United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jersey City, NJ, Employer 

__________________________________________ 

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Docket No. 17-0157 

Issued: April 24, 2017 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., 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 October 31, 2016 appellant, through counsel, filed a timely appeal from an August 25, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days have elapsed since the last merit decision, dated September 26, 2008, 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 over the merits of this case. 

 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 found appellant’s reconsideration request was 

untimely filed and failed to demonstrate clear evidence of error. 

FACTUAL HISTORY 

On January 14, 2005 appellant, then a 50-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right knee in the performance of duty on 

January 4, 2005, when her right leg buckled. OWCP accepted the claim for contusion and 

sprain/strain of the right knee and leg. Appellant stopped work and received wage-loss 

compensation commencing February 22, 2005. 

In addition to the present case, the record indicates that appellant had five prior claims. 

The claims are: (1) a December 15, 1988 claim accepted for neck and right shoulder sprain 

OWCP File No. xxxxxx989; (2) a June 24, 1993 claim accepted for left shoulder and arm strain 

while delivering mail OWCP File No. xxxxxx409; (3) a June 5, 1996 slip on ice, accepted for 

right elbow and right shoulder sprain, and cervical myalgia OWCP File No. xxxxxx963; (4) a 

March 2, 2001 claim accepted for left carpal tunnel syndrome OWCP File No. xxxxxx447; and 

(5) a July 31, 2001 claim accepted for right shoulder sprain OWCP File No. xxxxxx868. 

On May 14, 2008 OWCP referred appellant for a second opinion examination with 

Dr. Jeffrey Larkin, a Board-certified orthopedic surgeon. Dr. Larkin was provided with the 

statement of accepted facts (SOAF) for the current and prior claims. 

In a report dated June 17, 2008, Dr. Larkin provided a history, review of medical records, 

and results on examination. He diagnosed cervical spondylosis, most pronounced at C6-7, with 

bilateral neuroforaminal encroachment present at C5-6 and changes of degenerative disc disease 

most pronounced at C6-7. Dr. Larkin opined that all the work-related conditions had resolved. 

He reported that appellant had restriction of motion of the cervical spine and pain that radiated 

into the upper extremities to the shoulders, but the present symptomology was due to underlying 

degenerative disease, not a work-related condition. 

In a letter dated August 26, 2008, OWCP advised appellant that it proposed to terminate 

compensation based on the June 17, 2008 report from Dr. Larkin. It listed the current claim 

number as well as the five claims noted above. By decision dated September 26, 2008, OWCP 

terminated compensation for wage-loss and medical benefits effective September 28, 2008, as it 

found the weight of the evidence was represented by Dr. Larkin. 

On August 22, 2016 appellant, through counsel, requested reconsideration. He argued 

that Dr. Larkin had found cervical degenerative disc disease was a preexisting condition, without 

providing rationale. Counsel asserted that Dr. Larkin had failed to refer to schedule awards for 

permanent impairment of the upper extremities that were noted in the SOAF. He therefore 

concluded that Dr. Larkin’s report was incomplete and clearly erroneous. 
3

By decision dated August 25, 2016, OWCP found that the reconsideration request was 

untimely filed. In addition, it found that appellant had failed to demonstrate clear evidence of 

error and was therefore not entitled to a merit decision. 

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.3

 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.”4

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.5

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.6

 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA.7

 As one such limitation, an application for reconsideration must be mailed 

within one year of the date of OWCP’s decision for which review is sought.8 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. 

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

issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.10 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.11 

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

decision is insufficient to establish clear evidence of error.12 It is not enough merely to show that 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.605 (2012). 

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

6

 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.” 

7

 5 U.S.C. §§ 8101-8193. 

8

 For decisions before August 29, 2011, a claimant had one year to mail a reconsideration request. Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). 20 C.F.R. 

§ 10.607 (2012). 

9 Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

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

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

12 Jimmy L. Day, 48 ECAB 652 (1997). 
4

the evidence could be construed so as to produce a contrary conclusion.13 A determination of 

whether the claimant has established clear evidence of error entails a limited review of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record.14

ANALYSIS 

The last merit decision in this claim was dated September 26, 2008. In that decision, 

OWCP terminated compensation for wage-loss and medical benefits. Appellant’s request for 

reconsideration was dated August 22, 2016. Since this is more than one year after the 

September 26, 2008 decision, it was untimely filed. As an untimely reconsideration request, 

appellant must demonstrate clear evidence of error by OWCP in order to receive a merit review 

of the claim. 

Appellant did not submit additional evidence in support of the reconsideration request. 

Counsel argued that Dr. Larkin’s report was of diminished probative value and insufficient to 

terminate compensation. He asserted that Dr. Larkin failed to explain why he opined that the 

cervical degenerative condition was preexisting, since appellant had prior accepted cervical 

injuries, including a 1996 injury. Dr. Larkin was provided a detailed medical and factual 

background which correctly noted that OWCP has never accepted a cervical degenerative 

condition as employment related. As noted above, even if the evidence could be construed to 

reach a different conclusion, this is not clear evidence of error.15 Counsel also refers to prior 

schedule awards not mentioned by Dr. Larkin. The issue presented was not for a rating of 

permanent impairment. Dr. Larkin was provided a proper background and opined in his June 17, 

2008 report that appellant did not have residuals of a condition causally related to the accepted 

January 4, 2005 employment injury. 

The arguments provided on reconsideration fail to demonstrate clear evidence of error.16 

The Board accordingly finds that OWCP properly denied merit review of the claim. 

On appeal, counsel reiterates the argument that Dr. Larkin’s report was not well 

rationalized and was insufficient to terminate compensation. The issue presented was whether 

appellant demonstrated clear evidence of error and, for the reasons discussed, appellant has 

failed to demonstrate clear evidence of error in this case. 

CONCLUSION 

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

untimely and failed to show clear evidence of error. 

 13 Id. 

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

15 Supra note 12. 

16 See S.G., Docket No. 14-1893 (issued January 7, 2015); see also G.C., Docket No. 16-0681 (issued 

October 18, 2016). 
5

ORDER 

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

Compensation Programs dated August 25, 2016 is affirmed. 

Issued: April 24, 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