United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

U.S. POSTAL SERVICE, CUSTOMER CARE 

CENTER, Detroit, MI, Employer

__________________________________________

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Docket No. 17-0198

Issued: January 28, 2019

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 November 7, 2016 appellant filed a timely appeal from a May 25, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated January 7, 2013, 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 this case.

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.

 

1 Appellant timely requested oral argument before the Board. By order dated May 5, 2017, the Board, after 

exercising its discretion, denied his request as the case could be adjudicated based on the case record. Order Denying 

Request for Oral Argument, Docket No. 17-0198 (issued May 5, 2017).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances set forth in 

the prior Board decision are incorporated herein by reference. The relevant facts are set forth 

below.

Appellant, then a 41-year-old mail processing clerk, has an accepted occupational disease 

claim (Form CA-2) for aggravation of lumbar radiculopathy at L5, which arose on or about 

June 13, 2011.4 At that time, he was working in a limited-duty capacity as a call center agent.5 

Appellant stopped work on June 15, 2011. OWCP paid appellant wage-loss compensation for 

temporary total disability, and subsequently placed him on the periodic compensation rolls.

Effective August 9, 2012, OWCP terminated appellant’s wage-loss compensation based on 

the June 1, 2012 report of Dr. Emmanuel N. Obianwu, a Board-certified orthopedic surgeon and 

OWCP referral physician. Dr. Obianwu found no evidence of an ongoing lumbar contusion, 

lumbar radiculopathy, or L4-5 disc herniation. He also reported that there were no residuals of the 

June 2011 aggravation of lumbar radiculopathy at the L5 level. The only unresolved condition 

was appellant’s L5-S1 disc herniation. Although appellant was unable to return to his date-ofinjury position, Dr. Obianwu found that the residuals of the L5-S1 disc herniation did not preclude 

him from resuming work as a call center agent. 

Appellant requested a hearing before a representative of OWCP’s Branch of Hearings and 

Review, held on October 23, 2012. By decision dated January 7, 2013 the hearing representative 

affirmed OWCP’s August 9, 2012 decision.

OWCP subsequently received additional medical evidence, which included treatment 

records and reports from Dr. Thomas C. Schuler, a Board-certified orthopedic surgeon, who 

initially examined appellant on January 8, 2013 and diagnosed lumbar radiculitis. 

It also received a January 25, 2013 electromyography and nerve conduction velocity

(EMG/NCV) study that evinced left-sided radiculopathy at L5-S1. 

 

3 Docket No. 15-0097 (issued August 21, 2015).

4 OWCP assigned the claim File No. xxxxxx086. Appellant had previously injured his lower back in a 

December 14, 2001 work-related fall, which OWCP accepted under File No. xxxxxx459 for a back contusion, lumbar 

radiculopathy, L4-5 disc protrusion, and L5-S1 disc herniation. The present claim, File No. xxxxxx086 was initially 

filed as a claim for a recurrence of the December 14, 2001 injury under File No. xxxxxx459. OWCP, however, 

determined that appellant was claiming a new injury and adjudicated the claim as a new occupational disease claim. 

OWCP File Nos. xxxxxx086 and xxxxx459 have been administratively combined with OWCP File No. xxxxxx459 

designated as the master file.

5 The limited-duty job was designed to meet appellant’s work restrictions with regard to his accepted December 14, 

2001 employment injury. Appellant’s restrictions included sedentary work that did not involve repetitive bending or 

lifting greater than 20 pounds. He was also limited to no more than two hours per day of lifting and bending/stooping. 

Upon resuming work on June 13, 2011 appellant was expected to participate in a five-day call center agent training 

program. His return to work was short-lived, lasting only two days.
3

Additionally, Dr. Warren D. Yu, a Board-certified orthopedic surgeon, examined appellant 

on March 1, 2013, and diagnosed work-related L5-S1 left-sided radiculopathy. He recommended 

a microdiscectomy at L5-S1. 

Appellant also submitted follow-up treatment records and reports from Dr. Schuler dated 

April 9, May 16 and 30, and October 8, 2013. 

In a letter dated December 23, 2013, received on January 21, 2014, appellant requested 

reconsideration. He challenged OWCP’s reliance on Dr. Obianwu’s June 1, 2012 opinion, and 

highlighted Dr. Schuler’s treatment records covering the period January through October 2013. 

Appellant also noted the latest EMG/NCV study results showed left-sided L5-S1 radiculopathy. 

OWCP subsequently received February 2014 treatment notes from Dr. Schuler, which 

included a recent x-ray report. When he last saw appellant on February 27, 2014, Dr. Schuler 

noted that OWCP approved the requested surgery, but a new magnetic resonance imaging (MRI)

scan was necessary before proceeding with surgery.

By decision dated March 31, 2014, OWCP denied appellant’s request for reconsideration, 

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

Appellant appealed to the Board. By decision dated August 21, 2015, the Board affirmed 

the March 31, 2014 decision in part and set aside the decision in part. The Board found that as

OWCP received appellant’s request for reconsideration on January 21, 2014, more than one year 

after the January 7, 2013 merit decision terminating wage-loss compensation, it was untimely 

filed. However, the Board found that OWCP’s March 31, 2014 decision was not in posture with 

regard to whether appellant demonstrated clear evidence of error as it did not properly explain its 

findings in accordance with 20 C.F.R. § 10.126. The Board remanded the case for a proper review 

of the evidence and issuance of an appropriate final decision on the issue of whether appellant 

presented clear evidence of error.6 

While the case was pending before the Board, appellant continued to submit additional 

evidence, including physical therapy notes dated August 29, September 2, 9, 14, 16, 18, 25, and 

October 2, 7, 10, 13, and 30, 2014.

Dr. Schuler provided progress notes and diagnostic studies dated January 8, February 9 and

27, April 9, May 16 and 30, and October 8, 2013.

OWCP received MRI scan reports dated March 2, 2011, September 7, 2012, and 

November 25, 2015. Also received were EMG reports dated March 30 and August 3, 2011, 

January 25, 2013, March 14, 2014, and June 26, 2015.

In a June 4, 2015 report, Dr. Schuler noted appellant’s complaints of low back pain and 

examined appellant. He diagnosed lumbar segmental instability, lumbar spinal stenosis, lumbar 

radiculitis, and foot drop. Dr. Schuler recommended additional treatment to include surgical 

 

6 Supra note 3.
4

intervention. He also provided a diagnostic addendum and described the lumbar x-rays, which he 

noted confirmed the lumbar segmental instability consistent with L3-4, L4-5, and L5-S1.

In a September 1, 2015 report, Dr. Schuler diagnosed lumbar disc herniation, lumbar 

stenosis, lumbar spondylosis, sciatica, and segmental instability. He recommended therapy to 

mobilize the sacroiliac joint and to proceed with microdermabrasion to alleviate the ongoing nerve 

compression. Dr. Schuler noted that appellant was working in the information technology (IT)

field, not engaged in heavy labor. He indicated that this was tolerable, but he had ongoing daily 

persistent pain down the left lower extremity.

In a September 1, 2015 addendum, Dr. Schuler noted that x-rays showed marked disc 

collapse at the L5-S1 and at L4-5 with foraminal stenosis in addition to the midline stenosis from 

the herniation seen on the 2012 MRI scan.

In a December 17, 2015 report, Dr. Schuler diagnosed: radiculopathy, lumbar region; 

spinal instabilities; myositis, unspecified; other spondylosis with radiculopathy, lumbar region;

osseous and subluxation stenosis of intervertebral foramina of lumbar region; connective tissue 

and disc stenosis of intervertebral foramina of lumbar region; connective tissue stenosis of neural 

canal of lumbar region; low back pain; and spondylolisthesis, lumbar region. He indicated that 

they were scheduling a two-level anterior lumbar interbody fusion at L4-5 as well as L5-S1 with 

posterior instrumental fusion. Dr. Schuler also provided an addendum of the same date.

In a report dated January 28, 2016, he explained that appellant was injured on June 13, 

2011 while at work. Dr. Schuler noted that appellant’s claim was accepted for aggravation of 

radiculopathy at L5. He advised that appellant had ongoing back problems since that time, and 

they had progressively worsened and persisted. Dr. Schuler explained that as a result, appellant 

was in need of surgical treatment to include stabilization, decompression, instrumentation and 

fusion. He advised that they had exhausted nonsurgical means. Dr. Schuler reiterated that it was 

a persistent problem stemming from the injury of June 13, 2011, and was the basis for appellant to 

undergo anterior decompression, interbody fusion followed by posterior instrumentation and 

fusion at levels L4-5 and L5-S1. He explained that the discography revealed marked disruption at 

L4-5 and L5-S1 with pain provocation and onset at the adjacent levels, which would allow him to 

decompress the spine, nerves and stabilize the instability. Dr. Schuler repeated the request for 

surgery, which included a two-level anterior approach, followed by two-level posterior with 

decompression. He opined that he was optimistic that they would be able to permanently solve 

appellant’s problem and return him to full gainful employment.

In a May 25, 2016 decision, OWCP denied appellant’s request for reconsideration, finding 

that it was untimely filed and failed to demonstrate 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.7 OWCP has discretionary authority in this regard and has imposed certain 

 

7 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 own motion or on application.” 5 U.S.C. § 8128(a).
5

limitations in exercising its authority.8 One such limitation is that for merit decisions issued on or 

after August 29, 2011, the request for reconsideration must be “received” by OWCP within one 

year of the date of the decision for which review is sought.9 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).10

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.”

11

 

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

was decided by OWCP.12 The evidence must be positive, precise, and explicit and it must be 

apparent on its face that OWCP committed an error. It is not enough to merely show that the 

evidence could be construed to produce a contrary conclusion.13 Evidence that does not raise a 

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

clear evidence of error.14 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 shift the weight of the evidence in favor of the claimant and raise a substantial 

question as to the correctness of OWCP’s decision.15 Where a request is untimely and fails to 

demonstrate clear evidence of error, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.16

ANALYSIS

The Board finds that OWCP properly determined that appellant’s January 21, 2014 request 

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

As held in the prior Board decision, appellant’s January 21, 2014 request for 

reconsideration was untimely filed as it was received more than one year after the January 7, 2013 

merit decision. With respect to findings made in the Board’s prior decision, those matters are res 

 

8 20 C.F.R. § 10.607.

9

Id. at § 10.607(a). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.4 (February 2016).

10 Id. at Chapter 2.1602.4b.

11 20 C.F.R. § 10.607(b).

12 Id.

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

14 See Jesus D. Sanchez, 41 ECAB 964 (1990).

15 Thankamma Mathews, 44 ECAB 765, 770 (1993).

16 20 C.F.R. § 10.608(b).
6

judicata absent any further review by OWCP under section 8128 of FECA.17 Consequently, 

appellant must demonstrate clear evidence of error on the part of OWCP in denying his claim.

In a letter dated December 23, 2013, appellant requested reconsideration and challenged 

OWCP’s reliance on Dr. Obianwu’s June 1, 2012 opinion. In support of this contention, he 

submitted treatment records from Dr. Schuler dated from January through October 2013, noting

that the latest EMG/NCV study results showed left-sided L5-S1 radiculopathy. Appellant’s 

argument regarding OWCP’s reliance on Dr. Obianwu lacks probative value as Dr. Obianwu 

acknowledged that appellant had an unresolved condition related to his L5-S1 disc herniation, 

however, he also opined that this condition did not preclude appellant from resuming work as a 

call center agent. The Board further notes that the issue in the present case is medical in nature 

and appellant did not explain how the medical evidence from Dr. Schuler raised a substantial 

question as to the correctness of OWCPs January 7, 2013 decision. Therefore, the Board finds 

that appellant’s argument does not establish clear evidence of error on the part of OWCP.

OWCP also received progress notes, reports, and diagnostic studies from Dr. Schuler, 

dated from January 2013 through January 2016, where he continued to note appellant’s ongoing 

complaints of lower back pain and the need for additional treatment, including surgical 

intervention, related to appellant’s January 13, 2011 work injury. In a September 1, 2015 report,

Dr. Schuler diagnosed lumbar disc herniation, lumbar stenosis, lumbar spondylosis, sciatica, and 

segmental instability. However, with the exception of lumbar disc herniation, these conditions 

have not been accepted by OWCP. Additionally, Dr. Schuler noted that, despite his diagnoses and 

appellant’s ongoing complaints of back and lower extremity pain, appellant continued to tolerate 

light-duty work in the IT field. He further opined in a January 28, 2016 report that he was 

optimistic that additional surgery would permanently solve appellant’s problem and return him to 

full gainful employment. 

The Board finds that this evidence does not raise a substantial question as to the correctness 

of OWCP’s merit decision, as it is not positive, precise, and explicit in manifesting on its face that 

OWCP committed an error in terminating his wage-loss compensation.

18

Likewise, reports from Dr. Yu dated March 1, 2013 which recommended a 

microdiscectomy at L5-S1, and progress notes from Dr. Momtaz which diagnosed an array of 

medical conditions that have not been accepted by OWCP, do not raise a substantial question as 

to the correctness of OWCP’s merit decision.

Clear evidence of error is intended to represent a difficult standard. Evidence, such as a

detailed, well-rationalized medical report which, if submitted before the merit denial decision was 

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

 

17 See H.G., Docket No. 16-1191 (issued November 25, 2016); Robert G. Burns, 57 ECAB 657 (2006).

18 See A.S., Docket No. 16-0902 (issued September 28, 2016).
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insufficient to demonstrate clear evidence of error.19 The Board makes an independent 

determination of whether a claimant has submitted clear evidence of error on the part of OWCP.20

The Board finds that this evidence does not raise a substantial question as to the correctness 

of OWCP’s January 7, 2013 merit decision. 

Appellant also submitted physical therapy notes dated August 29, September 2, 9, 14, 16, 

18, 25, and October 2, 7, 10, 13, and 30, 2014. These notes are immaterial as physical therapists 

are not considered physicians under FECA.21 Their reports and opinions do not constitute 

probative medical evidence sufficient to demonstrate clear error by OWCP.22

On appeal appellant argues that OWCP did not review the evidence submitted on 

reconsideration, that OWCP reviewed the evidence with a negative bias upon consideration, and 

that OWCP considered the evidence repetitious when it should have been treated as new evidence. 

However, as explained above, OWCP reviewed the evidence submitted and properly denied 

appellant’s untimely request for reconsideration as it failed to demonstrate clear evidence of error.

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.

 

19 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5(a) (February 2016).

20 Nancy Marcano, 50 ECAB 110 (1998).

21 R.S., Docket No. 15-0988 (issued August 12, 2015).

22 5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jérre R. Rinehart, 45 ECAB 518 (1994); Barbara J. 

Williams, 40 ECAB 649 (1989); Jane A. White, 34 ECAB 515 (1983).
8

ORDER

IT IS HEREBY ORDERED THAT the May 25, 2016 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: January 28, 2019

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