United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.Y., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Long Beach, CA, Employer 

__________________________________________ 

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Docket No. 16-0487 

Issued: October 18, 2016 

Appearances: Case Submitted on the Record

T.J. Simpson, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 15, 2016 appellant, through his representative, filed a timely appeal of a 

December 24, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).2

 As more than 180 days elapsed since the last merit decision dated November 18, 

 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

 Appellant, through his representative filed a timely request for oral argument. By order dated June 20, 2016, the 

Board denied his request on the grounds that her arguments could be adequately addressed in a decision based on a 

review of the case record. Order Denying Request for Oral Argument, Docket No. 16-0487 (issued June 20, 2016). 
2

2014, pursuant to the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction over the merits of this case.4

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. 

On appeal appellant’s representative asserted that OWCP incorrectly found appellant’s 

request for reconsideration was untimely filed and failed to demonstrate clear evidence of error. 

He further alleged that OWCP had grossly mishandled the medical evidence and failed to 

properly docket his case file. 

FACTUAL HISTORY 

On January 19, 2011 appellant, then a 33-year-old contract specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on January 17, 2011 he sustained medical conditions due 

to his employment. He also filed an occupational disease claim (Form CA-2) on January 19, 

2011 alleging that on January 19, 2011 he first became aware of a medical condition which had 

been caused or aggravated by his employment.5

 

On March 11, 2013 OWCP received an undated report from Dr. Ahn diagnosing bilateral 

carpal tunnel syndrome, right de Quervain’s tenosynovitis, and right thumb and middle trigger 

fingers. Dr. Ahn attributed the conditions to appellant’s repetitive work duties of computer 

keyboard entry, typing, and repetitive upper extremity use. He noted that repetitive keyboard use 

was consistent with appellant’s type of injury. 

On January 22, 2014 OWCP accepted the conditions of bilateral carpal tunnel syndrome, 

right and middle finger trigger fingers, and de Quervain’s tenosynovitis. 

On February 26, 2014 appellant filed a claim for wage-loss compensation (Form CA-7) 

for the period January 19, 2011 through February 28, 2014. 

 3

 5 U.S.C. § 8101 et seq. 

4

 The Board notes that, following the December 24, 2015 nonmerit decision, OWCP received additional evidence. 

However, the Board may only review evidence that was in the record at the time OWCP issued its final decision. 

See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); 

G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 

5

 On September 14, 2012 OWCP received a Form CA-2 from appellant alleging an emotional injury due to 

harassment and retaliation for filing an appeal with the Merit Protection Systems Board. Appellant stated that on 

September 12, 2012 he first became aware that his condition had been caused or aggravated by his employment. On 

October 22, 2012 OWCP received three occupational disease claims (Form CA-2) from appellant alleging that an 

emotional condition and right trigger finger had been caused by his employment. On January 3, 2013 OWCP 

received additional CA-2 forms from appellant alleging that on January 19, 2011 he first realized his emotional 

condition was due to employment factors. 
3

In an April 28, 2014 report, Dr. Ahn opined that appellant has been totally disabled from 

working since January 19, 2011. 

On May 12, 2014 OWCP received an undated report from Dr. Sahgal in which he opined 

that appellant was totally disabled from working. Dr. Sahgal observed that appellant’s carpal 

tunnel condition aggravated his emotional conditions as he was unable to perform the duties of 

his position prior to his injury. 

On May 20, 2014 OWCP received an undated report from Dr. Mehta diagnosing carpal 

tunnel syndrome and emotional conditions due to his employment. Dr. Mehta reported that 

appellant was disabled from working beginning January 19, 2011 due to his employment-related 

physical and emotional conditions. 

By decision dated July 31, 2014, OWCP denied appellant’s claim for wage-loss 

compensation for the period January 19, 2011 through February 28, 2014. 

In an August 8, 2014 report, Dr. Ahn reported that appellant has been totally disabled 

from working for the past three years due to his accepted orthopedic conditions. He described 

the treatment that appellant has been given and opined that, due to impact on his sensory and 

motor nerves, appellant is unable to perform the duties of his position. 

In an August 8, 2014 report, Dr. Nader Armanious, a Board-certified neurologist, 

reviewed the medical evidence and noted the accepted conditions were bilateral carpal tunnel 

syndrome, right and middle trigger fingers, and radial styloid tenosynovitis. He concluded that 

there was no doubt that appellant sustained wage loss due to the accepted employment conditions 

and should be granted wage-loss compensation. 

On August 13, 2014 OWCP received an undated report from Dr. Ahn opining that 

appellant continued to be disabled from performing his job as a contract specialist and has been 

disabled since January 2011. 

On September 12, 2014 OWCP received an undated report from Dr. Sahgal attributing 

the conditions of major depression, anxiety disorder, and panic disorder to appellant’s 

employment and provided a description of appellant’s duties. Dr. Sahgal opined that appellant 

was rendered totally disabled by his employment-related emotional condition. 

By decision dated November 18, 2014, OWCP denied modification. It found the 

evidence insufficient to establish that appellant was entitled to wage-loss compensation for the 

period January 19, 2011 to February 28, 2014 for the accepted carpal tunnel condition. 

In a letter dated February 2, 2015, appellant’s representative requested reconsideration on 

the denial of his claim for lost compensation. 

On February 3, 2015 OWCP received an undated report from Dr. Sahgal. Dr. Sahgal 

noted that OWCP had accepted the conditions of bilateral carpal tunnel syndrome, right 

de Quervain’s tenosynovitis, and right thumb and middle trigger fingers. He opined that his 

prior reports support that appellant’s emotional condition was a direct result of his employment 
4

duties. Dr. Sahgal noted that appellant had a history of being harassed at work and that 

accommodations were not made for the disruption of his work by his carpal tunnel condition. 

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

of the November 18, 2014 decision without reviewing the merits. 

On August 11, 2015 OWCP received appellant’s representative request for 

reconsideration of the November 18, 2014 decision denying wage-loss compensation. 

Appellant’s representative contended that OWCP erred in its analysis of causal relationship and 

the denial of appellant’s claim for wage-loss compensation. He further contended that appellant 

was entitled to wage-loss compensation and placement on the periodic rolls for temporary total 

disability. 

By decision dated November 6, 2015, OWCP denied reconsideration of the 

November 18, 2014 decision without reviewing the merits. 

On November 19, 2015 OWCP received a letter dated November 12, 2015 from 

appellant’s representative requesting reconsideration. Appellant’s representative argued that 

OWCP has misinterpreted FECA statute in denying appellant wage-loss compensation for his 

accepted condition and that appellant should be compensated for his wage-loss and/or placed on 

the periodic rolls for temporary total disability. He argued that the medical evidence submitted 

established that appellant’s disability was causally related to the accepted work condition. In 

support of his request, appellant submitted medical evidence as set forth below. 

In an October 26, 2015 report, Dr. Armanious reviewed the medical evidence and noted 

the accepted conditions were bilateral carpal tunnel syndrome, right and middle trigger fingers, 

and radial styloid tenosynovitis. He concluded that there was no doubt that appellant sustained 

wage loss due to the accepted employment conditions and should be granted wage-loss 

compensation. 

In an August 21, 2015 report, Dr. Ahn opined that appellant was totally disabled due to 

the conditions accepted by OWCP. He provided results from an electromyography (EMG) 

study, described appellant’s duties, and the lack of an accommodation by the employing 

establishment. 

Dr. Wen, in a November 2, 2015 report, reiterated his opinion that appellant was totally 

disabled. 

On December 23, 2015 OWCP received appellant’s representative reconsideration 

request dated November 26, 2015 noting that he had previously requested reconsideration in a 

letter dated November 12, 2015. Appellant’s representative argued that the medical evidence 

submitted was sufficient to warrant wage-loss compensation and placement on the periodic rolls 

for temporary total disability. 
5

By decision dated December 24, 2015, OWCP denied appellant’s claim as it found the 

request to be untimely filed and failed to establish clear evidence of error.6

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.7

 

The Board has found that the imposition of the one-year time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.8

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

was untimely filed. When an application for review is untimely filed, it must nevertheless 

undertake a limited review to determine whether the application demonstrates clear evidence of 

error.9 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if 

the claimant’s application for review demonstrates clear evidence of error on the part of 

OWCP.10

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

issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.12 Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to 

demonstrate clear evidence of error.13 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.14 This entails a limited review by OWCP of 

how the evidence submitted with the reconsideration request bears on the evidence previously of 

 6

 The Board also notes that OWCP has not responded to counsel’s outstanding request for reconsideration on the 

denial of appellant’s emotional condition claim. Lacking a final decision by OWCP, that issue is therefore not 

before the Board. See 20 C.F.R. § 501.2(c). 

7

 20 C.F.R. § 10.607(a). 

8

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

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

10 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(c) 

(October 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for 

example, proof that a schedule award was miscalculated). Evidence such as a detailed well-rationalized medical 

report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error. Id. at Chapter 2.1602.5(a). 

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

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

13 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

14 See supra note 12. 
6

record and whether the new evidence demonstrates clear error on the part of OWCP.15 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 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.16

OWCP procedures were changed effective August 29, 2011. Section 10.607 of the new 

regulations provide that the date of the reconsideration request for timeliness purposes was 

changed from the date the request was mailed to the date the request was received by OWCP.17

ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

application for review. As noted above, an application for reconsideration must be received 

within one year of the date of OWCP’s decision for which review is sought.18 As appellant’s 

request for reconsideration was not received by OWCP until November 19, 2015, more than one 

year after issuance of the most recent merit decision dated November 18, 2014, it was untimely. 

Consequently, he must demonstrate clear evidence of error by OWCP in its decision finding that 

he was not entitled to wage-loss compensation for his accepted bilateral carpal tunnel condition, 

right and middle finger trigger fingers, and de Quervain’s tenosynovitis.19

In accordance with internal guidelines and Board precedent, OWCP properly proceeded 

to perform a limited review to determine whether appellant’s application for review 

demonstrated clear evidence of error, which would warrant reopening his case for merit review 

under section 8128(a) of FECA, notwithstanding the untimeliness of his application. It reviewed 

the evidence submitted in support of his application for review, but found that it did not 

demonstrate that OWCP’s prior decisions were in error. 

The Board finds that the evidence submitted by appellant in support of his application for 

review does not raise a substantial question as to the correctness of OWCP’s decision and is 

insufficient to demonstrate clear evidence of error. The underlying issue is wage-loss 

compensation due to his accepted bilateral carpal tunnel condition, right and middle finger 

trigger fingers, and de Quervain’s tenosynovitis. 

The medical evidence submitted included reports from Dr. Armanious, Dr. Ahn, and 

Dr. Wen. In his October 26, 2015 report, Dr. Armanious noted the accepted conditions and 

opined that appellant should be granted wage-loss compensation due to the accepted conditions. 

Dr. Ahn, in his August 21, 2015 report, reiterated his opinion that appellant was totally disabled 

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

16 Leon D. Faidley, Jr., supra note 8. 

17 20 C.F.R. § 10.607. 

18 Id. at § 10.607(a). 

19 Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 
7

due to the accepted conditions. In a November 2, 2015 report, Dr. Wen reiterated that 

appellant’s emotional condition was employment related and that he was totally disabled. 

Dr. Wen’s report does not find that appellant was totally disabled due to the accepted condition. 

The reports from Drs. Armanious and Dr. Ahn are duplicative of prior reports submitted.20 The 

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

present evidence which on its face shows that OWCP made an error (for example, proof of a 

miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which 

if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error and would not require a review of a case.21 

Appellant has not, through the reports from Dr. Ahn, Dr. Armanious, and Dr. Wen, and 

as required by 20 C.F.R. § 10.607(b), demonstrated clear evidence of error on the part of OWCP 

in finding that he was entitled to wage-loss compensation for the period January 19, 2011 

through February 28, 2014. His request for reconsideration does not establish on its face that 

OWCP’s November 18, 2014 merit decision was erroneous. Therefore, the Board finds that 

appellant has not demonstrated clear evidence of error in OWCP’s finding that he failed to 

establish entitlement to wage-loss compensation for the period January 19, 2011 through 

February 28, 2014. 

The Board finds that OWCP properly denied appellant’s reconsideration request as it was 

untimely filed and failed to demonstrate clear evidence of error. 

On appeal, appellant’s representative asserts that OWCP has lost and misplaced medical 

evidence. He also asserts that the evidence of record establishes appellant’s entitlement to wageloss compensation for the accepted carpal tunnel condition. However, as noted, the Board does 

not have jurisdiction over the merits of the claim. In addition, appellant’s representative repeated 

his reconsideration arguments on appeal. As noted above, these arguments are insufficient to 

demonstrate clear evidence of error. 

CONCLUSION 

The Board finds that appellant’s application for reconsideration was untimely filed and 

failed to show clear evidence of error. 

 20 See A.F., Docket No. 11-1297 (issued December 20, 2011); D.K., 59 ECAB 141 (2007) (evidence which 

repeats or duplicates evidence already in the case record does not constitute a basis for reopening a case). 

21 J.S., Docket No. 10-385 (issued September 15, 2010); James R. Mirra, 56 ECAB 738 (2005); Annie L. 

Billingsley, 50 ECAB 210 (1998). 
8

ORDER 

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

Compensation Programs dated December 24, 2015 is affirmed. 

Issued: October 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board