United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

DEPARTMENT OF LABOR, MINE SAFETY & 

HEALTH ADMINISTRATION, 

Mount Hope, WV, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0453 

Issued: April 10, 2017 

Appearances: Case Submitted on the Record

P. Heith Reynolds, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 28, 2016 appellant, through counsel, filed a timely appeal from a 

December 2, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last merit decision, dated September 22, 

2015, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

 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

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this 

case.3

ISSUE 

The issue is whether OWCP properly denied appellant’s September 23, 2016 request for 

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

FACTUAL HISTORY 

Appellant, a 65-year-old former mine safety and health specialist (special investigator), 

has an accepted occupational disease claim (Form CA-2) for coal workers’ pneumoconiosis, 

which arose on or about August 9, 2013. He retired effective November 1, 2013. On August 14, 

2014 appellant filed a claim for a schedule award (Form CA-7). 

In a September 17, 2014 letter, OWCP advised appellant of the need to have his 

physician submit an impairment rating in accordance with the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., 

Guides) (2009). 

In response on October 21, 2014, appellant submitted an October 15, 2014 report from 

Dr. Dan Doyle, a Board-certified family practitioner, who opined that based on the A.M.A., 

Guides, appellant had 20 percent whole person impairment due to his occupational 

pneumoconiosis.4 

On February 23, 2015 OWCP’s district medical adviser (DMA) reviewed Dr. Doyle’s 

October 15, 2014 report and found that his impairment rating was unacceptable for schedule 

award purposes. He questioned the reliability of the August 9, 2013 PFS upon which Dr. Doyle 

relied. The DMA recommended that OWCP refer appellant for a second opinion evaluation. 

In a July 30, 2015 report, Dr. Dominic J. Gaziano, a Board-certified pulmonologist and 

OWCP referral physician, diagnosed coal workers’ pneumoconiosis and found 10 percent whole 

person impairment under Table 5-4, Pulmonary Dysfunction, A.M.A., Guides 88 (6th ed., 2009).5

 

In an August 20, 2015 report, the DMA disagreed with Dr. Gaziano’s 10 percent whole 

person impairment rating. He noted that Dr. Gaziano offered no explanation for assigning the 

“E” grade rating of 10 percent under Table 5-4.6 The DMA further noted that Dr. Gaziano 

 3

 Counsel submitted additional evidence on appeal that was not part of the record when OWCP issued its 

December 2, 2016 decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at 

the time of its final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. 

§ 501.2(c)(1). 

4

 Dr. Doyle referenced the results of appellant’s August 9, 2013 pulmonary function study (PFS), but he did not 

otherwise explain how the reported values represented 20 percent whole person impairment under the latest edition 

of the A.M.A., Guides. 

5

 As part of his July 23, 2015 examination, Dr. Gaziano obtained a new chest x-ray and PFS. 

6

 The default rating (“C”) for class 1 whole person impairment due to pulmonary dysfunction was six percent. 
3

provided no input regarding grade modifiers. Based on information gleaned from Dr. Gaziano’s 

July 30, 2015 second opinion report, the DMA assigned a grade modifier of 1 for functional 

history and a grade modifier of 0 for physical examination.7 Applying the net adjustment 

formula resulted in a -1 adjustment, which reduced the default (“C”) rating of six percent to four 

percent (“B”). Consequently, the DMA found four percent whole person permanent impairment 

for each lung. 

By decision dated September 22, 2015, OWCP granted a schedule award for four percent 

permanent impairment of the right lung and four percent permanent impairment of the left lung. 

The award ran for 12.48 weeks for the period July 23 to October 18, 2015. 

Appellant requested reconsideration on September 23, 2016. 

Since issuing its September 22, 2015 schedule award, OWCP received January 28 and 

May 5, 2016 progress notes from Dr. Syed A. Zahir, a Board-certified orthopedic surgeon, who 

treated appellant for a right knee condition. Dr. Zahir’s clinical impression was right knee 

internal derangement, right knee degenerative arthritis, neuropathy, and diabetes mellitus. 

OWCP also received a June 23, 2016 chest computerized tomography (CT) scan, which revealed 

nodular thickening at the right minor fissure and no evidence of interstitial pulmonary fibrosis. 

By decision dated December 2, 2016, OWCP denied appellant’s request for 

reconsideration on the basis that it was untimely filed and failed to demonstrate clear evidence of 

error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.8 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.9 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.10 OWCP will consider an untimely request for reconsideration only if the request 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.11 

 7

 The DMA further explained that assigning a grade modifier for clinical studies was inappropriate because the 

latest PFS formed the basis for the class 1 Class of Diagnosis designation. 

8

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 

9

 20 C.F.R. § 10.607. 

10 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt 

date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees’ 

Compensation System (iFECS). Id. at Chapter 2.1602.4b. 

11 20 C.F.R. § 10.607(b). 
4

The request must establish on its face that such decision was erroneous.12 Where a request is 

untimely and fails to present any clear evidence of error, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.13

ANALYSIS 

The latest merit decision is dated September 22, 2015. In that decision, OWCP granted 

appellant a schedule award for four percent permanent impairment of each lung, for a total of 

12.48 weeks’ compensation.14 Appellant had until September 21, 2016 to timely file for 

reconsideration. However, OWCP did not receive her request for reconsideration until 

September 23, 2016. Consequently, the request for reconsideration was untimely pursuant to 20 

C.F.R. § 10.607(a). As such, appellant must demonstrate clear evidence of error with respect to 

OWCP’s September 22, 2015 schedule award decision.15

Appellant submitted the appeal request form that accompanied OWCP’s September 22, 

2015 decision. She did not submit any evidence or argument with her request for 

reconsideration. Since its last decision, OWCP received medical evidence from Dr. Zahir; 

however, his January 28 and May 5, 2016 progress notes pertain to a knee condition and not the 

accepted pulmonary condition. In fact, Dr. Zahir did not even mention a history of coal workers’ 

pneumoconiosis. Consequently, this evidence is irrelevant to the issue of whether appellant has 

greater than four percent impairment of each lung, and therefore, it is insufficient to demonstrate 

clear evidence of error.16 His June 23, 2016 chest CT scan is similarly insufficient to 

demonstrate clear evidence of error because the diagnostic study does not specifically address 

the extent of any pulmonary impairment. Thus, the Board finds that Dr. Zahir’s progress notes 

and the June 23, 2016 chest CT scan do not demonstrate clear evidence of error as they do not 

show that OWCP committed an error in determining appellant’s entitlement to a schedule award, 

nor do they 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 intended to represent a difficult standard.17 None of the evidence submitted manifests on 

 12 Id. To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue that was 

decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit 

and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is 

not enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that 

does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate 

clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of 

sufficient probative value to create a conflict in medical opinion or demonstrate 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. Thankamma Mathews, 44 ECAB 765, 770 (1993). 

13 20 C.F.R. § 10.608(b). 

14 Compensation for total loss of use of one lung is 156 weeks. 20 C.F.R. § 10.404(b). 

15 Supra note 11; see Debra McDavid, 57 ECAB 149 (2005). 

16 See Dean D. Beets, supra note 12. 

17 Supra note 10 at Chapter 2.1602.5a; see id. 
5

its face that OWCP committed an error in granting appellant a schedule award for four percent 

impairment of each lung. 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 request for reconsideration on 

the basis that it was untimely filed and failed to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the December 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 10, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board