United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

U.S. POSTAL SERVICE, VEHICLE 

MAINTENANCE FACILITY, Providence, RI, 

Employer

__________________________________________

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Docket No. 18-0623

Issued: October 4, 2018

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 30, 2018 appellant filed a timely appeal from a January 8, 2018 nonmerit 

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

elapsed from the last merit decision, dated October 21, 2014, 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 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.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 25, 2008 appellant, then a 38-year-old mechanic, filed an occupational 

disease claim (Form CA-2) alleging that he developed soreness in his hands, wrists, and arms 

working with wrenches and other tools while in the performance of duty. He identified 

September 24, 2006 as the date he first became aware of his condition. However, it was not until 

September 24, 2008 that appellant first realized his condition was caused or aggravated by factors 

of his federal employment. Appellant continued to work. 

On March 27, 2009 OWCP advised appellant that his claim had been accepted for bilateral 

carpal tunnel syndrome and left ulnar nerve compression.2

On May 26, 2009 appellant underwent authorized left open carpal tunnel release and 

release of the left canal of Guyon. He stopped work and received wage-loss compensation for 

temporary total disability. On September 15, 2009 appellant underwent authorized right 

endoscopic carpal tunnel release. He continued to receive wage-loss compensation for temporary 

total disability. 

On November 30, 2009 appellant filed a schedule award claim (Form CA-7). 

By development letter dated December 10, 2009, OWCP requested that appellant submit 

an impairment evaluation from his attending physician with an opinion as to whether he had 

reached maximum medical improvement (MMI) and whether he had a permanent impairment in 

accordance with the sixth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).3 It afforded him 30 days to submit the necessary 

evidence. 

On January 11, 2010 appellant returned to full-time, limited duty as a modified auto 

technician.

A March 8, 2010 report by Dr. Leonard F. Hubbard, a Board-certified orthopedic hand 

surgeon, was received. He indicated that appellant had reached MMI on March 8, 2010. 

Dr. Hubbard reported that appellant had no objective findings and no restriction of motion upon 

physical examination. He completed a permanent impairment worksheet, which showed that 

according to the Right Upper Extremity table and Left Upper Extremity table, appellant had zero 

percent permanent impairment of the bilateral upper extremities. 

 

2 OWCP initially denied appellant’s occupational disease claim by decision dated November 19, 2008. Appellant 

subsequently requested a review of the written record, and by decision dated March 19, 2009, an OWCP hearing 

representative reversed the November 19, 2008 decision and accepted appellant’s claim for bilateral carpal tunnel 

syndrome and left ulnar nerve compression.

3 A.M.A., Guides (6th ed. 2009).
3

On January 29, 2013 appellant was separated from his employment.4

Dr. Hubbard continued to treat appellant. In a March 8, 2013 examination note, he reported 

a QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 73 bilaterally and 

symmetrical grip strength. Dr. Hubbard indicated that appellant was at MMI. He opined that 

based on appellant’s lack of function and altered sensation, he had seven percent permanent 

impairment of each upper extremity according to the fifth edition of the A.M.A., Guides.

5

In a July 3, 2013 letter and impairment evaluation form, Dr. Hubbard recounted that 

appellant was at MMI. He reported that according to the sixth edition of the A.M.A., Guides, 

appellant had five percent permanent impairment of the left upper extremity and four percent 

permanent impairment of the right upper extremity. In a July 18, 2013 letter, Dr. Hubbard again 

noted that appellant had reached MMI. He reported that according to the sixth edition of the 

A.M.A., Guides appellant had four percent permanent impairment of each upper extremity as a 

result of the injury and treatment.

In an August 14, 2013 letter, Dr. Hubbard explained that appellant was seen for “an end 

result examination and loss of use rating.” He indicated that according to the sixth edition of the 

A.M.A., Guides appellant had four percent whole person impairment, four percent left upper 

extremity impairment, and four percent right upper extremity impairment. Dr. Hubbard noted that 

appellant had reached MMI. He provided a medical impairment rating report, which indicated that 

he utilized Table 15-23 and Table 15-7 of the A.M.A., Guides.

OWCP referred appellant, along with a statement of accepted facts (SOAF) and the medical 

record, to Dr. Steven A. Silver, a Board-certified orthopedic surgeon, for a second opinion 

examination in order to determine whether appellant sustained ratable impairment of his upper 

extremities in accordance with the A.M.A., Guides. In a January 7, 2014 report, Dr. Silver 

reviewed appellant’s history of injury and discussed his medical records. Upon physical 

examination of appellant’s upper extremities, he observed decreased sensation in the thumb, index, 

long, ring, and little fingers on the left and right hands. Dr. Silver also reported opponens pollicis 

atrophy, weakness, and decreased range of motion of the bilateral wrists. He diagnosed status post 

carpal tunnel release of the bilateral wrists, status post ulnar nerve release of the left wrist, recurrent 

carpal tunnel syndrome of the bilateral wrists, ulnar nerve impingement of the right wrist, and 

partial ankyloses of the right hand.

Dr. Silver noted that appellant had reached MMI on or about August 14, 2013. He reported 

that according to the sixth edition of the A.M.A., Guides, Table 15-23 on page 449, appellant had 

grade modifiers of 2 for functional history and physical examination and 1 for test findings for loss 

of function of his median nerves, resulting in six percent loss of function of the bilateral upper 

extremities. Regarding appellant’s left ulnar nerve, Dr. Silver noted grade modifiers of 2 for 

physical examination and functional history and 1 for test findings, resulting in a functional scale 

of 3. He calculated that appellant’s loss of function was a 5/3 with an increase of grade modifier 

 

4 Appellant subsequently filed a notice of recurrence (Form CA-2a) claiming disability, which OWCP denied by 

decision date May 29, 2013.

5 A.M.A., Guides (5th ed. 2001).
4

3 due to severe symptoms and a total loss of function of 6. Dr. Silver concluded that appellant had 

right upper extremity loss of function of nine and left upper extremity loss of function of nine.

In a March 11, 2014 report, Dr. Morley Slutsky, a Board-certified occupational medicine 

specialist and OWCP medical adviser, reviewed appellant’s claim, including Dr. Silver’s 

January 7, 2014 report, and disagreed with his findings. He reported that appellant had three 

percent permanent impairment of the right upper extremity and five percent permanent impairment 

of the left upper extremity for his accepted conditions of bilateral carpal tunnel syndrome and left 

ulnar nerve compression. Dr. Slutsky noted a date of MMI of January 7, 2014, the date of

Dr. Silver’s examination. He explained that when there is more than one compression neuropathy 

in the same upper extremity, the highest impairment is taken at 100 percent and the next highest 

is taken at 50 percent. Accordingly, Dr. Slutsky reported that with regard to appellant’s left upper 

extremity, he had one impairment of three percent for carpal tunnel syndrome combined with 

another impairment of two percent for left cubital tunnel syndrome for a total of 5 percent left 

upper extremity impairment.

6

 Regarding appellant’s bilateral carpal tunnel syndrome, he utilized 

Table 15-23 on page 449, and indicated that appellant had grade modifiers of 1 for testing and 

history and 2 for physical examination, resulting in a final bilateral upper extremity impairment of 

three percent. Regarding appellant’s left cubital tunnel syndrome, Dr. Slutsky reported that 

appellant had grade modifiers of 1 for testing, history, and physical examination for a left upper 

extremity permanent impairment rating of three percent.

In an April 16, 2014 report, Dr. Silver reviewed Dr. Slutsky’s March 11, 2014 report and 

noted that he had “no disagreement with Dr. Slutsky’s evaluation.”

OWCP referred appellant’s claim back to Dr. Slutsky for clarification and review. He 

explained that he agreed with Dr. Silver’s impairment rating of six percent for the right upper 

extremity due to appellant’s carpal tunnel condition, but determined that appellant had eight 

percent total left upper extremity impairment instead of Dr. Silver’s assignment of nine percent. 

Dr. Slutsky noted that he assigned two percent nerve impairment while Dr. Silver assigned three 

percent impairment. He explained that he disagreed with Dr. Silver’s assignment of grade 

modifiers in obtaining his impairment rating.7

On October 21, 2014 OWCP granted appellant a schedule award for eight percent 

permanent impairment of the left upper extremity and six percent permanent impairment of the 

right upper extremity, for a total of 43.68 weeks’ compensation. The award ran from January 7 

to November 8, 2014. OWCP found that the weight of the medical evidence rested with the 

 

6 Dr. Slutsky calculated that 1⁄2 of 3 percent was 1.5 percent, which was rounded to 2 percent impairment. He 

combined the 3 percent impairment for left carpal tunnel syndrome and the 2 percent impairment for left cubital tunnel 

syndrome for a total of 5 percent left upper extremity impairment.

7 Dr. Slutsky indicated that he assigned a grade modifier of 2 for functional history, as opposed to Dr. Silver’s 

assignment of 3, because there was documentation that appellant was unable to perform at least one of the activities

of daily living and he described mild, intermittent symptoms. He also noted a grade modifier of 1 for physical 

examination, instead of Dr. Silver’s assignment of 2, because of decreased sensation in the ulnar nerve distribution. 

Dr. Slutsky explained that two-point discrimination testing was not documented, so appellant was not eligible for a 

score of 1 or higher. 
5

July 31, 2014 report of Dr. Slutsky, an OWCP medical adviser, who accurately applied the 

A.M.A., Guides and provided an impairment rating in accordance with the A.M.A., Guides.

In a letter dated September 8, 2017, appellant asserted that the dates of his schedule award 

from January 7 to November 8, 2014 were incorrect. He alleged that his schedule award should 

be applied from the date of injury on September 24, 2006 to March 8, 2010, the date of MMI 

certified by his treating physician. Appellant noted that it was erroneous to use Dr. Silver’s 

examination date as the MMI date because Dr. Silver never treated him, but only reviewed his 

medical records. He explained that because of the MMI date that OWCP used to calculate his 

schedule award, the Social Security Administration (SSA) informed him that he had a substantial 

overpayment which he was expected to reimburse. Appellant alleged that he should not be liable 

for reimbursement to SSA based on erroneous dates used by OWCP. 

On October 17, 2017 an OWCP claims examiner informed appellant via telephone that the 

MMI date on the schedule award decision was medically driven, and not merely an administrative 

date change. He explained that the MMI date could affect pay rate. The claims examiner also 

advised appellant that he needed to resolve the issue with SSA because it could not “undo” the 

schedule award that was already paid. 

In an undated letter received by OWCP on December 4, 2017, appellant indicated that he 

was requesting reconsideration of the dates of his schedule award. He asserted that the award

should have run from September 24, 2006, the date of injury, to March 8, 2010, the date he 

returned to work and the MMI date certified by his treating physician. Appellant alleged that 

significant weight should be given to his treating physician, as opposed to Dr. Silver, because

Dr. Silver did not treat him. He noted that the dates that OWCP used to calculate the period of his 

schedule award had created an overpayment with his SSA benefits. Appellant requested that 

OWCP correct the dates so that he was not financially burdened by OWCP’s administrative error. 

No additional evidence was received with his reconsideration request.

By decision dated January 8, 2018, OWCP denied appellant’s reconsideration request. It

found that his December 4, 2017 reconsideration request was untimely filed and failed to 

demonstrate clear evidence that OWCP’s decision was in 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 This section vests OWCP with discretionary authority to determine whether it 

will review an award for or against compensation.9 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP will 

not review a decision denying or terminating a benefit unless the application for review is timely.10 

 

8 Thankamma Matthews, 44 ECAB 765, 768 (1993).

9

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

10 20 C.F.R. § 10.607(a). The Board has found that the imposition of the one-year limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. 5 U.S.C. § 8128(a); Leon D. 

Faidley, Jr., 41 ECAB 104, 111 (1989).
6

In order to be timely, a request for reconsideration must be received by OWCP within one year of 

the date of OWCP’s merit decision for which review is sought. Timeliness is determined by the 

document receipt date of the reconsideration request, that is, the received date in the Integrated 

Employees’ Compensation System (iFECS).

11

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

application was untimely filed. It may consider an untimely application for reconsideration if the 

evidence or argument contained in the reconsideration request demonstrates clear evidence of error 

on the part of OWCP.12 In this regard, OWCP will conduct a limited review of how the newly 

submitted evidence bears on the prior evidence of record.13 

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

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

manifest on its face that OWCP committed an error.14 Evidence that does not raise a substantial 

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

evidence of error.15 It is not enough merely to show that the evidence could be construed so as to 

produce a contrary conclusion.16 The evidence submitted must not only be of sufficient probative 

value to create a conflicting medical opinion or demonstrate a clear procedural error, but must be 

of sufficient probative value to shift the weight of the evidence in favor of the claimant and raise 

a substantial question as to the correctness of OWCP’s decision.17 The Board has held that even 

a report such as a detailed, well-rationalized medical report which, if submitted before the denial 

was issued, would have created a conflict in medical evidence requiring further development is 

insufficient to demonstrate clear evidence of error.18

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

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

in the face of such evidence.19 

 

11 Id. at § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(February 2016). 

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

13 See id. at § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992).

14 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

15 Jimmy L. Day, 48 ECAB 652 (1997).

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

17 Annie L. Billingsley, 50 ECAB 210 (1998).

18 A.R., Docket No. 15-1598 (issued December 7, 2015).

19 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, supra note 8.
7

ANALYSIS

OWCP’s last merit decision dated October 21, 2014 granted appellant a schedule award of 

eight percent left upper extremity permanent impairment and six percent right upper extremity 

permanent impairment. On December 4, 2017 appellant requested reconsideration of the schedule 

award decision.

20

 He did not take issue with the percentage of impairment awarded, but challenged 

OWCP’s finding that he reached MMI as of January 7, 2014. By decision dated January 8, 2018,

OWCP denied appellant’s request for reconsideration because it was untimely filed and failed to 

demonstrate clear evidence of error.

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

application for review. Timeliness is determined by the document receipt date of the 

reconsideration request (the received date in iFECS).21 By decision dated October 21, 2014, 

OWCP granted appellant a schedule award. It received his request for reconsideration on 

December 4, 2017, which was outside the one-year time limit. Consequently, appellant must 

demonstrate clear evidence of error by OWCP with regard to his schedule award claim.

22

The Board has reviewed the record and finds that appellant’s arguments on reconsideration 

do not raise a substantial question as to the correctness of OWCP’s October 21, 2014 schedule 

award decision and are, therefore, insufficient to demonstrate clear evidence of error. 

In its most recent merit decision, OWCP granted appellant a schedule award for eight 

percent permanent impairment of the left upper extremity and six percent permanent impairment 

of the right upper extremity based on the July 31, 2014 report of Dr. Slutsky, an OWCP medical 

adviser. The award ran from January 7 to November 8, 2014. In his reconsideration request,

appellant alleges that the period of his schedule award should be applied from the date of injury 

on September 24, 2006 to March 8, 2010, the date of MMI certified by his treating physician. He 

asserted that it was erroneous for OWCP to use Dr. Silver’s examination date as the MMI date 

because Dr. Silver did not treat him. 

In assessing eligibility for a schedule award, the medical evidence must show that the 

impairment has reached a permanent and fixed state, which is generally referred to as MMI.

23

 

Assuming MMI has been attained, the date of MMI is usually considered to be the date of the 

evaluation by the attending physician that is accepted as definitive by OWCP.24 Schedule awards 

 

20 The Board notes that OWCP properly determined that appellant was seeking reconsideration of the October 21, 

2014 OWCP schedule award decision, and was not seeking an increased schedule award due to increased impairment 

and/or additional exposure. See Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.3(b) 

(February 2016); see also J.K., Docket No. 14-1082 (issued November 24, 2014).

21 Supra note 11 at Chapter 2.1602.4(b) (February 2016).

22 Supra note 12; Debra McDavid, 57 ECAB 149 (2005).

23 Supra note 11 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5b(1)

(March 2017).

24 Id. at Chapter 2.808.7b(1).
8

begin on the date of MMI unless circumstances show a later date should be used.25 A retroactive

determination of the date of MMI is not per se erroneous.26 When the medical evidence establishes 

that the employee did in fact reach MMI by such date, the determination is proper.27

In order to demonstrate clear evidence of error, the evidence 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.28 As customarily is the case, OWCP’s 

identified date of MMI coincided with the date of the medical evaluation that formed the basis of 

the schedule award. Appellant failed to provide medical evidence and/or legal justification for 

selecting his September 24, 2006 date of injury as the appropriate date of MMI. He also did not 

articulate why Dr. Hubbard’s finding of MMI as of March 8, 2010 was a more appropriate date of 

MMI.29 Appellant’s statement does not demonstrate clear error on the part of OWCP with respect 

to its October 21, 2014 schedule award decision, and fails to shift the weight of the evidence in 

favor of him. He did not provide any additional evidence to show that OWCP erred in assigning 

an MMI date of January 7, 2014. Appellant has not submitted any evidence, which raises a 

substantial question concerning the correctness of OWCP’s schedule award decision and the dates 

for which the schedule award applied.

30

On appeal appellant reiterates his previous contention that OWCP assigned an erroneous 

MMI date of January 7, 2014. He has not, however, demonstrated clear evidence of error on the 

part of OWCP. The Board has found that the term “clear evidence of error” is intended to represent 

a difficult standard.31 It is not enough merely to show that the evidence could be construed so as 

to produce a contrary conclusion. The evidence submitted must be of sufficient probative value 

to shift the weight of the evidence in favor of the claimant and raise a substantial question as to 

the correctness of OWCP’s decision.32

The Board finds that appellant has failed to support his reconsideration request with 

evidence or argument demonstrating that OWCP’s October 21, 2014 schedule award decision was 

clearly erroneous. Appellant’s request was insufficient to raise a substantial question as to the 

correctness of OWCP’s October 21, 2014 decision or shift the weight of the evidence in his favor.

 

25 Id. at Chapter 2.808.7b(2).

26 Id. at Chapter 2.808.7b(3).

27 Id.

28 Supra note 17.

29 At the time, Dr. Hubbard indicated that appellant had zero percent bilateral upper extremity permanent 

impairment. 

30 See G.B., Docket No. 16-0319 (issued April 6, 2016).

31 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a) 

(October 2011).

32 Supra note 17.
9

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the January 8, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 4, 2018

Washington, DC

Christopher J. Godfrey, 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