United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Dallas, TX, Employer

__________________________________________

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Docket No. 16-1433

Issued: October 4, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 26, 2016 appellant filed a timely appeal from a December 29, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

elapsed from OWCP’s last merit decision, dated September 26, 2014, to the filing of this appeal, 

 

1 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 29, 2015, the date of OWCP’s last decision, was 

Sunday, June 26, 2016. As the appeal deadline fell on a weekend, the 180-day filing period is extended to the close 

of the next business day; Monday, June 27, 2016. 20 C.F.R. § 501.3(f)(2). Because using June 30, 2016, 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 June 26, 2016, 

rendering the appeal timely filed. 20 C.F.R. § 501.3(f)(1).
2

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 claim.3

ISSUE

The issue is whether OWCP properly denied appellant’s October 1, 2015 request for 

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

error. 

FACTUAL HISTORY

This case has previously been before the Board.4 On December 22, 2005 appellant, then 

a 49-year-old lead transportation security screener, sustained an injury in the performance of 

duty. She was attempting to move a bin from behind a screener to prevent her from falling over 

the bin. As appellant leaned across the machine exit ramp, she was hit by the next bag exiting 

the machine. The bag struck her right upper arm/shoulder. OWCP initially accepted appellant’s 

traumatic injury claim (Form CA-1) for right shoulder sprain/strain, cervical sprain/strain, and

displaced cervical intervertebral disc in OWCP File No. xxxxxx192. The claim was 

subsequently expanded to include right shoulder adhesive capsulitis, right shoulder osteoarthritis, 

brachial neuritis/radiculitis, and lumbar spinal stenosis. Appellant also sustained a work-related 

injury on March 22, 2006, which OWCP accepted for neck sprain, bilateral upper arm/shoulder 

sprain, and bilateral rotator cuff sprain under OWCP File No. xxxxxx511.5

On June 12, 2008 appellant underwent OWCP-approved right shoulder arthroscopy. She 

received wage-loss compensation for temporary total disability. OWCP placed her on the 

periodic compensation rolls effective July 6, 2008. On October 30, 2008 appellant underwent 

left shoulder arthroscopy. 

On February 3, 2009 appellant returned to work in a part-time limited-duty capacity. She 

worked four hours per day and OWCP paid her for four hours of wage-loss compensation per 

day. OWCP also paid intermittent wage-loss compensation for medical appointments and 

physical therapy. Appellant’s then treating physician, Dr. Karen M. Perl, continued to find her 

capable of performing limited-duty work.6

 

2

5 U.S.C. § 8101 et seq.

3 The record on appeal contains evidence received after OWCP issued its December 29, 2015 decision. The 

Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.

Thus, the Board is precluded from reviewing this evidence. 20 C.F.R. § 501.2(c)(1).

4 Docket No. 10-2113 (issued July 6, 2011) (the Board affirmed in part and set aside in part OWCP’s July 13, 

2010 overpayment determination).

5 OWCP administratively combined OWCP File No. xxxxxx511 with OWCP File No. xxxxxx192, and 

designated OWCP File No. xxxxxx192 as the master file. 

6 Dr. Perl specializes in pain medicine, as well as physical medicine and rehabilitation.
3

On June 1, 2010 appellant returned to work full time with restrictions in the position of 

lead transportation security officer. 

On August 11, 2010 appellant rejected a limited-duty assignment as a lead transportation 

security officer set to begin August 15, 2010. She stopped work on August 17, 2010. 

In an August 18, 2010 letter, the employing establishment requested that OWCP 

determine the suitability of the offered employment position. It noted that the only change from 

the limited-duty assignment that was issued on April 18, 2010, which appellant signed on June 1, 

2010, was the shift/hours of duty which were changed due to operational needs. 

By letter dated September 17, 2010, OWCP notified appellant that the duties and physical 

requirements of the offered position were suitable and in accordance with her medical limitations 

provided by Dr. Perl in her report of January 19, 2010, and that the position remained available 

to her.7 Appellant was notified that if she failed to report to work or failed to demonstrate that 

the failure was justified, pursuant to 5 U.S.C. § 8106(c)(2), her right to compensation for wageloss compensation and schedule award benefits would be terminated. She was afforded 30 days 

to respond. 

In response, appellant submitted an October 14, 2010 letter in which she alleged that she 

did not “abandon” her job. Rather, she alleged that she was told to sign out and leave. Medical 

reports, diagnostic tests, and physical therapy notes were also submitted along with a request to 

authorize Dr. Perl as appellant’s treating physician, which OWCP previously approved. 

In a February 18, 2011 letter, OWCP evaluated the evidence submitted by appellant and 

indicated that she had not provided a valid reason for refusing to accept the offered positon. 

Appellant was afforded 15 additional days to accept the position or her entitlement to wage-loss 

compensation and schedule award benefits would be terminated. 

On March 7, 2011 the employing establishment confirmed that the offered position was 

still available and that appellant had yet to return to work.

By decision dated March 8, 2011, OWCP terminated appellant’s wage-loss compensation 

and schedule award benefits, effective August 17, 2010, as she refused suitable work. It found 

that none of the reasons she provided or the medical evidence submitted were considered valid 

reasons or probative evidence to support her abandonment of suitable work. 

On February 27, 2012 OWCP received appellant’s February 20, 2012 request for 

reconsideration by her then-representative, along with additional evidence.

By decision dated May 25, 2012, OWCP denied modification of its March 8, 2011 

decision. It found that the weight of the medical evidence established that, at the time the job 

offer was made, appellant was capable of performing the modified position. Further, when 

appellant was notified of the position’s suitability on September 17, 2010, she had the burden of 

proof to show that her refusal to work in the offered position was justified. 

 

7

In her January 19, 2010 report, Dr. Perl released appellant to work full time and light duty with restrictions. 
4

On May 10, 2013 OWCP received appellant’s appeal request form dated May 2, 2013 

requesting reconsideration along with additional medical evidence. 

By decision dated May 23, 2013, OWCP denied modification of its May 25, 2012 

decision. It noted that the medical evidence of record indicated that at the time of the decision 

appellant was successfully working in the offered light-duty position for over two months when 

she stopped working. There was no rationalized medical evidence to support a material change 

in her condition during the period in question. 

On January 8, 2014 OWCP expanded appellant’s claim to include right shoulder adhesive 

capsulitis, right shoulder osteoarthritis, brachial neuritis/radiculitis, and lumbar spinal stenosis. 

On May 22, 2014 appellant’s representative, requested reconsideration and submitted 

additional evidence. 

By decision dated September 26, 2014, OWCP denied modification of its May 23, 2013 

decision. It noted that any change in appellant’s stated work limitations or deterioration of a 

medical condition after the March 8, 2011 decision terminating compensation under section 

8106(c)(2) would not have any effect on the prior decision. 

On October 1, 2015 OWCP received appellant’s September 24, 2015 request for

reconsideration. Appellant submitted the appeal request form that accompanied OWCP’s 

September 26, 2014 decision. In a separate letter, also dated September 24, 2015, she argued 

that OWCP relied upon the records from Dr. Perl in finding the position suitable, but appellant

had not been seen by Dr. Perl for nearly eight months from the time of OWCP’s 30-day letter. 

Appellant also noted that she had requested in January 2010 to be released from Dr. Perl’s care, 

which OWCP ultimately authorized in September 2010. She indicated that, in June 2014, the 

Office of Personnel Management (OPM) approved her for disability.

Medical reports and diagnostic testing dated September 3, 2014 through December 9, 

2015 were also received. In a September 21, 2015 report, Dr. Ronnie D. Shade, a

Board-certified orthopedic surgeon, indicated that appellant stopped work on August 17, 2010 

and he became her treating physician on September 20, 2010. He indicated that he had 

recommended that she be off work because of cervical radicular symptoms with numbness and 

tingling down her right shoulder and bilateral shoulder weakness. Dr. Shade indicated that, due 

to bio-mechanics utilized by appellant’s arms, shoulders, and neck, she would be unable to 

perform the job duties of a Travel Document Checker which consists of, but is not limited to,

reaching, pushing, pulling, and lifting. He noted that the findings contained in the June 24, 2010 

electromyogram (EMG) and indicated that the testing showed that she suffered from 

comprehensive neurological, musculoskeletal issues prior to her stopping work on 

August 17, 2010. Dr. Shade opined, based on that EMG testing and his medical expertise, that 

appellant was unable to perform the August 17, 2010 and March 21, 2011 job offers. 

In progress reports of April 16, May 14, and November 25, 2015, Dr. Shade provided an 

assessment of cervical herniated nucleus pulposus, multilevel (3) cervical spinal stenosis, 

bilateral impingement syndrome -- surgically treated, right shoulder acromioclavicular 

osteoarthritis, right rotator cuff tear, right shoulder adhesive capsulitis shoulder, left carpal tunnel 
5

syndrome by EMG, depression/anxiety, and chronic pain syndrome. He indicated that appellant 

had secondary emotional conditions directly related to her December 22, 2005 employment 

injury and impeded her ability to recover. Dr. Shade also opined that she continued to require 

mental and physical medical care as a result of the work-related injury which left her temporarily 

totally disabled. He noted that the accepted conditions were still present and appellant would be 

at risk to herself and to the employing establishment if she returned to work. Dr. Shade noted 

that her medical disability retirement was pending. He further opined that OWCP File 

No. xxxxxx511, for an accepted bilateral shoulder condition, should be reopened for appellant’s

left shoulder conditions. In a February 10, 2015 report, Dr. Shade opined that her accepted 

conditions should be upgraded to include cervical radiculopathy and left shoulder impingement. 

By decision dated December 29, 2015, OWCP denied appellant’s latest request for 

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

LEGAL PRECEDENT

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

matter of right.8 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.9 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.10 OWCP will consider an untimely request for reconsideration only if the request 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.11 

The request must establish on its face that such decision was erroneous.12 Where a request is 

untimely and fails to present any clear evidence of error, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.13

 

8 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.607.

10 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

11 Id. at § 10.607(b).

12 Id. To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue that was 

decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit 

and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is 

not enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that 

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

clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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 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. Thankamma Mathews, 44 ECAB 765, 770 (1993).

13 20 C.F.R. § 10.608(b).
6

ANALYSIS

The last merit decision in appellant’s claim was dated September 26, 2014. OWCP 

denied modification of its prior decision finding that appellant refused an offer of suitable work. 

Appellant had one year from the September 26, 2014 merit decision to timely request 

reconsideration. The last day of the one-year filing period fell on a weekend. Therefore, 

appellant had until Monday, September 28, 2015 to timely request reconsideration.14 Because 

her request for reconsideration was not received by OWCP until October 1, 2015, it was 

untimely filed. Consequently, appellant must demonstrate clear evidence of error on the part of 

OWCP in terminating compensation pursuant to 5 U.S.C. § 8106(c)(2).15

The Board finds that appellant’s untimely request for reconsideration fails to demonstrate 

clear evidence of error on the part of OWCP. On March 8, 2011 OWCP made a determination 

that she had refused an offer of suitable work and terminated wage-loss compensation and 

schedule award benefits, effective August 17, 2010. Subsequently, it denied multiple requests 

for reconsideration of this decision, finding that the evidence was insufficient to modify the prior 

termination of compensation benefits which occurred pursuant to 5 U.S.C. § 8106(c)(2).

In support of her October 1, 2015 request for reconsideration, appellant submitted 

medical reports and diagnostic testing dated September 3, 2014 through December 9, 2015. In a 

September 21, 2015 report, Dr. Shade noted that he became her treating physician on 

September 20, 2010. He recommended that appellant be off work because of cervical radicular 

symptoms with numbness and tingling down her right shoulder and bilateral shoulder weakness. 

Dr. Shade indicated that, due to bio-mechanics utilized by her arms, shoulders, and neck, she 

would be unable to perform the job duties of a travel document checker and that the June 24, 

2010 EMG showed that she suffers from a comprehensive neurological, musculoskeletal issues 

prior to her stopping work on August 17, 2010. He opined, based on that EMG testing and his 

medical expertise, that appellant was unable to perform the August 17, 2010 and March 21, 2011 

job offers. 

While Dr. Shade’s report is generally supportive of appellant’s inability to work the 

offered position, it does not demonstrate clear error on the part of OWCP in its suitable work 

determination. It fails to raise a substantial question concerning the correctness of OWCP’s 

decision at the time that it was issued.16 Dr. Shade’s progress reports, as well as the other 

medical evidence and diagnostic testing submitted, also fail to raise a substantial question 

concerning the correctness of OWCP’s decision at the time that it was issued.

To demonstrate clear evidence of error, it is not sufficient merely to show that the 

evidence could be construed so as to produce a contrary conclusion. Clear evidence of error is 

intended to represent a difficult standard. None of the evidence submitted manifests on its face 

that OWCP committed an error in terminating appellant’s compensation for refusal of suitable 

 

14 See supra note 10 at Chapter 2.1602.4 (February 2016).

15 Supra note 11; see Debra McDavid, 57 ECAB 149 (2005).

16 R.R., Docket No. 14-1272 (issued October 15, 2014). 
7

work. Appellant has not otherwise submitted evidence of sufficient probative value to raise a 

substantial question as to the correctness of OWCP’s determination. Thus, the evidence is 

insufficient to demonstrate clear evidence of error.

Appellant argued that it was error to rely upon Dr. Perl’s opinion regarding her ability to 

work as her report was at least eight months old when OWCP issued its 30-day letter regarding 

job suitability. She indicated that, in January 2010, she requested authorization to change 

treating physicians, which OWCP subsequently approved. Appellant also claimed that OWCP 

had reprimanded Dr. Perl her handling of appellant’s case. The Board finds that appellant’s 

complaints and arguments pertaining to OWCP’s determination that the offered job was suitable 

based upon the report by Dr. Perl are insufficient to prima facie shift the weight and raise 

fundamental questions as to the correctness of OWCP’s decision to terminate compensation 

pursuant to 5 U.S.C. § 8106(c)(2).17

Appellant also argued before OWCP and on appeal that OWCP did not take into 

consideration that OPM had rendered her medically disabled. As to her contentions regarding 

disability determinations by OPM, the Board notes that findings of other administrative agencies 

are not determinative of her level of disability under FECA. It is well established that decisions 

of other federal agencies or governmental bodies are not dispositive to issues raised under 

FECA. Decisions made by such tribunals are pursuant to different statutes, which have varying 

standards for establishing eligibility for benefits.18 Accordingly, the Board finds that the 

arguments and evidence submitted by appellant are insufficient to demonstrate clear evidence of 

error.

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.

 

17 F.K., Docket No. 08-0526 (issued August 18, 2008) (The Board found that since the new physician’s reports 

offered no new evidence on the issue of whether OWCP properly terminated appellant’s compensation benefits 

because the claimant refused an offer of suitable work, they were insufficient to raise a substantial question as to the 

correctness of OWCP’s decision and did not demonstrate clear evidence of error). 

18 A.C., Docket No. 11-1388 (issued January 5, 2012); Andrew Fullman, 57 ECAB 574 (2006).
8

ORDER

IT IS HEREBY ORDERED THAT the December 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 4, 2017

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