United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Oakland, CA, Employer 

__________________________________________ 

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Docket No. 15-1944 

Issued: March 7, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 28, 2015 appellant filed a timely appeal of a May 11, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from July 18, 2013, the date of the most recent merit decision, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of the case. 

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 contends that the medical evidence submitted in support of her 

request for reconsideration is sufficient to establish clear evidence of error on the part of OWCP 

and argues that the reports from her attending physicians are sufficient to rebut the opinion of 

OWCP’s referral physician. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2 

FACTUAL HISTORY 

OWCP accepted that appellant, then a 52-year-old distribution and window clerk, 

sustained postconcussion syndrome and a resolved neck sprain on April 10, 2009 as a result of 

being hit on the head by the top door of a shelf on a general purpose container. She stopped 

work on April 10, 2009 and received compensation benefits. Appellant returned to part-time 

modified duty for two hours per day on June 8, 2009, increased to working four hours per day on 

July 6, 2009, and then six hours per day on July 16, 2009 with restrictions. Thereafter, she 

continued to receive wage-loss compensation for periods in which she could not work. 

OWCP referred appellant to Dr. Michael Bronshvag, a Board-certified neurologist, for a 

second opinion to determine the nature and extent her employment-related conditions. In a 

September 16, 2011 report, Dr. Bronshvag noted that a magnetic resonance imaging (MRI) scan 

was necessary to evaluate her condition. In a supplemental report dated October 22, 2011, he 

asserted that the MRI scan of her neck dated September 2011 was only minimally abnormal and 

a February 2011 MRI scan of the brain showed no brain difficulties, but extensive paranasal 

sinus disease. X-rays of the neck demonstrated mild degenerative disc disease at C4-7 and 

neuroforaminal narrowing. Dr. Bronshvag opined that appellant’s ongoing head pain and 

headaches were caused by her paranasal sinusitis, which was not an employment-related 

condition. Examination findings of appellant’s neck were benign. Dr. Bronshvag concluded that 

her employment-related conditions had resolved without residuals. He opined that appellant had 

reached maximum medical improvement and released her to regular duty without restrictions. 

In a letter dated June 27, 2012, OWCP advised appellant that it proposed to terminate her 

compensation benefits based on the weight of the medical evidence, as represented by 

Dr. Bronshvag. It afforded her 30 days to submit additional evidence or argument in 

disagreement with the proposed action. 

Appellant submitted additional medical evidence, including a July 19, 2012 

psychological evaluation from Dr. Frank Lucchetti, a clinical psychologist, and a July 18, 2012 

report from Dr. Susan Barnard, a Board-certified family practitioner. These reports both had 

found appellant able to return to full-duty work. 

By decision dated September 6, 2012, OWCP terminated appellant’s compensation 

benefits effective July 21, 2012. It found that the weight of the evidence was represented by 

Dr. Bronshvag. 

On April 24, 2013 appellant requested reconsideration and submitted a December 16, 

2012 report from Dr. Eric Crisostomo, a Board-certified internist, who opined that her 

postconcussive symptoms were causally related to her April 10, 2009 employment injury. 

By decision dated July 18, 2013, OWCP denied modification of its September 6, 2012 

termination decision. 

In an appeal request form received by OWCP on April 17, 2015 appellant requested 

reconsideration and submitted a March 13, 2015 report from Dr. Mihwa Kim, an optometrist, 
3 

who diagnosed dizziness and headaches due to a shelf falling on appellant’s head on 

April 10, 2009.2 

On August 20, 2014 Dr. Nicole Andreatta, appellant’s psychologist, diagnosed a 

traumatic brain injury due to the April 10, 2009 employment injury. 

In a November 17, 2014 report, Dr. Christina Corey, a Board-certified otolaryngologist, 

diagnosed dizziness and headaches. She noted that appellant’s symptoms began in 2009 when a 

shelf fell on her head. Dr. Corey reported that appellant was treated with water therapy, 

vestibular therapy for six months in 2011, and Botox therapy in the neck, but she continued to 

have constant headaches and dizziness. 

On February 6, 2015 Dr. Joshua Kuluva, a Board-certified psychiatrist and neurologist, 

reported that appellant had been under his care since May 2014 and was seen in his office on 

December 21, 2014. He diagnosed postconcussion syndrome and noted that her symptoms 

persisted. 

In a February 22, 2015 report, Dr. Crisostomo found that appellant suffered from chronic 

symptoms such as vertigo, neck pain, and headaches/migraines. He opined that these symptoms 

were caused by postconcussive syndrome that began due to an April 10, 2009 employment injury 

when a shelf at work fell on her head and neck. Dr. Crisostomo noted that since that date she 

had chronic intermittent vertigo and neck pain, as well as more frequent headaches, and migraine 

symptoms. He reported that appellant was evaluated and treated by various specialists for her 

symptoms, including neurologists, physical therapists, spine specialists, and chronic pain 

specialists. Dr. Crisostomo opined that she continued to suffer residuals of her employmentrelated conditions despite these treatments and required ongoing medical treatment for her 

symptoms. 

By decision dated May 11, 2015, OWCP denied appellant’s request for reconsideration 

on the grounds that it was untimely filed and failed to present 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.3

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

discretionary authority under section 8128(a).4 One such limitation provides that an application 

for reconsideration must be received within one year of the date of OWCP’s decision for which 

                                                             2

 On January 3, 2015 appellant filed a claim for a recurrence (Form CA-2a) of total disability. By letter dated 

January 22, 2015, OWCP advised her that the claim was not able to be reviewed because her case was formally 

terminated for both medical and wage-loss compensation benefits in its September 6, 2012 decision. 

3 See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

4 See Annette Louise, 54 ECAB 783, 789-90 (2003). 
4 

review is sought.5 The Board has found that the imposition of this one-year time limitation does 

not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).6 

Section 10.607(b) states that OWCP will consider an untimely application for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. The reconsideration request must establish that OWCP’s decision was, on its face, 

erroneous.7 

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

issue, which was decided by OWCP.8

 The evidence must be positive, precise, and explicit and 

must be manifest on its face that OWCP committed an error.9

 Evidence that does not raise a 

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

clear evidence of error.10 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the 

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

and whether the new evidence demonstrates clear error on the part of OWCP.12 

To establish 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 the OWCP decision.13 The 

Board makes an independent determination of whether a claimant has submitted clear evidence 

of error on the part of OWCP such that OWCP abused its discretion in denying merit review in 

the face of such evidence.14 

ANALYSIS 

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

request for reconsideration. OWCP’s regulations15 and procedures16 establish a one-year time 

                                                             5

 20 C.F.R. § 10.607(a). 

6 See F.R., Docket No. 09-575 (issued January 4, 2010). 

7

 20 C.F.R. § 10.607(b). 

8 See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992). 

9 See M.L., Docket No. 09-956 (issued April 15, 2010). 

10 See Richard L. Rhodes, 50 ECAB 259, 264 (1999). 

11 See Leona N. Travis, 43 ECAB 227, 241 (1991). 

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

13 See Veletta C. Coleman, 48 ECAB 367, 370 (1997). 

14 See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993). 

15 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005). 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011); see

supra note 13. 
5 

limit for requesting reconsideration, which begins on the date of the original OWCP decision. 

The most recent merit decision was OWCP’s July 18, 2013 decision. Appellant had one year 

from the date of this decision to make a timely request for reconsideration. Since OWCP did not 

receive her request until April 17, 2015, it was filed outside the one-year time period. As 

appellant’s April 17, 2015 request for reconsideration was submitted more than one year after the 

July 18, 2013 merit decision, it was untimely filed. Consequently, she must demonstrate clear 

evidence of error by OWCP in the denial of her claim.17 

The Board finds that the evidence submitted by appellant in support of her request for 

reconsideration does not raise a substantial question as to the correctness of OWCP’s May 11, 

2015 decision or shift the weight of the evidence of record in her favor. OWCP terminated her 

disability compensation effective July 21, 2012 based on the medical opinion of Dr. Bronshvag, 

an OWCP referral physician, who opined that she no longer had any residuals or disability 

causally related to the accepted April 10, 2009 employment injury. 

Dr. Crisostomo’s February 22, 2015 report found that appellant suffered from chronic 

symptoms such as vertigo, neck pain, and headaches/migraines caused by the postconcussive 

syndrome that began due to the April 10, 2009 employment injury. He asserted that her workrelated conditions had not resolved and required ongoing treatment. The term clear evidence of 

error is intended to represent a difficult standard. Even a detailed, well-rationalized medical 

report, which could have created a conflict in medical opinion requiring further development if 

submitted prior to issuance of the denial decision, does not constitute clear evidence of error.18 

While the report of Dr. Crisostomo is generally supportive of appellant’s continuing residuals 

and disability, it does not establish clear error in the May 11, 2015 decision. 

Similarly, the reports from Drs. Kim, Andreatta, and Corey diagnosing a traumatic brain 

injury, dizziness, and headaches due to the April 10, 2009 employment injury are of limited 

probative value and insufficient to establish clear evidence of error. As discussed, clear evidence 

of error is a difficult standard. It is not enough to show that evidence could be construed so as to 

produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s favor.19 

Thus, the Board finds that the reports of Drs. Kim, Andreatta, and Corey are insufficient to shift 

the weight of the evidence in favor of appellant or raise a fundamental question as to the 

correctness of OWCP’s termination decision. 

The February 6, 2015 report from Dr. Kuluva does not address how appellant’s 

continuing total disability was caused by the April 10, 2009 employment injury. Evidence which 

is irrelevant to the issue which was decided by OWCP does not establish clear evidence of 

error.20 

                                                             17 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 

18 See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013). 

19 See M.N., Docket No. 15-0758 (issued July 6, 2015). 

20 T.M., Docket No. 15-1571 (issued November 5, 2015). 
6 

As the evidence submitted by appellant is insufficient to raise a substantial question as to 

the correctness of OWCP’s last merit decision, she has not established clear evidence of error.21 

On appeal, appellant contends that the medical evidence submitted in support of her 

claim is sufficient to establish clear evidence of error on the part of OWCP and argues that the 

reports from her attending physicians are sufficient to rebut the opinion of Dr. Bronshvag. As 

explained, the burden of proof is intended to be difficult when a request for reconsideration has 

been filed after the one-year filing period. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration on 

the basis that it was not timely filed and did not establish clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the May 11, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 7, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             21 See supra note 13.