dr. Humble did 

not provide a complete background and referred to repetitive activity, not the January 18, 2006 

incident. Dr. Roy did not provide a complete background or an opinion as to a diagnosed 

condition causally related to the January 18, 2006 incident. 

As noted above, the evidence 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.18 The Board finds the evidence does not demonstrate clear evidence of error 

and, therefore, OWCP properly denied the reconsideration request without merit review. 

On appeal, appellant argues that she did sustain injuries as a result of the January 18, 

2006 employment incident and that she had submitted medical evidence over the years. She 

resubmitted medical evidence of record. The Board does not have jurisdiction over the merits of 

the claim for compensation, as discussed above. Based on the evidence of record, appellant 

submitted an untimely reconsideration request and failed to demonstrate clear evidence of error. 

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

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

15 Id. 

16 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

17 Supra note 10. 

18 Supra note 12. 
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CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated March 18, 2016 is affirmed. 

Issued: October 4, 2016 

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