United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

RESERVE COMMAND, Fort McPherson, GA, 

Employer

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Docket No. 17-0843

Issued: July 9, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 6, 2017 appellant filed a timely appeal from a September 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 August 13, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated June 11, 2018, the Board denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 17-0843 (issued June 11, 2018).
2

ISSUE

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

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

FACTUAL HISTORY

On January 24, 2011 appellant, then a 52-year-old supervisory accountant, filed a traumatic 

injury claim (Form CA-1) claiming that, on January 18, 2011, she sustained injury when she fell 

on a wet floor while entering the building where she worked. She asserted that she fell on her right 

side and injured her right thumb, wrist, arm, and shoulder. A coworker indicated on the form that 

he witnessed appellant using her right hand to break her fall. Appellant did not stop work, but she 

began performing limited-duty work for the employing establishment without wage loss.

In a January 20, 2011 injury status report, Dr. John P. Kelley, an attending Board-certified 

orthopedic surgeon, diagnosed rotator cuff syndrome of the right shoulder, right thumb sprain, and 

right wrist sprain.

OWCP accepted appellant’s claim for complete rotator cuff tear of the right shoulder, right 

thumb sprain, and right wrist sprain.

On May 18, 2011 appellant underwent OWCP-approved right thumb surgery, including

repair of old rupture of right ulnar collateral ligament, and temporary fixation with Kirshner wire 

and short arm casting.

On November 8, 2012 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to her accepted work conditions. By decision dated February 11, 2013, OWCP 

granted appellant a schedule award for two percent permanent impairment of her right upper 

extremity.

In a September 30, 2013 report, Dr. Paul F. Richin, an attending Board-certified orthopedic 

surgeon, indicated that appellant reported occasional aching in her left knee. He advised that a left 

knee MRI scan showed a small radial tear along with some mild tricompartmental arthritis and he 

noted that appellant had tenderness in the posterior corner of her left knee without swelling.

3

 

Dr. Richin indicated, “I do think that this may have gotten torn or irritated when she had her fall a 

couple of years ago since it has been bothering her since then, but there is no way to definitely say 

that.” He diagnosed radial tear of the medial meniscus posterior horn and mild arthritis of the left 

knee. 

In a November 1, 2013 statement, appellant requested that OWCP expand the acceptance 

of her claim to include a left knee condition. She asserted that she had experienced left knee pain 

since her January 18, 2011 fall, but that she was initially more concerned with her right thumb 

 

3 The record contains a September 20, 2013 magnetic resonance imaging (MRI) scan with the following impression: 

Joint effusion with Baker’s cyst and radial tear of the posterior horn of the medial meniscus.
3

condition. Appellant indicated that the September 20, 2013 MRI scan of her left knee showed a 

small radial tear of the posterior horn of the medial meniscus. 

In a November 18, 2013 development letter, OWCP requested that appellant submit 

additional evidence in support of her request to expand the acceptance of her claim, including a 

physician’s opinion supported by a medical explanation as to how her left knee condition was 

related to the January 18, 2011 employment injury. It also requested that she provide a description 

of the history of her left knee problems. OWCP afforded appellant 30 days to submit a response.

Appellant submitted a December 9, 2011 statement in which she asserted that she had not 

suffered a left knee injury prior to January 18, 2011. She also submitted a copy of the 

November 18, 2013 development letter with notations which do not contain a signature.

By decision dated January 6, 2014, OWCP denied appellant’s request for expansion of the 

acceptance of her claim to include a left knee condition. It found that she failed to submit medical 

evidence sufficient to establish that she sustained a left knee condition related to the January 18, 

2011 employment injury. 

On January 29, 2014 appellant requested a telephone hearing with a representative of 

OWCP’s Branch of Hearings and Review. During the hearing held on September 15, 2014, she

testified that she experienced left knee symptoms since her January 18, 2011 employment injury. 

Appellant indicated that the left knee pain she initially experienced after the January 18, 2011 

employment accident was not severe, but that the pain later became worse.

Appellant submitted a January 18, 2011 note from Dr. Patricia Glenn-Shaheed, an 

attending Board-certified internist, who noted, “[Left] knee swelling, pain after fell in snow at 

work in the building.” In a December 30, 2011 note, Dr. Glenn-Shaheed indicated, “Right hip 

pain and lumbar strain as a result of falling and hurting [left] knee.”

Appellant also submitted an April 7, 2014 report from Dr. Richin who advised that 

appellant did not mention experiencing left knee pain during her first visits to him after 

January 18, 2011. Dr. Richin noted that, after an unspecified date, when appellant mentioned left 

knee pain, he determined that she had a radial tear of the left medial meniscus. With respect to 

appellant’s claim of sustaining a left knee condition on January 18, 2011, he noted, “I have no 

first-hand knowledge of this and I cannot find any information in Dr. [Kelley’s] old chart that 

would indicate that she did talk to him about this so there is no other way I can say anything about 

this other than what the patient told me, that it happened at the time of her accident and has been 

bothering her ever since.”

By decision dated December 3, 2014, OWCP’s hearing representative affirmed OWCP’s 

January 6, 2014 decision noting that the newly submitted medical evidence was insufficient to

establish that appellant sustained a left knee condition causally related to the January 18, 2011 

employment injury.

On July 16, 2015 appellant requested reconsideration of the December 3, 2014 decision. 
4

In a December 1, 2014 report, Dr. Richin noted that appellant had a knee problem and that 

she was waiting for approval for meniscus surgery.4 In a March 30, 2015 report, he indicated that 

appellant had a knee problem which was “on her other insurance.”

In a May 29, 2015 report, Dr. Glenn-Shaheed advised that on January 18, 2011 she 

evaluated appellant due to swelling of her right arm. Appellant reported at that time that she fell 

on a slippery floor, caused by ice tracked in from a snowstorm, when she entered her workplace 

building. Dr. Glenn-Shaheed noted that appellant was limping and that she complained of left 

knee aches which started after the January 18, 2011 fall. She sent appellant for a same-day hand

x-ray, ordered a left knee MRI scan, and prescribed “other regimens to treat the injuries.”

Dr. Glenn-Shaheed indicated that she was attaching “the initial progress note that supports the 

complaints of the injuries that the patient sustained on [January 18, 2011].”

5

 She advised that 

appellant had presented on multiple office visits with consistent pain in her left knee and that she 

continued to require prescribed medications to suppress the pain. 

By decision dated August 13, 2015, OWCP denied modification of its December 3, 2014

decision noting that appellant failed to submit medical evidence sufficient to justify expanding the 

acceptance of the claim to include a left knee condition.

On August 29, 2016 appellant requested reconsideration of the August 13, 2015 decision. 

In an August 25, 2015 letter, she asserted that OWCP’s August 13, 2015 decision affirming the 

denial of her request to expand the accepted conditions was “not correct.”

Appellant submitted reports of Dr. Richin discussing her visits on November 11, 2015 and 

June 21, 2016. In two reports dated November 11, 2015, Dr. Richin described appellant’s history 

of treatment for her right thumb condition, listed range of motion findings for her right thumb, and 

diagnosed chronic pain of the right thumb. In two reports dated June 21, 2016, he detailed her

history of treatment for her right thumb condition, noted weakness of her right hand grip, and 

diagnosed chronic pain of the right thumb.

Appellant also submitted several administrative documents, including an undated letter in 

which the Dekalb Medical Physicians Group advised of an address change, an October 19, 2015 

letter regarding appellant’s medical insurance benefits, and a May 17, 2016 letter in which the 

employing establishment requested OWCP to close the present claim due to inactivity. 

By decision dated September 8, 2016, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error. 

It found that her request for reconsideration was untimely filed because it was not received until 

August 29, 2016, more than one year after issuance of its August 13, 2015 merit decision. OWCP 

further found that the evidence and argument appellant submitted in connection with her untimely 

reconsideration request failed to demonstrate clear evidence of error in its August 13, 2015

decision denying her request to expand the acceptance of her claim to include a left knee condition.

 

4 Dr. Richin advised that the knee problem was “a workman’s comp[ensation] [sic].”

5 No additional documents were attached to the May 29, 2015 note.
5

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an award 

for or against payment of compensation at any time on his or her own motion or on application. 

The Secretary, in accordance with the facts found on review, may end, decrease or increase the 

compensation awarded; or award compensation previously refused or discontinued.6

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the implementing 

regulations provide that an application for reconsideration must be received within one year of the 

date of OWCP’s decision for which review is sought.7 Timeliness is determined by the document 

receipt date (i.e., the “received date” in OWCP’s Integrated Federal Workers’ Compensation 

System).8 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.9

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing 

limitation, if the claimant’s application for review demonstrates clear evidence of error on the part 

of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a claimant 

must submit evidence relevant to the issue that was decided by OWCP. The evidence must be 

positive, precise, and explicit and must be manifest on its face that OWCP committed an error.10 

The evidence submitted must not only be of sufficient probative value to create a conflicting 

medical opinion or establish 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.11 

The Board notes that clear evidence of error is intended to represent a difficult standard.12 

Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision 

is insufficient to demonstrate clear evidence of error.13 It is not enough merely to establish that 

the evidence could be construed so as to produce a contrary conclusion.14 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence demonstrates 

 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.607(a).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

10 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

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

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

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

14 Id.
6

clear error on the part of OWCP.15 The Board makes an independent determination as to whether 

a claimant has demonstrated clear evidence of error on the part of OWCP.16

ANALYSIS

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.

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

timely request for reconsideration. An application for reconsideration must be received within one 

year of the date of OWCP’s decision for which review is sought.17 As appellant’s request for 

reconsideration was not received by OWCP until August 29, 2016, more than one year after 

issuance of its August 13, 2015 merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in its August 13, 2015 decision.

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

part of OWCP in issuing its August 13, 2015 decision. 

Appellant failed to submit the type of positive, precise, and explicit evidence which 

manifests on its face that OWCP committed an error in its August 13, 2015 decision.18 The 

evidence and argument she submitted did not raise a substantial question concerning the 

correctness of OWCP’s decision. Appellant submitted a statement in which she asserted that she 

sustained a left knee condition related to the accepted January 18, 2011 employment injury.

19

 

However, she did not identify any specific errors in OWCP’s August 13, 2015 decision denying 

her request to expand the acceptance of her claim to include a left knee condition and she has not 

raised a substantial question as to the correctness of that decision.20 Appellant merely asserted, 

without elaboration, that OWCP’s August 13, 2015 decision was “not correct.”

Appellant submitted several medical reports discussing her right thumb/hand condition. In 

reports dated November 11, 2015 and June 21, 2016, Dr. Richin detailed appellant’s history of 

treatment for her right thumb condition, discussed examination findings from these dates, and 

diagnosed chronic pain of the right thumb. None of these reports discuss appellant’s left knee 

condition or contain an opinion relating it to the January 18, 2011 employment injury.

21

 Therefore, 

 

15 Id.

16 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

17 See supra note 7.

18 See supra note 8.

19 OWCP accepted that appellant sustained complete rotator cuff tear of the right shoulder, right thumb sprain, and 

right wrist sprain due to a fall at work on January 18, 2011.

20 See supra notes 9 and 11.

21 The Board has held that medical evidence which does not offer an opinion regarding the cause of an employee’s 

condition is of no probative value on the issue of causal relationship. See Charles H. Tomaszewski, 39 ECAB 461 (1988).
7

these reports would not tend to show that OWCP erred in issuing its August 13, 2015 decision

which denied the expansion of the acceptance of her claim to include a left knee condition.

Appellant also submitted several administrative documents, including an undated letter in 

which the Dekalb Medical Physicians Group advised of an address change, an October 19, 2015 

letter regarding appellant’s medical insurance benefits, and a May 17, 2016 letter in which the 

employing establishment requested that OWCP close the present claim due to inactivity. However, 

none of these documents would tend to show that OWCP committed error in issuing its August 13, 

2015 decision.22

The Board finds that appellant’s request for reconsideration does not show on its face that 

OWCP committed error when it denied expansion of the acceptance of her claim to include a left 

knee condition in its August 13, 2015 decision.23 As noted, clear evidence of error is intended to

represent a difficult standard24 appellant has not met this standard in this case.

For these reasons, the evidence submitted by appellant does not raise a substantial question 

concerning the correctness of OWCP’s August 13, 2015 decision and OWCP properly determined 

that appellant did not demonstrate clear evidence of error in that decision.

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.

 

22 Id.

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

24 See supra note 10.
8

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: July 9, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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