United States Department of Labor 

Employees’ Compensation Appeals Board 

____________________________________________

Z.S., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

AERONAUTICAL SYSTEMS CENTER, 

WRIGHT-PATTERSON AIR FORCE BASE, OH, 

Employer 

____________________________________________ 

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Docket No. 16-1745 

Issued: May 18, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 30, 2016 appellant filed a timely appeal from an April 27, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

elapsed from the last merit decision, dated January 23, 2014, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act2 (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 it 

was untimely and failed to demonstrate clear evidence of error. 

 1

 Appellant timely requested oral argument. However, the Board exercised its discretion and denied her request 

pursuant to 20 C.F.R. § 501.5(a). See Order Denying Request for Oral Argument, Docket No. 16-1745 (issued 

March 3, 2017). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts as presented in the Board’s 

prior decisions are incorporated herein by reference. The relevant facts are set forth below.4

In an October 7, 2011 decision,5 the Board set aside OWCP’s August 4, 2010 nonmerit 

decision denying appellant’s request for reconsideration of its April 27, 2010 merit decision.6

 

The Board directed OWCP to conduct a merit review and issue an appropriate decision. In a 

decision dated August 15, 2012,7

 the Board set aside a February 13, 2012 OWCP decision and 

remanded the case for further medical development as there remained a conflict in medical 

opinion. The Board noted that Dr. Pietro Seni, a Board-certified orthopedic surgeon and OWCP 

referral physician, produced a May 13, 2009 report in which he diagnosed severe degenerative 

left hip osteoarthritis and concluded that appellant had a preexisting arthritic condition, which 

ceased being aggravated by the January 27, 2004 fall in mid-February 2004. In contrast, 

Dr. Suzanne Croteau, an attending osteopath, produced an August 15, 2011 report in which she 

diagnosed left piriformis and hip strains and opined that the January 27, 2004 fall caused an 

injury to the left hip and piriformis muscle. She concluded that work factors contributed to the 

development of continuing erosive osteoarthritis. The Board ordered OWCP to refer appellant to 

a Board-certified impartial medical specialist for an opinion regarding whether her continuing 

left hip condition and need for total left hip replacement surgery on December 28, 2006 were 

work related. 

On remand, OWCP referred appellant to Dr. Alan R. Kohlhaas, a Board-certified 

orthopedic surgeon, for an impartial medical examination and an opinion regarding whether she 

continued to have a work-related left hip condition and whether her December 28, 2006 total left 

hip replacement surgery was necessitated by a work-related condition. In an April 10, 2013 

 3

 Docket No. 11-0842 (issued October 7, 2011), Docket No. 12-0862 (issued August 15, 2012), and Docket No. 

13-1499 (issued January 23, 2014). 

4

 On January 27, 2004 appellant, then a 57-year-old logistics management specialist, slipped and fell on ice at 

work. OWCP accepted her claim for back, face, scalp, and neck contusions under OWCP File No. xxxxxx160. On 

September 15, 2006 appellant filed an occupational disease claim (under File No. xxxxxx470) for left hip joint pain 

due to her temporary assignment in Germany for the period April 27 to June 9, 2005. On September 9, 2008 she 

filed another occupational disease claim (also under File No. xxxxxx470), alleging that her left hip joint symptoms 

were exacerbated by physical therapy in 2005. On December 15, 2009 OWCP expanded the claim to include 

temporary aggravation of preexisting left hip osteoarthritis. Appellant underwent total left hip replacement surgery 

on December 28, 2006, which was not authorized by OWCP, and later claimed that the surgery was necessitated by 

a work-related condition. The documents contained in File Nos. xxxxxx160 and xxxxxx470 have been 

administratively combined. 

5

 Docket No. 11-0842 (issued October 7, 2011). 

6

 In an April 27, 2010 decision, an OWCP hearing representative had determined that appellant ceased to have a 

work-related left hip condition by mid-February 2004 and that her December 28, 2006 total left hip replacement 

surgery was not necessitated by a work-related condition. She considered several reports of attending physicians, 

including a June 5, 2008 report of Dr. James Beegan, a Board-certified physical medicine and rehabilitation 

physician, and found that they did not establish appellant’s claim of a continuing work-related left hip condition. In 

an August 4, 2010 decision, OWCP denied appellant’s June 23, 2010 request for merit review of the April 27, 2010 

decision. 

7

 Docket No. 12-0862 (issued August 15, 2012). 
3

report, Dr. Kohlhaas opined that the fall on January 27, 2004 did not cause the degenerative 

changes that had continued to slowly progress over time in both hips. He noted that, following 

her January 27, 2004 fall, appellant had significant improvement and was able to return to a 

fairly active lifestyle. Dr. Kohlhaas opined that the temporary aggravation of a preexisting 

condition caused by the January 27, 2004 fall had ceased by the time of appellant’s skiing trip in 

March 2005. He further opined that appellant’s need for total left hip replacement surgery on 

December 28, 2006 was due to the natural progression of her left hip osteoarthritis that 

preexisted her fall on January 27, 2004. Dr. Kohlhaas opined that the most likely cause of her 

condition and need for surgery was a nonwork-related femur acetabulum impingement condition. 

In an April 29, 2013 decision, OWCP determined that the previously accepted temporary 

aggravation of preexisting left hip osteoarthritis had ceased by March 2005 and that the 

December 28, 2006 total left hip replacement surgery was not necessitated by a work-related 

condition. Appellant appealed to the Board. 

By decision dated January 23, 2014,8

 the Board affirmed OWCP’s April 29, 2013 

decision finding that the work-related temporary aggravation of appellant’s preexisting left hip 

osteoarthritis had ceased and that the December 28, 2006 total left hip replacement surgery was 

not necessitated by a work-related condition. The Board found that the weight of the medical 

opinion evidence rested with the opinion of Dr. Kohlhaas, the impartial medical specialist. 

In a letter dated January 15, 2015 and received by OWCP on January 26, 2015, appellant 

requested reconsideration of OWCP’s April 29, 2013 decision. She contended that the reports of 

her attending physicians, including the June 5, 2008 report of Dr. Beegan9 and the August 15, 

2011 report of Dr. Croteau, established her claim that she had a continuing work-related left hip 

condition and that her December 28, 2006 total left hip replacement surgery was necessitated by 

a work-related condition. Appellant also argued that the April 10, 2013 report of Dr. Kohlhaas 

was insufficiently well rationalized to constitute the weight of the medical opinion evidence with 

respect to these matters. 

Appellant submitted additional evidence in support of her reconsideration request 

including additional narrative statements which were similar to her January 15, 2015 statement, 

timelines she created concerning her medical treatment, administrative documents concerning 

her OWCP claims, and statements expressing her concerns about the processing of her OWCP 

claims. 

In an April 27, 2016 decision, OWCP denied appellant’s request for reconsideration of 

the merits of her claim because her request was untimely filed and failed to demonstrate clear 

evidence of error. Appellant’s reconsideration request was received on January 26, 2015 more 

than one year after the issuance of the Board’s January 23, 2014 merit decision. OWCP 

considered the reconsideration request under the clear evidence of error standard and found that 

appellant had not shown clear error in its April 29, 2013 decision. It noted that appellant was 

merely attempting to make arguments which had previously been considered by OWCP. 

 8

 Docket No. 13-1499 (issued January 23, 2014). 

9 Supra note 5. 
4

LEGAL PRECEDENT 

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

matter of right.10 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.11 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.12 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.”13 The request must establish on its face that such decision was erroneous.14 Where a 

request for reconsideration is untimely and fails to present any clear evidence of error, OWCP 

will deny the request without reopening the case for a review on the merits.15

ANALYSIS 

The Board finds that OWCP properly determined that appellant’s January 26, 2015 

request for reconsideration was untimely filed. The last merit decision of record was the Board’s 

January 23, 2014 decision, which affirmed OWCP’s April 29, 2013 decision regarding 

appellant’s ongoing left hip complaints and her prior left total hip arthroplasty. The one-year 

period for filing a request for reconsideration begins on the date of the original OWCP decision, 

but also accompanies any subsequent merit decision by the Board.16 As such, appellant had one 

year from the Board’s January 23, 2014 decision to timely request reconsideration. Her request 

would have been timely if received by OWCP on or before Friday, January 23, 2015. Although 

the request was dated January 15, 2015, OWCP did not receive it until January 26, 2015, which in 

 10 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). 

11 20 C.F.R. § 10.607. 

12 Id. at § 10.607(a). 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. For decisions issued on or after June 1, 1987 

through August 28, 2011, the request for reconsideration must be mailed to OWCP within one year of OWCP’s 

decision for which review is sought. Id. at Chapter 2.1602.4e. 

13 20 C.F.R. § 10.607(b). 

14 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). 

15 20 C.F.R. § 10.608(b). 

16 Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.1602.4a. 
5

this case is the relevant date for purposes of determining timeliness.17 Because appellant’s 

January 26, 2015 request for reconsideration was untimely, she must demonstrate clear evidence 

of error with respect to OWCP’s April 29, 2013 merit decision.18

The Board finds that appellant has not demonstrated clear evidence of error on the part of 

OWCP in issuing its April 29, 2013 decision. 

Appellant did not submit the type of positive, precise and explicit evidence which 

manifests on its face that OWCP committed an error in its April 29, 2013 decision.19 In her 

January 26, 2015 request for reconsideration, appellant argued that the reports of her attending 

physicians, including the June 5, 2008 report of Dr. Beegan and the August 15, 2011 report of 

Dr. Croteau, established her claim that she had a continuing work-related left hip condition and 

that her December 28, 2006 left total hip arthroplasty was necessitated by a work-related 

condition.20 Appellant also argued that the April 10, 2013 report of Dr. Kohlhaas was not 

sufficiently well rationalized to constitute the weight of the medical opinion evidence with 

respect to these matters. 

The Board notes that appellant’s contentions made reference to evidence previously of 

record and already considered. OWCP had already considered the evidence mentioned by 

appellant when it issued its April 29, 2013 decision finding that the previously accepted 

temporary aggravation of preexisting left hip osteoarthritis had ceased by March 2005 and that 

the December 28, 2006 left total hip arthroplasty was not necessitated by a work-related 

condition. The evidence and arguments she submitted did not raise a substantial question 

concerning the correctness of OWCP’s April 29, 2013 decision.21 OWCP found that the weight 

of the medical opinion evidence with respect to these matters rested with the well-rationalized 

April 10, 2013 opinion of Dr. Kohlhaas and appellant’s lay opinion regarding the sufficiency of 

this medical opinion would not demonstrate clear error in OWCP’s April 29, 2013 decision.22 

Appellant also submitted additional evidence in support of her reconsideration request, 

including statements which were similar to her January 15, 2015 statement, timelines she created 

concerning her medical treatment, administrative documents concerning her OWCP claims, and 

statements expressing her concerns about the processing of her OWCP claim. The issue in the 

present case is medical in nature and appellant did not explain how this nonmedical evidence 

raised a substantial question as to the correctness of OWCP’s April 29, 2013 decision. 

 17 Id. at Chapter 2.1602.4b. 

18 20 C.F.R. § 10.607(b). 

19 Id.; Fidel E. Perez, 48 ECAB 663, 665 (1997). 

20 On appeal, appellant raised similar arguments about the medical reports of her attending physicians. 

21 See Annie L. Billingsley, 50 ECAB 210 (1998); Jimmy L. Day, 48 ECAB 652 (1997). The Board notes that, on 

appeal, appellant submitted documents regarding Freedom of Information Act proceedings that are not directly 

relevant to this appeal. 

22 With particular regard to Dr. Croteau’s November 28, 2011 report, the Board had already determined that this 

report constituted one side of the conflict in the medical opinion evidence that was resolved by the April 10, 2013 

report of Dr. Kohlhaas. 
6

The Board finds that appellant’s application for review does not show on its face that 

OWCP committed error when it found in its April 29, 2013 decision that the previously accepted 

temporary aggravation of preexisting left hip osteoarthritis had ceased by March 2005 and that 

the December 28, 2006 total left hip replacement surgery was not necessitated by a work-related 

condition.23 Clear evidence of error is intended to represent a difficult standard.24 Other than 

simply reiterating her previous arguments, appellant has not met this standard in this case. 

For these reasons, the evidence and argument submitted by appellant does not raise a 

substantial question concerning the correctness of OWCP’s April 29, 2013 decision and OWCP 

properly determined that appellant did not show clear evidence of error in that decision. 

CONCLUSION 

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

the merits of her claim because it was untimely filed and failed to demonstrate clear evidence of 

error. 

ORDER 

 IT IS HEREBY ORDERED THAT the April 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 18, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 23 See S.F., Docket No. 09-0270 (issued August 26, 2009). 

24 R.K., Docket No. 16-0355 (issued June 27, 2016).