United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.O., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Wilkes Barre, PA, Employer 

__________________________________________ 

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Docket No. 17-0664 

Issued: June 15, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 2, 2017 appellant filed a timely appeal from an August 8, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated May 7, 2015, 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 over the merits of the claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration as 

untimely filed and failing to demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 23, 2014 appellant, then a 41-year-old diagnostic radiologic technologist, filed a 

traumatic injury claim (Form CA-1) alleging that she injured her lower back and right hip area 

on April 13, 2014 while assisting a patient from a stretcher onto a radiology table. She notified 

the employing establishment of her claimed injury on April 23, 2014, and she stopped working 

the following day. Appellant resumed her regular duties on April 25, 2014. The employing 

establishment controverted the claim because of the delayed notification of injury, explaining 

that its policies/procedures required employees to report injuries as soon as possible. 

According to appellant’s supervisor, appellant stated that on April 13, 2014 she injured 

herself while moving a patient from a litter to the x-ray table. The supervisor further noted that 

on April 17, 2014 appellant stated that she strained herself moving a patient onto the 

computerized axial tomography (CAT) scan table. On April 21, 2014 appellant called in sick 

due to a sore back, and on April 22, 2014 she reported her injury to her supervisor. The 

following day, April 23, 2014, appellant’s supervisor escorted her to employee health and to the 

human resources workers’ compensation office. 

Dr. Joshua D. Hottenstein, a Board-certified family practitioner, examined appellant on 

April 24, 2014. He provided an April 24, 2014 duty status report (Form CA-17) with clinical 

findings of sacroiliac (SI) joint tenderness. Appellant reportedly injured herself on April 13, 

2014 when “pushing/lifting/moving patient on sheet to table.” Dr. Hottenstein indicated that she 

was currently able to resume her full-time regular work. He also provided an April 25, 2014 

attending physician’s report (Form CA-20) with a diagnosis of sacroiliac sprain. Dr. Hottenstein 

reported that approximately 10 days prior, appellant was “lifting/pushing patient on sheet to 

table” and she experienced pain later that day. He attributed her sacroiliac sprain to the 

described employment activity, explaining that the pain began in the evening after 

pushing/lifting patient. Dr. Hottenstein further remarked that it is always possible to develop 

chronic pain from an acute injury. His treatment included anti-inflammatory medication, a 

muscle relaxer, and therapy. Dr. Hottenstein indicated that appellant was totally disabled on 

April 21, 2014, and that she could resume her regular duties on April 22, 2014. 

An April 25, 2014 x-ray revealed a normal sacrum and coccyx. 

OWCP also received a May 7, 2014 physical therapy initial evaluation. The report 

included a history of injury on April 13, 2014 when appellant was assisting a patient from a 

gurney onto the x-ray table, and in the process she reached across the gurney and lifted the 

patient’s buttocks and pushed him/her forward onto the x-ray table. Appellant reportedly noted 

progressive pain and discomfort following the incident. The physical therapy report additionally 

noted that appellant injured herself on April 17, 2014 pulling a patient from a CAT scan table 

onto a gurney with the assistance of a nursing supervisor. This later incident “significantly 

exacerbated” appellant’s pain and discomfort. 

On May 9, 2014 appellant returned to Dr. Hottenstein for a follow-up examination. At 

that time, Dr. Hottenstein diagnosed SI joint dysfunction and lumbar spine sprain. He noted that 

this work-related injury occurred on April 13, 2014 while “moving/lifting patient on sheet.” 

Dr. Hottenstein also reported that appellant had no previous injuries in this area. Additionally, 
3

he noted that she missed work on four occasions between April 21 and May 7, 2014 due to pain. 

Dr. Hottenstein advised appellant to continue with her medications and physical therapy (12 

sessions). He estimated that it may take two to six weeks for her to recover, and months before 

she came close to 100 percent. 

In a May 13, 2014 attending physician’s report (Form CA-20), Dr. Hottenstein diagnosed 

SI joint inflammation, and checked the box marked “no” in response to the question of whether 

he believed the diagnosed condition was caused or aggravated by an employment activity. He 

noted that appellant was partially disabled from work during the period May 13 through 

November 13, 2014, and imposed work restrictions that included no lifting over 20 pounds, no 

sitting or standing more than 30 minutes at a time, and shifts over eight hours a day. 

Dr. Hottenstein also provided a May 13, 2014 duty status report (Form CA-17). 

Dr. Hottenstein examined appellant again on May 22, 2014. He noted, among other 

things, that her right SI joint pain had now spread to the right lateral hip. Dr. Hottenstein 

diagnosed SI joint inflammation, and continued to impose work restrictions. 

Appellant also submitted a June 11, 2014 supplemental statement describing the patientrelated lifting incidents that occurred on April 13 and 17, 2014. She also provided information 

regarding the timing of her notification about the work-related back/hip injuries. 

By decision dated June 12, 2014, OWCP denied appellant’s traumatic injury claim as she 

had not established a medical diagnosis in connection with the established injury or event(s). 

Thus, fact of injury was not established. 

On July 1, 2014 appellant’s then-counsel requested a hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on February 17, 2015. 

 OWCP received additional evidence, which included physical therapy treatment records 

dated June to September 2014, a July 17, 2014 lumbar magnetic resonance imaging (MRI) scan 

that was “Unremarkable,” a July 29, 2014 MRI scan of the pelvis, which revealed normal SI 

joints, and an October 16, 2014 right hip MRI scan that similarly revealed normal SI joints and 

normal femoral heads.2

 

 OWCP also received recent treatment records from Geisinger Health System, which 

included a December 2, 2014 neurosurgery history and physical report prepared by Michael T. 

Hatrak, a certified registered nurse practitioner. Appellant had a follow-up neurosurgery 

evaluation on January 13, 2015, at which time, Dr. Mauricio Campos-Benitez, a neurosurgeon, 

examined her and diagnosed chronic SI joint pain and right piriformis syndrome. Appellant was 

reportedly not interested in surgery, and was advised to continue receiving SI joint injections. 

With respect to her piriformis syndrome, Dr. Campos-Benitez recommended physical therapy 

and injections. On February 3, 2015 appellant was seen by Dr. Jolly L. Ombao, who is Boardcertified in both anesthesiology and pain medicine. Appellant’s active diagnoses included SI 

joint inflammation and chronic right SI joint pain. Dr. Ombao diagnosed sacroiliitis and 

 2

 There was also evidence of uterine fibroids and a minimal fluid signal near the insertion of the right gluteus 

medius tendon on the greater trochanter. 
4

piriformis syndrome. He recommended right buttock trigger point and SI joint injections. The 

December 2, 2014, January 13, and February 3, 2015 treatment records all noted an April 2014 

history of injury when appellant lifted and/or moved a patient onto a CAT scan table. 

 By decision dated May 7, 2015, the hearing representative affirmed the June 12, 2014 

decision. She noted that apart from numerous references to SI joint pain, the medical records 

lacked a definitive diagnosis and a well-reasoned medical opinion supporting causal relationship. 

Consequently, the hearing representative found that appellant had not met her burden of proof to 

establish an injury as alleged. 

On May 18, 2015 appellant’s then-counsel requested reconsideration of the hearing 

representative’s May 7, 2015 decision. He also submitted a July 11, 2014 report from 

Dr. Mohammed S. Shakil, a Board-certified orthopedic surgeon, who diagnosed prolapsed 

lumbar intervertebral disc and sacroiliac joint somatic dysfunction. 

OWCP took no action with respect to counsel’s May 12, 2015 request for 

reconsideration. 

On May 10, 2016 appellant again requested reconsideration. She submitted additional 

medical records, which included work restrictions from Dr. Shakil dated October 23, 

December 18, 2014, January 6 and March 5, 2015. Appellant’s various diagnoses included 

trochanter bursitis, right sacroiliitis, right SI joint dysfunction, and right buttocks/SI joint, with 

reported trigger point injections. She also submitted February 18, 2015 follow-up treatment 

records from Dr. Ombao, who diagnosed sacroiliitis and myofascial muscle pain. 

OWCP also received an April 1, 2015 report/letter from Dr. Hottenstein who advised that 

he had treated appellant for an SI joint inflammation/sprain injury that occurred at work on 

April 13, 2014. Dr. Hottenstein noted that appellant “reports the injury occurred at work ... 

lifting a patient on a sheet,” and soon afterward she began to have pain in the right sacroiliac 

joint area. He also noted that appellant’s x-rays and MRI scans of the lumbar spine and pelvis 

were unremarkable. Additionally, appellant’s neurological examination was normal, except for 

tenderness near and around the right SI joint. Dr. Hottenstein further explained that appellant 

consulted with a neurosurgeon, who did not recommend any surgical intervention. He also noted 

that she had undergone physical therapy with minimal to slight improvement. Lastly, 

Dr. Hottenstein reported that appellant had seen a pain management specialist, who performed 

multiple injections which helped temporarily. In conclusion, he noted that appellant’s course of 

improvement and recovery was very slow, and by September 2014 her pain had greatly 

improved, only to worsen again one to two months later. 

In an August 8, 2016 decision, OWCP denied further merit review because appellant’s 

May 10, 2016 request was untimely filed and failed to demonstrate clear evidence of error. 
5

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 has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4

 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.5

 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.”6 

The request must establish on its face that such decision was erroneous.7

 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.8

A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.9

 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.10

 3

 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). 

4

 20 C.F.R. § 10.607. 

5 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. 

6

 20 C.F.R. § 10.607(b). 

7 Id. To establish 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 establish 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 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. Thankamma Mathews, 44 ECAB 765, 770 (1993). 

8

 20 C.F.R. § 10.608(b). 

9 Id. at § 10.606(b)(3). 

10 Id. at § 10.608(a), (b). 
6

ANALYSIS 

OWCP initially denied appellant’s traumatic injury claim by decision dated June 12, 

2014 as she had not established a medical diagnosis in connection with the established injury or 

event(s) and, therefore, fact of injury was not established. In a May 7, 2015 decision, OWCP’s 

hearing representative affirmed the June 12, 2014 decision. Appellant had one year from the 

May 7, 2015 merit decision to timely request reconsideration.11 In its August 8, 2016 decision, 

OWCP noted that it received appellant’s request for reconsideration more than one year after the 

last merit decision dated May 7, 2015. Because appellant’s request was untimely filed, OWCP 

applied the clear evidence of error standard in determining whether to undertake further merit 

review of the claim. It ultimately concluded that appellant had not demonstrated clear evidence 

of error, and thus, denied further merit review of the claim. 

The Board finds that OWCP erred in determining that appellant’s request for 

reconsideration was untimely filed. The record reveals that appellant’s then-counsel initially 

requested reconsideration on May 18, 2015. Counsel’s request was also accompanied by new 

medical evidence. However, OWCP failed to address counsel’s timely request for 

reconsideration, and in the process, effectively denied appellant the opportunity to obtain further 

merit review of her claim before the Board.12 Consequently, the Board shall set aside the 

August 8, 2016 nonmerit decision, and remand the case for further merit review pursuant to 20 

C.F.R. § 10.606. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for reconsideration as 

untimely filed and failing to demonstrate clear evidence of error. 

 11 Id. at § 10.607(a). 

12 See Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.7a. 
7

ORDER 

IT IS HEREBY ORDERED THAT the August 8, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further consideration 

consistent with this decision. 

Issued: June 15, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board