States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

AGRICULTURE RESEARCH SERVICE, 

Beltsville, MD, Employer 

__________________________________________ 

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Docket No. 15-0918 

Issued: August 12, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 17, 2015 appellant filed a timely appeal from an Office of Workers’ 

Compensation Programs’ (OWCP) nonmerit decision dated February 12, 2015. Because more 

than 180 days has elapsed between the last merit decision dated February 3, 2014 and the filing 

of this appeal on March 17, 2015, the Board lacks jurisdiction to review the merits of appellant’s 

claim pursuant to 20 C.F.R. §§ 501.2 and 501.3. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

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

Appellant, a 50-year-old temporary tractor operator, injured his lower back on April 12, 

1991 when he jumped from a tractor. He filed a claim for traumatic injury (Form CA-1) on 

April 15, 1991, which OWCP accepted for lumbar sprain with radiculopathy. 

In a report dated May 20, 1991, it was indicated that appellant underwent a magnetic 

resonance imaging (MRI) scan of the lumbar spine, the results of which showed that he had 

degenerative disc disease at L3-4, L4-5, and L5-S1. 

Appellant has not worked since September 19, 1991. OWCP commenced payment of 

compensation for temporary total disability and placed him on the periodic rolls effective 

September 19, 1991. 

In a letter to OWCP dated July 28, 1999, appellant requested that his claim be expanded 

to include neck, left shoulder, left hand, left knee, and left leg conditions. 

In a report dated August 12, 1999, Dr. Robert S. Viener, a Board-certified orthopedic 

surgeon, stated that appellant underwent an MRI scan for his neck and shoulder, in addition to 

electromyogram (EMG) and nerve conduction velocity (NCV) studies of the upper and lower 

extremities. He advised that the results of these diagnostic tests were consistent with 

degenerative change at multiple levels of the cervical spine in addition to rotator cuff tear in his 

left shoulder. The EMG study was consistent with carpal tunnel syndrome on the left and 

possible tarsal tunnel syndrome on the left. Dr. Viener recommended that appellant undergo left 

carpal tunnel release surgery and epidural injections to his lower back. 

To determine whether appellant was still disabled and still had residuals from his 

accepted condition, OWCP referred him to Dr. John B. Cohen, a Board-certified orthopedic 

surgeon for a second opinion examination. In an August 27, 1999 report, Dr. Cohen stated that 

appellant’s degenerative lumbar disc disease, as shown by MRI scan, was not causally related to 

the April 12, 1991 work injury. He opined that appellant could work light-duty full time in 

regard to his left shoulder rotator cuff condition. Dr. Cohen stated that appellant’s claimed 

cervical spine, carpal tunnel, left tarsal tunnel, and left shoulder conditions were not medically 

related to the April 12, 1991 injury. 

OWCP found that a conflict existed between the opinions of Drs. Viener and Cohen as to 

whether appellant’s claimed conditions were causally related to the April 12, 1991 employment 

injury. It referred appellant to Dr. Melinda Gardner, Board-certified in orthopedic surgery, for a 

referee medical examination. In a report dated January 12, 2000, Dr. Gardner found that his 

claimed conditions of cervical degenerative disc disease, carpal tunnel syndrome, left rotator cuff 

tear, and left tarsal tunnel syndrome were not causally related to the April 12, 1991 employment 

injury. She opined that appellant could work limited duty for eight hours per day. 

By decision dated February 22, 2000, OWCP denied expansion of the claim for the 

conditions of cervical spine degenerative changes, left carpal tunnel syndrome, left tarsal tunnel 

syndrome, and left rotator cuff tear. 
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In a report dated September 23, 2008, Dr. Viener diagnosed a herniated disc at L5-S1 

based on the May 20, 1991 MRI scan. He stated that appellant also had lumbar radiculopathy at 

L5 on the left side, in addition to lumbar stenosis. Dr. Viener opined that appellant continued to 

be totally disabled secondary to the April 12, 1991 employment injury. He asserted that the 

findings from his current examination, x-ray tests and his previous MRI scan and EMG/NCV 

tests confirmed his diagnosis and opinion. 

To determine whether appellant still had residuals from his accepted April 12, 1991 work 

injury and whether his claimed lumbar degenerative disc disease was causally related to the 

April 1991 injury, he was referred to Dr. Robert F. Draper, Board-certified in orthopedic surgeon 

for a second opinion examination. In a November 16, 2012 report, after stating findings on 

examination and reviewing the medical history and the statement of accepted facts, Dr. Draper 

concluded that appellant’s lumbar and cervical degenerative disc disease were preexisting and 

were not causally related to the April 12, 1991 work injury. He opined that appellant did not 

have any additional pathology in the lumbar spine. Dr. Draper advised that appellant sustained a 

lumbosacral strain in 1991, which should have lasted six months at most. He asserted that 

appellant’s continued lower back problems were not due to the 1991 low back strain, but were 

attributable to the degenerative disc disease and spinal stenosis at L3-4, L4-5, and L5-Sl, as 

documented in the May 20, 1991 lumbar MRI scan. Dr. Draper opined that the etiology of 

appellant’s present conditions was due to his nonwork-related lumbar degenerative disc disease 

at multiple levels, and his spinal stenosis. He advised that his accepted conditions of 

lumbosacral strain and radiculopathy would not prevent him from working; he would be capable 

of returning to work for eight hours per day with restrictions of no lifting more than 20 pounds 

occasionally and 10 pounds frequently; no standing for more than two hours; and no sitting for 

more than six hours. 

On April 22, 2013 OWCP denied expansion of the claim for a left knee condition. 

OWCP issued a notice of proposed termination of compensation to appellant on 

May 30, 2013. It found that the weight of the medical evidence, as represented by Dr. Draper’s 

referral report, established that appellant was no longer disabled due to his accepted April 12, 

1991 injury. 

By decision dated July 2, 2013, OWCP terminated appellant’s compensation for medical 

benefits, finding that Dr. Draper’s referral opinion represented the weight of the medical 

evidence. 

On July 25, 2013 appellant requested an oral hearing, which was held on 

December 9, 2013. 

By decision dated February 3, 2014, an OWCP hearing representative affirmed the 

July 2, 2013 termination decision. 

By letter dated April 13, 2014, appellant requested reconsideration of the February 3, 

2014 termination decision. 

In an April 16, 2014 report, Dr. Eric G. Dawson, a specialist in orthopedic surgery, stated 

that the results of a lumbar MRI scan taken six months previously showed that appellant had 
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lumbar disc protrusion or herniated nucleus pulposus at the L5-S1 paramedian level. He advised 

that appellant had multiple signs of osteoarthritic changes at multiples levels, including the discs, 

and the facets; the tests showed that he also had spondylolysis and spondylolisthesis. 

Dr. Dawson advised that appellant had continuing disc problems at multiple joints, particularly at 

the L3-4, L4-5, and L5-S1 levels. He asserted that these findings displayed an accelerated curve 

of degenerative changes in the lumbar spine and disc. 

By decision dated April 27, 2014, OWCP denied appellant’s request for reconsideration, 

finding that it neither raised substantive legal questions, nor included new and relevant evidence 

sufficient to require OWCP to review its prior decision. 

In a May 9, 2014 report, Dr. Dawson essentially reiterated his previous findings and 

conclusions. 

By letter dated May 13, 2014, appellant again requested reconsideration. He submitted 

reports dated June 5 and July 17, 2014 from Dr. Dawson in which he essentially reiterated his 

previous findings and conclusions. 

By decision dated September 23, 2014, OWCP denied appellant’s request for 

reconsideration, finding that it neither raised substantive legal questions, nor included new and 

relevant evidence sufficient to require OWCP to review its prior decision. 

By letter dated January 16, 2015, received by OWCP on January 21, 2015 appellant’s 

counsel at the time requested reconsideration. He submitted reports dated October 29 and 

December 3, 2014, and January 17, 2015 from Dr. Dawson in which he essentially reiterated his 

previous findings and conclusions. 

In his December 3, 2014 report, Dr. Dawson stated that it had been “essentially proven” 

by the MRI scan results and nerve studies that appellant had lumbar disc and nerve impingement. 

He noted that there was sufficient concern regarding appellant’s lower back condition that 

Dr. Viener scheduled appellant for an MRI scan on May 20, 1991 one month subsequent to his 

April 12, 1991 injury, which showed a herniated nucleus pulposus at L5-S1 with possible free 

fragment. Dr. Dawson also noted that medical records showed that by 1993 appellant had 

sustained a chronic lumbar sprain with lumbar radiculopathy; he opined that this was significant 

given that appellant had not sustained any additional lumbar injuries. He concluded that based 

on these findings the accepted condition was not correct at the time and his symptoms were 

incorrectly attributed to a preexisting, degenerative condition, when in fact they were indicative 

of conditions that were much more extensive. 

In his January 17, 2015 report, Dr. Dawson reiterated that appellant’s medical reports and 

records described his lumbar conditions as a herniated nucleus pulposus and lumbar disc and 

nerve impingement with radiculopathy. He advised that although his medical reports and 

diagnostic records contemporaneous with appellant’s original 1991 injury were lacking, he 

believed that they would have documented that the conditions appellant has today were 

“indisputably” the same conditions he sustained in his April 12, 1991 workplace fall. 

Dr. Dawson reiterated that appellant sustained a very significant back injury -- more than a strain 

or sprain -- the seriousness of which became obvious within a month with the May 20, 1991 MRI 
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scan. He stated that appellant had sustained a mechanical injury of the disc and nerve 

impingement which occurred on April 12, 1991 and continues to this day. 

By letter dated February 5, 2015, appellant’s counsel stated that he had erred in his 

previous letter by referring to the date of May 3, 2012 as the date of OWCP’s proposed notice of 

termination and as the date of the decision for which he was requesting reconsideration. Counsel 

clarified that he was requesting reconsideration of OWCP’s most recent merit decision, which 

was issued on February 3, 2014. He asserted that the request was timely as it was received by 

OWCP on January 20, 2015. 

By decision dated February 12, 2015, OWCP denied appellant’s request for 

reconsideration finding appellant’s request for reconsideration was untimely and failed to 

demonstrate clear evidence of error. It stated: “The basis for this decision is that your legal 

representative states in his letter dated February 5, 2015 that he is requesting reconsideration ... 

regarding [the] proposed notice of [termination] dated May 30, 2013.” 

LEGAL PRECEDENT 

Section 8128(a) of the Federal Employees’ Compensation Act1

 does not entitle an 

employee to a review of an OWCP decision as a matter of right.2 This section, vesting OWCP 

with discretionary authority to determine whether it will review an award for or against 

compensation, provides: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may-- 

(1) end, or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.” 

OWCP, through its regulations, has imposed limitations on the exercise of its 

discretionary authority under 5 U.S.C. § 8128(a).3

 As one such limitation, it has stated that it 

will not review a decision denying or terminating a benefit unless the application for review is 

filed within one year of the date of that decision.4 The Board has found that the imposition of 

 1

 5 U.S.C. § 8128(a). 

2 Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989); petition for recon., denied, 

41 ECAB 458 (1990). 

3

 Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against 

payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by: 

(1) showing that OWCP erroneously applied or interpreted a point of law; (2) advances a relevant legal argument 

not previously considered by OWCP; or (3) constituting relevant and pertinent new evidence not previously 

considered by OWCP. See 20 C.F.R. § 10.606(b). 

4 Id. at § 10.607(a). 
6

this one-year time limitation does not constitute an abuse of the discretionary authority granted 

by OWCP granted under 5 U.S.C. § 8128(a).5

ANALYSIS 

OWCP improperly determined in this case that appellant failed to file a timely 

application for review. The last merit decision in this case was dated February 3, 2014. 

Appellant’s request for reconsideration was received by OWCP on January 21, 2015. 

In the February 3, 2014 decision, an OWCP hearing representative affirmed OWCP’s 

July 2, 2013 termination decision. The appeal rights accompanying that decision advised 

appellant that he could request reconsideration with OWCP within one year of the decision, if the 

request was received by OWCP within one year of the decision, or file an appeal with the Board 

within 180 days. Counsel clearly requested reconsideration in his January 16, 2015 letter, 

received on January 21, 2015, but inadvertently referred to OWCP’s initial notice of proposed 

termination as the decision for which he was requesting reconsideration in the letter; however, he 

clarified in his February 5, 2015 follow-up letter that he was requesting reconsideration of the 

February 3, 2014 merit decision of the OWCP hearing representative. As the January 21, 2015 

letter was received within one year of that decision, the request therefore cannot be found 

untimely pursuant to sections 10.607(a) and 10.606(b)(3) of OWCP’s regulations.6

 The clear 

evidence of error standard utilized by OWCP in its February 12, 2015 decision is appropriate 

only for untimely reconsideration requests.7

 The case will be remanded for OWCP to further 

review appellant’s January 21, 2015 reconsideration request in accordance with its regulations 

and procedures. 

CONCLUSION 

The Board finds that OWCP erred in finding appellant’s January 21, 2015 

reconsideration request untimely filed. 

 5 See cases cited supra note 2. 

6 See 20 C.F.R. § 10.607(b)(3) and supra note 4. 

7 See R.M., Docket No. 14-625 (issued July 29, 2014). 
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ORDER 

IT IS HEREBY ORDERED THAT the February 12, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: August 12, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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