United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.B., Appellant

and

DEPARTMENT OF THE NAVY, MARE 

ISLAND NAVAL SHIPYARD, Vallejo, CA, 

Employer

__________________________________________

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Docket No. 17-0234

Issued: August 1, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 10, 2016 appellant filed a timely appeal from an October 5, 2016 nonmerit 

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

elapsed from the last merit decision, dated January 12, 2001, 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 adverse final decisions issued by OWCP prior to November 19, 2008, the Board’s review authority is limited 

to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R. 

§ 501.3(d)(2) (2008).

2 5 U.S.C. § 8101 et seq.

3 Appellant submitted additional evidence with his appeal. The Board’s jurisdiction, however, is limited to the 

evidence that was before OWCP at the time of its final decision. Thus, the Board is precluded from considering this 

evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

The issue is whether OWCP properly denied appellant’s July 11, 2016 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 The facts and circumstances set forth in 

the prior Board decisions are incorporated herein by reference. The relevant facts are as follows. 

On March 5, 1985 appellant, then a 39-year-old shipfitter, filed a traumatic injury claim (Form 

CA-1) alleging that he sustained injuries to his right knee and lower back in the performance of 

duty on January 16, 1985. He indicated that his injury occurred while bending and squatting to 

get plans from below. Under OWCP File No. xxxxxx783, OWCP accepted appellant’sJanuary 16, 

1985 traumatic injury for “[reaction to right sacroiliac area and medial right knee].”

5 Appellant 

received wage-loss compensation for temporary total disability, and OWCP placed him on the 

periodic compensation rolls effective June 9, 1985.

By decision dated June 16, 1993, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective June 27, 1993 because he no longer suffered residuals of the 

January 16, 1985 employment injury and had no remaining injury-related disability. It based its 

decision on the June 11 and August 20, 1992 reports from Dr. Harle B. Grover, a Board-certified 

orthopedic surgeon and OWCP referral physician, who examined appellant on May 28, 1992. A 

representative of OWCP’s Branch of Hearings and Review affirmed the termination of 

compensation benefits, by decision dated March 28, 1994, and OWCP subsequently denied 

modification in a November 29, 1994 decision. When the case was first on appeal, the Board 

found that OWCP properly terminated compensation benefits effective June 27, 1993. The Board 

further found that appellant failed to establish any continuing injury-related residuals or disability 

after June 27, 1993. Accordingly, the Board affirmed both the March 28 and November 29, 1994 

merit decisions.6 

Between July 1997 and April 1998, appellant requested reconsideration on four separate 

occasions. In response to appellant’s various requests, OWCP issued decisions dated July 30 and 

October 15, 1997, and March 10 and May 14, 1998, which either denied modification or denied 

merit review. By decision dated May 18, 2000, the Board found that appellant had not established 

entitlement to compensation after June 27, 1993.7 The Board affirmed OWCP’s July 30, 1997 

 

4 Docket No. 95-0755 (issued June 2, 1997); Docket No. 98-1824 (issued May 18, 2000); Docket No. 03-0168 

(issued March 13, 2003); and Docket No. 03-1866 (issued February 3, 2005).

5 Appellant previously injured his lower back in the performance of duty on January 15, 1980 (OWCP File No. 

xxxxxx656), May 2, 1983 (OWCP File No. xxxxxx285), and November 23, 1983 (OWCP File No. xxxxxx219). In 

each instance, OWCP accepted his claim for either lumbar or lumbosacral strain/sprain. It administratively combined 

the four case records for appellant’s lumbar-related injuries, and designated OWCP File No. xxxxxx783 as the master 

file.

6 Docket No. 95-0755, supra note 4.

7 Docket No. 98-1824, supra note 4.
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merit decision, but set aside a subsequent nonmerit decision finding instead that appellant 

submitted sufficient evidence to warrant further merit review. Therefore, the Board remanded the 

case to OWCP for further merit review.

In three merit decisions dated August 9, and 22, 2000, and January 12, 2001, OWCP denied 

modification of its prior decision(s). By decision dated April 16, 2002, it denied further merit 

review of its January 12, 2001 decision. On August 1, 2002 appellant again requested 

reconsideration of OWCP’s January 12, 2001 merit decision. By decision dated October 3, 2002, 

OWCP denied appellant’s August 1, 2002 request for reconsideration, finding that it was untimely 

filed and failed to demonstrate clear evidence of error. In a March 13, 2003 decision, the Board 

affirmed both the April 16 and October 3, 2002 nonmerit decisions.8

Appellant again requested reconsideration on June 6, 2003, which OWCP denied by 

decision dated July 2, 2003. In a decision dated February 3, 2005, the Board affirmed OWCP’s 

July 2, 2003 nonmerit decision.9

Appellant requested reconsideration in a letter dated July 5, 2016 and received by OWCP 

on July 11, 2016 as recorded in the Integrated Federal Employees’ Compensation System (iFECS). 

With his request, he submitted medical evidence.

A January 26, 2016 right lower extremity electromyography (EMG) and nerve conduction 

velocity (NCV) study revealed abnormalities “possibly suggestive for mild sensory neuropathic 

process on right lower extremity.” There was no evidence of lumbosacral radiculopathy. The 

EMG/NCV report also noted a history of diabetes and that the right thigh paresthesia over the 

anterolateral aspect might indicate for meralgia paresthetica.

A January 28, 2016 lumbar spine magnetic resonance imaging (MRI) scan demonstrated 

endplate spurs anteriorly at L1-2, a one millimeter posterior protrusion at L2-3, mild bilateral 

neural foraminal stenosis at L3-4, mild left neural foraminal stenosis at L4-5, a one millimeter

broad-based posterior protrusion at L5-S1, mild dextroscoliosis of the lumbar spine, and colonic 

diverticulosis. 

In an April 6, 2016 report, Dr. Linda Choe, a Board-certified physiatrist and pain medicine 

specialist, indicated that appellant had been under her care since June 2012 for lumbar spine issues. 

She opined that appellant had “changes in his spine consistent with age.” Dr. Choe asserted that 

the EMG testing performed in 2016 showed no electrophysiological abnormalities, however, there 

was a comment made about clinical presentation of meralgia paresthetica. She reported that she

last saw appellant in February 2016 and an updated MRI scan showed a triangulated canal at L2-3. 

Dr. Choe indicated that on March 1, 2016 she performed a caudal epidural steroid injection 

procedure on appellant.

 

8 Docket No. 03-0168 (issued March 13, 2003).

9 Docket No. 03-1866 (issued February 3, 2005).
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By decision dated October 5, 2016, OWCP denied appellant’s July 11, 2016 request for 

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

LEGAL PRECEDENT

OWCP regulations provide that to be entitled to a merit review of an OWCP decision, an 

application for reconsideration must be received by OWCP within one year of the date of the 

OWCP decision for which review is sought.10 Timeliness is determined by the document receipt 

date of the request for reconsideration as indicated by the “received date” in the iFECS.11 

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. It may consider an untimely application for reconsideration if the evidence or 

argument contained in the reconsideration request demonstrates clear evidence of error on the part 

of OWCP.12 In this regard, OWCP will conduct a limited review of how the newly submitted 

evidence bears on the prior evidence of record.

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 

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.15 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion.16 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.17 

The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP such that it abused its discretion in denying merit 

review in the face of such evidence.18

 

10 20 C.F.R. § 10.607; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.4 (February 2016). 

11 Id. at Chapter 2.1602.4b.

12 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

13 Nelson T. Thompson, 43 ECAB 919 (1992).

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

15 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

16 Leona N. Travis, 43 ECAB 227, 240 (1991).

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

18 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).
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ANALYSIS

The last merit decision of record is dated January 12, 2001, and OWCP received 

appellant’s latest request for reconsideration on July 11, 2016. A request for reconsideration is 

considered timely if received within one year of the date of OWCP’s decision for which review is 

sought.19 As more than 15 years elapsed between OWCP’s January 12, 2001 merit decision and 

appellant’s July 11, 2016 request for reconsideration, the Board finds that OWCP properly 

determined that the request for reconsideration was untimely filed.20 Because appellant’s request 

for reconsideration was untimely filed, he must demonstrate clear evidence of error on the part of 

OWCP in its most recent merit decision.21

OWCP’s January 12, 2001 merit decision denied modification of the termination of 

appellant’s FECA benefits effective June 27, 1993. At that time, it found appellant’s then newly

submitted medical evidence was insufficient to overcome the weight previously afforded

Dr. Grover’s May 28, 1992 second opinion evaluation. In support of his latest, July 11, 2016, 

request for reconsideration, appellant submitted January 2016 diagnostic studies, as well as an 

April 6, 2016 report from Dr. Choe who opined that appellant had “changes in his spine consistent 

with age.” She asserted that EMG testing performed in 2016 showed no electrophysiological 

abnormalities, but also commented about a clinical presentation of meralgia paresthetica. 

Dr. Choe further noted that an updated MRI scan showed a triangulated canal at L2-3. She failed 

to provide a well-rationalized explanation as to how and whether these conditions, which have not 

been accepted by OWCP, are causally related to the January 16, 1985 employment injury.22 Thus, 

the Board finds that this evidence does not demonstrate clear evidence of error because it does not 

show that OWCP committed an error in terminating appellant’s compensation benefits, nor raise 

a substantial question as to the correctness of OWCP’s decision.

The EMG/NCV study dated January 26, 2016 and the MRI scan of the lumbar spine dated 

January 28, 2016 do not constitute competent medical evidence because they do not contain 

rationale by a physician relating appellant’s conditions to his employment.23 Therefore, the Board 

finds that this report does not demonstrate clear evidence of error because it does not show that 

OWCP committed an error in terminating appellant’s compensation benefits, nor raise a substantial 

question as to the correctness of OWCP’s decision.

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. The term clear evidence of error is 

 

19 20 C.F.R. § 10.607(a).

20 Id.; see Alberta Dukes, 56 ECAB 247 (2005).

21 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

22 See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as 

being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally 

related to the employment injury through the submission of rationalized medical evidence).

23 See Paul Foster, 56 ECAB 208, 212 n.12 (2004).
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intended to represent a difficult standard.24 None of the evidence submitted manifests on its face 

that OWCP committed an error in terminating appellant’s compensation benefits. Appellant has 

not otherwise submitted evidence of sufficient probative value to raise a substantial question as to 

the correctness of OWCP’s decision. Thus, the evidence is insufficient to demonstrate clear 

evidence of error.

CONCLUSION

The Board finds that OWCP properly denied appellant’s July 11, 2016 request for 

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

ORDER

IT IS HEREBY ORDERED THAT the October 5, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 1, 2018

Washington, DC

Christopher J. Godfrey, 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

 

24 Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.1602.5.a (February 2016); see Dean D. Beets, 43 

ECAB 1153 (1992).