United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

DEPARTMENT OF AIR FORCE, HILL AIR 

FORCE BASE, Ogden, UT, Employer 

__________________________________________ 

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Docket No. 16-0983 

Issued: August 24, 2016 

Appearances: Case Submitted on the Record 

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 8, 2016 appellant, through counsel, filed a timely appeal from a March 4, 2016 

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

180 days has elapsed from the last merit decision dated January 12, 2015 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 to review the merits of the claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

reconsideration was not timely filed and failed to demonstrate clear evidence of error. 

FACTUAL HISTORY 

On September 23, 2014 appellant, then a 59-year-old sheet metal mechanic, filed an 

occupational disease claim (Form CA-2), alleging that, while using air hammers, vibrating and 

rotational tools, and equipment while in the performance of duty, he developed a large tear of the 

left superior aspect of the labrum, a superior labrum anterior and posterior (SLAP) tear and 

acromioclavicular joint degeneration. On June 14, 2013 he first became aware of his condition 

and its relation to his federal employment. Appellant stopped work on July 17, 2013 and 

returned to work on September 17, 2013. 

Appellant submitted a June 14, 2013 left shoulder magnetic resonance arthrogram which 

revealed mild supraspinatus tendinosis, no rotator cuff tear, type 5 SLAP tear associated with a 

paralabral cyst and mild acromioclavicular joint degenerative disease. 

Appellant was treated by Dr. Jeffrey Sorenson, a Board-certified orthopedist, on July 9, 

2013 for left shoulder pain. His history was significant for right shoulder rotator cuff repair in 

April 2012. Dr. Sorenson noted left shoulder findings of positive labral click test and pain and 

crepitance with shoulder range of motion. On July 17, 2013 he performed a left shoulder 

arthroscopic anterior labral reconstruction and a SLAP repair. Dr. Sorenson diagnosed left 

shoulder SLAP tear with a Bankert or anterior labral tear. He noted that appellant was doing 

well postoperatively but continued to have pain and referred him for physical therapy. On 

February 10, 2014 Dr. Sorenson performed a left shoulder arthroscopic anterior labral repair with 

placement of a pain catheter in the subacromial space. He diagnosed left shoulder recurrent 

anterior labral tear. Appellant also submitted physical therapy notes and records from a nurse 

practitioner. 

By letter dated December 8, 2014, OWCP advised appellant of the type of factual and 

medical evidence needed to establish his claim. It noted that the evidence submitted was 

insufficient to support that he was injured while performing work duties. OWCP asked that 

appellant describe in detail all work activities that contributed to his condition and describe how 

often he performed such activities. 

The employing establishment submitted a notification of personnel action (SF-50) dated 

July 8, 2013 noting that appellant was furloughed due to the Budget Control Act of 2011. 

By decision dated January 12, 2015, OWCP denied appellant’s claim because the 

evidence of record did not support that the injury and or events occurred as alleged.3

Appellant continued to submit medical evidence, including records from a nurse 

practitioner and a magnetic resonance imaging (MRI) scan of the right shoulder dated August 1, 

 3

 The Board notes that OWCP initially issued a decision on January 9, 2015, but reissued it on January 12, 2015. 
3

2014 which revealed mild articular surface fraying, partial thickness tearing at the infraspinatus 

attachment and postsurgical artifact along the anterior joint line with evidence of previous 

laprocapsular repair. 

Also provided were reports from Dr. Lonnie Paulos, a Board-certified orthopedist. On 

September 30, 2014 he performed a right shoulder arthroscopy with debridement, chondroplasty 

of the capsular release, humeral head resurfacing, anterior Bankert and capsular shift of the 

shoulder. In reports dated October 8 and 22, and December 17, 2014, Dr. Paulos noted 

appellant’s postoperative progress and recommended physical therapy. He noted that appellant 

was complaining of left shoulder pain as he was using it more after his recent right shoulder 

surgery. Dr. Paulos diagnosed traumatic glenohumeral arthritis and left compensatory shoulder 

pain. In a January 9, 2015 report, he noted treating appellant on May 14, 2014 for right shoulder 

pain and was last seen on December 17, 2014 at which time he reported having trouble with his 

left shoulder as well. Dr. Paulos advised appellant to avoid heavy lifting and overhead activities 

and continue physical therapy. On January 14, 2015 he noted appellant’s postsurgical status. 

On an appeal form and letter dated January 11, 2016, and received on February 1, 2016, 

appellant requested reconsideration. In a January 11, 2016 statement, he noted over a year delay 

in responding to OWCP’s decision because he had two right shoulder surgeries and three left 

shoulder surgeries. Appellant indicated that mishandling and positioning of his body caused his 

right shoulder to dislocate and he overcompensated with his left shoulder which was now 

injured. He noted that reinjury while forced back to work too early had prolonged his recovery. 

Appellant indicated that daily use of tools contributed to his condition and spinal surgery. He 

asserted that his treatment by OWCP was unacceptable. Appellant attached a copy of OWCP’s 

decision dated January 12, 2015 which was a duplicate of OWCP’s decision dated 

January 9, 2015.4

 He also submitted a position description for a sheet metal mechanic dated 

December 14, 1992. 

By decision dated March 4, 2016, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.5

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.6

 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.7

 4 Id. 

5

 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

6

 20 C.F.R. § 10.607(a). 

7 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
4

 OWCP may not deny a reconsideration request solely on the grounds that it was not 

timely filed. When a claimant’s application for review is not timely filed, OWCP must 

nevertheless undertake a limited review to determine whether it establishes clear evidence of 

error. If an application demonstrates clear evidence of error, it will reopen the case for merit 

review.8

To establish clear evidence of error, a claimant must submit evidence that is relevant to 

the issue that was decided by OWCP,9

 is positive, precise, and explicit, and manifests on its face 

that OWCP committed an error.10 The evidence must not only be of sufficient probative value to 

create a conflict in medical opinion or establish a clear procedural error, but must also shift the 

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

correctness of OWCP’s decision for which review is sought. Evidence that does not raise a 

substantial question is insufficient to establish clear evidence of error. It is not enough merely to 

show that the evidence could be construed so as to produce a contrary conclusion. A 

determination of whether the claimant has established clear evidence of error entails a limited 

review of how the evidence submitted with the reconsideration request bears on the evidence 

previously of record.11

ANALYSIS 

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

application for review. As noted, an application for reconsideration must be received within one 

year of the date of OWCP’s decision for which review is sought.12 As appellant’s request for 

reconsideration was not received by it until February 1, 2016, more than one year after issuance 

of the January 12, 2015 merit decision by OWCP, it was untimely. Appellant argued that he was 

unable to file a timely request for reconsideration because he has had six surgeries in four and a 

half years. Section 10.607(a), however, sets forth the time limitation period of one year. Late 

filing may not be excused by extenuating circumstances, except if appellant establishes through 

probative medical evidence that she was unable to communicate in any way, and her testimony is 

necessary to obtain modification.13 The evidence of record does not establish any extenuating 

circumstances. Appellant has not submitted medical evidence to substantiate that she was unable 

to communicate in any way to request reconsideration. Consequently, he must demonstrate clear 

evidence of error by OWCP denying his claim for compensation. 

 8 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of 

error” is intended to represent a difficult standard). 

9 Dean D. Beets, 43 ECAB 1153 (1992). 

10 Leona N. Travis, 43 ECAB 227 (1991). 

11 J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010). 

12 20 C.F.R. § 10.607(a). 

13 Id. at § 10.607(c). 
5

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

OWCP. In a reconsideration request dated January 11, 2016 and received on February 1, 2016, 

appellant disagreed with OWCP’s decision denying his claim for compensation. In his 

January 11, 2016 statement, appellant noted that mishandling and positioning of his body caused 

his right shoulder to dislocate and he overcompensated by using his left shoulder which was now 

injured. He noted that reinjury while forced back to work too early has prolonged his recovery. 

Appellant noted that the daily use of hand tools contributed to his condition and spinal surgery. 

He stated the treatment by OWCP was unacceptable. The Board notes that while appellant 

addressed his disagreement with OWCP’s decision denying his claim for an occupational 

disease, his general allegations do not establish clear evidence of error as they do not raise a 

substantial question as to the correctness of OWCP’s most recent merit decision which denied 

appellant’s claim for an occupational disease. The Board notes that clear evidence of error is 

intended to represent a difficult standard.14 

Appellant also submitted evidence from Dr. Paulos, a diagnostic test report, and notes 

from a nurse practitioner. However, this evidence is insufficient to show clear evidence of error 

as it does not address the underlying factual issue in this case.15 Even a well-rationalized 

medical report which, if timely filed, would have created a conflict in medical evidence is not 

sufficient to establish error in the prior decision.16 Appellant also submitted a position 

description for a sheet metal mechanic dated December 14, 1992. This document is not germane 

to the reason for the denial of the claim as it does not address how the claimed injury occurred. 

This evidence is not so positive, precise and explicit that it manifests on its face that OWCP 

committed an error. Therefore, this evidence is insufficient to raise a substantial question as to 

the correctness of OWCP’s decision. 

For these reasons, appellant has not established clear evidence of error by OWCP in its 

January 12, 2015 decision. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. 

 14 D.G., 59 ECAB 455 (2008). 

15 See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the 

claim was denied is insufficient to demonstrate clear evidence of error). 

16 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e) 

(December 2011). 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 4, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 24, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board