United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.J., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

NORTH TEXAS HEALTH CARE SYSTEM, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 16-1283 

Issued: June 6, 2017 

Appearances: Case Submitted on the Record

Michael E. Woods, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On June 3, 2016 appellant, through his representative, filed a timely appeal from a 

May 9, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As 

more than 180 days elapsed from the last merit decision, dated July 30, 2014, to the filing of this 

appeal, 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 the claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
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. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated April 7, 2015,3

 the 

Board found that OWCP had improperly applied the standard for timely reconsideration requests 

rather than the clear evidence of error standard applicable to untimely reconsideration requests. 

The Board set aside OWCP’s August 19, 2015 decision and remanded the case for OWCP to 

apply the appropriate standard. The relevant facts of the case are as follows. 

On May 24, 2005 appellant, then a 24-year-old medical support assistant, filed an 

occupational disease claim (Form CA-2) alleging that he developed right cervical disc bulge and 

right arm pain due to his employment duties. His attending physician, Dr. Douglas S. Won, a 

Board-certified orthopedic surgeon, found that appellant was totally disabled through 

May 12, 2005. On July 7, 2005 OWCP accepted his claim for right carpal tunnel syndrome. 

OWCP referred appellant for a second opinion evaluation with Dr. Robert M. Chouteau, 

a Board-certified orthopedic surgeon, on June 29, 2007. In a report dated July 17, 2007, 

Dr. Chouteau noted that his examination of appellant was normal and that appellant showed no 

evidence of disability based on the accepted diagnosis of right carpal tunnel. He opined that 

appellant could return to full duty with no restrictions. 

Dr. Washington disagreed with Dr. Chouteau’s conclusions on August 16, 2007 and 

noted that appellant’s electrodiagnostic studies supporting his ongoing diagnosis of carpal tunnel 

syndrome. 

Due to the conflict of medical opinion evidence regarding whether appellant’s carpal 

tunnel syndrome was ongoing, OWCP referred appellant to Dr. James Hood, a Board-certified 

orthopedic surgeon on September 6, 2007. In his October 3, 2007 report, Dr. Hood found 

positive median compression test, positive Phalen’s test, and decreased two-point discrimination. 

He concluded that appellant could return to light-duty work, but recommended a carpal tunnel 

release and decompression of the right shoulder. 

Appellant underwent a right carpal tunnel surgical release on November 16, 2007. 

Following this surgery, Dr. Washington provided work restrictions. Beginning on January 15, 

2009 Dr. Washington no longer provided work restrictions. 

On August 3, 2009 OWCP referred appellant for a second opinion evaluation with 

Dr. Arthur Sarris, a Board-certified orthopedic surgeon. In a report dated August 27, 2009, 

Dr. Sarris opined that appellant continued to experience residuals and disability due to his 

accepted right carpal tunnel syndrome. He found that appellant was totally disabled. 

 3

 Docket No. 15-1797 (issued April 7, 2016). 
3

Dr. Washington continued to diagnose right carpal tunnel syndrome and indicate that 

appellant was totally disabled throughout 2009, 2010, and 2011. Appellant’s surgeon, 

Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon, also supported appellant’s continued 

carpal tunnel syndrome and disability for work on June 30, 2011. 

On September 28, 2011 OWCP again referred appellant for a second opinion report with 

Dr. Marvin E. Van Hal, a Board-certified orthopedic surgeon, to determine the nature and extent 

of appellant’s disability. In a report dated December 13, 2011, Dr. Van Hal found that Phalen’s 

test and Tinel’s sign were negative. He noted that appellant’s two-point discrimination was 

normal. Dr. Van Hal opined that appellant was not disabled from work due to his accepted 

condition of carpal tunnel syndrome. He found no objective evidence of residuals. 

Dr. Washington reviewed Dr. Van Hal’s report on February 9 and March 8, 2012 and 

disagreed with his findings and conclusions. He supported appellant’s ongoing disability due to 

carpal tunnel syndrome. 

To resolve the new conflict in medical opinion regarding whether appellant had 

continuing disability, OWCP selected Dr. Charles Kennedy, a Board-certified orthopedic 

surgeon, to serve as the impartial medical examiner through an ME023 dated December 3, 2012. 

There was also a screen capture of his selection. On December 5, 2012 OWCP referred 

appellant for an impartial medical examination with Dr. Kennedy. In a report dated 

December 28, 2012, Dr. Kennedy found that appellant was not disabled from work and no longer 

exhibited right carpal tunnel syndrome. He opined that appellant could return to his regular-duty 

position. 

On March 14, 2013 OWCP proposed to terminate appellant’s wage-loss compensation 

based on Dr. Kennedy’s report. No additional evidence was received by OWCP. In an April 24, 

2013 decision, it terminated appellant’s wage-loss benefits, effective April 7, 2013, based on 

Dr. Kennedy’s report. 

Dr. Washington submitted a series of ongoing reports dated December 4, 2013, 

January 30 and May 8, 2014 which continued to support appellant’s diagnosis of right carpal 

tunnel syndrome and his disability for work. Dr. Washington continued to support appellant’s 

diagnosis of right carpal tunnel syndrome and his disability from work in 2014. 

Appellant sought treatment from Dr. Ronnie D. Shade, a Board-certified orthopedic 

surgeon beginning February 19, 2015. Dr. Shade noted that appellant underwent right shoulder 

surgery on January 19, 2015. He diagnosed impingement syndrome (right shoulder, surgically 

treated), cervical radiculopathy C5-6, bilateral carpal tunnel syndrome, and bilateral cubital 

tunnel syndrome. 

OWCP issued a decision dated May 7, 2015 accepting the additional conditions of 

brachial neuritis or radiculitis, and a right shoulder condition. Appellant submitted a claim for 

compensation (Form CA-7) requesting wage-loss compensation from April 7, 2013 through 

May 14, 2015. In a letter dated May 19, 2015, OWCP informed appellant that the additional 

conditions had been accepted in error and requested that appellant submit a new claim. 
4

Dr. Shade completed an attending physician’s report (Form CA-20) on May 13, 2015 and 

opined that appellant was totally disabled. He diagnosed right carpal tunnel syndrome, brachial 

neuritis or radiculitis, and condition of the right shoulder. Dr. Shade indicated by checking a box 

marked “yes” that appellant’s conditions were due to his employment. In a separate narrative 

report, he attributed appellant’s diagnosed conditions to his employment duties of eight hours of 

computer repetitive keying, telephone usage, repetitive motions, inserting data in the computer, 

simple grasping, and prolonged sitting. Dr. Shade continued to diagnose carpal tunnel 

syndrome, brachial neuritis, and right shoulder condition. 

In a letter dated June 15, 2015, appellant’s representative requested a copy of documents 

showing the bypass and selection process from referee physician Dr. Kennedy. In a letter dated 

June 16, 2015, OWCP provided this information. 

On June 29, 2015 appellant, through his representative, requested reconsideration of the 

April 24, 2013 termination decision. He argued that Dr. Kennedy had been improperly selected 

as the impartial medical examiner. In support of this request, the representative submitted 

Dr. Kennedy’s physician profile from the Texas medical board. He also alleged that appellant 

was allowed less than 30 days to respond to the pretermination notice. 

Appellant continued to submit reports from Dr. Shade dated June 18 through 

July 24, 2015. Dr. Shade listed appellant’s diagnosed conditions of right carpal tunnel 

syndrome, brachial neuritis, and right shoulder impingement. He did not address appellant’s 

disability for work. 

On August 19, 2015 OWCP made a payment in the amount of $2,129.00 for the period 

April 7 through May 4, 2014 to appellant. 

By decision dated August 19, 2015, OWCP denied appellant’s request for reconsideration 

of the merits of his claim. 

Appellant appealed to the Board. In its April 7, 2016 decision,4

 the Board found that 

appellant’s request for reconsideration was untimely filed and that OWCP had improperly 

applied the standard for timely requests for reconsideration. The Board set aside OWCP’s 

August 19, 2015 decision and remanded the case for OWCP to apply the appropriate standard. 

In a letter received by OWCP on April 26, 2016, appellant’s representative requested a 

new impartial medical examination. He contended that Dr. Kennedy’s selection was 

inappropriate as his primary address was outside the 25-mile initial selection pool, and his 

selection should be voided. The representative further asserted that OWCP could not verify how 

it had selected Dr. Kennedy. He also contended that appellant had not received due process as 

the notice of proposed termination was issued on March 14, 2013 and his benefits were 

terminated on April 7, 2013. The representative argued that appellant was entitled to the full 30 

days prescribed by statue. Finally, he asserted that as appellant was denied due process and as 

Dr. Kennedy was not chosen in the manner which supports his impartiality, Dr. Kennedy’s report 

 4 Id. 
5

was not entitled to special weight and could not meet OWCP’s burden of proof to terminate 

appellant’s compensation benefits. 

By decision dated May 9, 2016, OWCP denied appellant’s request for reconsideration, as 

it was untimely filed and failed to demonstrate clear evidence of error. It found that appellant 

received compensation benefits through May 4, 2013 in a payment dated August 28, 2015. 

OWCP noted that the notice of proposed termination was issued on March 14, 2013 and the final 

decision was issued over 30 days later meeting the due process requirement. It determined that 

Dr. Kennedy had been properly selected as his practice had offices within 30 miles from 

appellant’s home. 

LEGAL PRECEDENT 

Section 8128(a) of FECA5

 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.6 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.7 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 OWCP’s 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 Employee’s Compensation System (iFECS)].8 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).9

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 the 

claimant has demonstrated clear evidence of error.10 OWCP’s procedures provide that OWCP 

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

forth in its regulations, if the claimant’s request for reconsideration demonstrates clear evidence 

of error on the part of OWCP.11

 5

 5 U.S.C. § 8128(a). 

6 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

7 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

8

 20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(February 2016). G.F., Docket No. 15-1053 (September 11, 2015). 

9 Supra note 6 at 769; Jesus D. Sanchez, supra note 7 at 967. 

10 Supra note 6 at 770. 

11 See Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5 (February 2016). 
6

Clear evidence of error is intended to represent a difficult standard. The claimant must 

present evidence which, on its face, shows that OWCP made a mistake.12 To demonstrate clear 

evidence of error, a claimant must submit evidence relevant to the issue which was decided by 

OWCP.13 The evidence must be positive, precise, and explicit and must be manifest on its face 

that OWCP committed an error.14 Evidence which does not raise a substantial question 

concerning the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of 

error.15 It is not enough merely to show that the evidence could be construed so as to produce a 

contrary conclusion.16 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.17 To demonstrate clear evidence of 

error, 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.18 The Board must make an independent determination of 

whether a claimant has demonstrated 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.19

ANALYSIS 

In the April 7, 2016 decision, the Board found that appellant’s June 29, 2015 request for 

reconsideration was untimely as it had not been received by OWCP within one year of the 

April 24, 2013 decision terminating his claim. The case was remanded for OWCP to apply the 

standard for an untimely request for reconsideration. By decision dated May 9, 2016, OWCP 

reviewed the evidence of record and found that it did not demonstrate clear evidence of error. 

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.20

In support of his request for reconsideration, appellant submitted additional reports from 

Dr. Washington dated December 4, 2013 through May 8, 2014. These reports continued to 

support appellant’s diagnosis of right carpal tunnel syndrome and his disability for work. The 

Board notes that clear evidence of error was intended to represent a difficult standard. Even the 

submission of a detailed, well-reasoned medical report which, if submitted before the denial as 

 12 Id. 

13 Supra note 6. 

14 Leona N. Travis, 43 ECAB 227, 241 (1991). 

15 Jesus D. Sanchez, supra note 7 at 968. 

16 Supra note 14. 

17 Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

18 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 

19 Nancy Marcano, 50 ECAB 110 (1998). 

20 Id. 
7

issued, would have created a conflict in medical opinion requiring further development, is 

insufficient to demonstrate clear evidence of error.21 The additional reports of Dr. Washington, 

while supportive of appellants’ claim, fail to demonstrate clear error in the April 24, 2013 

decision. 

Appellant also submitted medical evidence from Dr. Shade. He diagnosed carpal tunnel 

syndrome and indicated that appellant’s conditions were due to his employment duties of eight 

hours of computer repetitive keying, telephone usage, repetitive motions, inserting data in the 

computer, simple grasping, and prolonged sitting. While Dr. Shade supported that appellant had 

continuing disability due to his accepted condition, his opinion is insufficient to raise a 

substantial question as to the correctness of OWCP’s decision. As noted, clear evidence of error 

was intended to represent a difficult standard.22 The Board finds that Dr. Shade’s reports do not 

rise to the level of clear evidence of error. 

Appellant’s representative argues that OWCP committed procedural errors in terminating 

appellant’s compensation benefits. He asserts that Dr. Kennedy was not properly selected to 

serve as the impartial medical examiner. The representative further alleges that Dr. Kennedy’s 

office was located too far away from appellant’s zip code to be selected as the first appropriate 

physician. Other than broad allegations, appellant has not provided any substantive evidence of 

clear evidence of error in the selection of Dr. Kennedy. 

Appellant also argues that OWCP violated due process by improperly terminating his 

compensation benefits less than 30 days after the pretermination notice. OWCP issued its 

pretermination notice on March 14, 2013. In a decision dated April 24, 2013, OWCP terminated 

appellant’s wage-loss compensation, effective April 7, 2013. OWCP afforded appellant more 

than 30 days from the pretermination notice until the final decision to respond. This time period 

is appropriate in accordance with OWCP’s regulations.23 Furthermore, as to appellant’s 

assertion that his constitutional rights to due process were violated, the Supreme Court has held 

that constitutional questions are unsuited to resolution in administrative hearing procedures.24 

As the Board and OWCP are administrative bodies, neither has jurisdiction to review a 

constitutional claim such as that made by appellant.25 

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. 

 21 W.C., Docket No. 16-0991 (issued December 1, 2016). 

22 Id. 

23 20 C.F.R. § 10.540. 

24 See Johnson v. Robinson, 415 U.S. 361 (1974) and cases cited therein. 

25 S.C., Docket No. 16-1572 (issued January 24, 2017). 
8

ORDER 

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

Compensation Programs is affirmed. 

Issued: June 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board