United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.R., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Fort Dix, NJ, Employer

__________________________________________

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Docket No. 19-0591

Issued: August 14, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 21, 2019 appellant, through counsel, filed a timely appeal from a 

September 17, 2018 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated August 7, 

2017, 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.

 

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 untimely filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY

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

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On April 1, 2005 appellant, then a 35-year-old legal instruments examiner, filed a traumatic 

injury claim (Form CA-1) alleging that on March 2, 2005 she injured her knees when she fell on 

ice while in the performance of duty. OWCP accepted the claim for bilateral post-traumatic 

chondromalacia of the knees, lumbar sprain, thoracic sprain, and lumbar radiculopathy. 

On October 1, 2016 appellant filed a claim for a schedule award (Form CA-7). Following 

development of the evidence, OWCP determined that a conflict in medical evidence existed and 

referred her to Dr. Roy Friedenthal, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

Based on the report of Dr. Friedenthal, by decision dated January 25, 2008, OWCP granted 

appellant a schedule award for three percent permanent impairment of each lower extremity. On 

January 31, 2008 appellant requested an oral hearing. By decision dated July 30, 2008, an OWCP 

hearing representative affirmed the January 25, 2008 decision. 

Appellant appealed to the Board. By decision dated August 24, 2009, the Board set aside 

OWCP’s January 25 and July 30, 2008 decisions.4 The Board found that Dr. Friedenthal’s opinion 

was not entitled to special weight as his findings were outside the statement of accepted facts.

OWCP referred appellant to Dr. William A. McNamara, a Board-certified orthopedic 

surgeon, for a new impartial medical examination. Based on Dr. McNamara’s opinion, by decision 

dated October 22, 2012, it found that she had no more than the previously awarded three percent 

permanent impairment of each lower extremity. 

On October 31, 2012 appellant, through counsel, requested an oral hearing. Following a 

preliminary review, on December 12, 2012, an OWCP hearing representative vacated the 

October 22, 2012 decision. He found that OWCP had improperly referred appellant to

Dr. McNamara without first attempting to obtain clarification from Dr. Friedenthal. The hearing 

representative advised that Dr. McNamara’s opinion should be excluded from the record.

OWCP referred appellant to Dr. Friedenthal for a new impartial medical examination. 

 

3 Docket No. 09-0227 (issued August 23, 2009); Docket No. 16-1613 (issued February 7, 2017).

4

Id.
3

Based on Dr. Friedenthal’s report, by decision dated August 27, 2013, OWCP granted 

appellant a schedule award for an additional three percent permanent impairment of each upper 

extremity. 

On September 10, 2013 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

By decision dated March 20, 2014, an OWCP hearing representative vacated the 

August 27, 2013 decision. She found that OWCP had failed to inform Dr. Friedenthal that

Dr. McNamara’s report was excluded. The hearing representative determined that OWCP should 

refer appellant to a new impartial medical examiner (IME).

On April 10, 2015 OWCP referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for an impartial medical examination. 

By decision dated November 19, 2015, OWCP found that appellant was not entitled to a 

schedule award for an additional impairment of either lower extremity. It found that the special 

weight of the evidence, represented by Dr. Askin’s report, established that she had no impairment 

as a result of her accepted employment injury. 

On November 25, 2015 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. By decision dated April 29, 2016, an OWCP hearing representative 

affirmed the November 19, 2015 decision. 

Appellant appealed to the Board. By decision dated February 7, 2017, the Board set aside 

the April 29, 2016 decision.5 The Board found that OWCP failed to demonstrate that it had 

followed its procedures in selecting Dr. Askin as the IME.

On June 5, 2017 OWCP referred appellant to Dr. Philip Bobrow, a Board-certified 

orthopedic surgeon, for an impartial medical examination.

On June 6, 2017 counsel advised OWCP that appellant’s address had changed. 

In a July 12, 2017 impairment evaluation, Dr. Bobrow diagnosed thoracolumbar strain by 

history, lumbar degenerative disc disease, status post bilateral knee contusions, and bilateral 

moderate nontraumatic osteoarthritis of the knees. He found that appellant had no “residual 

permanent disability as a result of the injury of March 2, 2005” based on his review of the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment, 

(A.M.A., Guides).

6

By decision dated August 7, 2017, OWCP denied appellant’s request for an increased 

schedule award. It found that the opinion of Dr. Bobrow constituted the special weight of the 

evidence and established that she had no more than the previously awarded six percent permanent 

 

5 See supra note 3.

6 A.M.A., Guides (6th ed. 2009).
4

impairment of each lower extremity. OWCP sent the decision to appellant at her former address 

and to counsel at his correct address. 

On July 9, 2018 counsel requested a copy of the case record. OWCP provided him with a 

copy on August 8, 2018. 

On August 20, 2018 appellant, through counsel, requested reconsideration. In an 

August 18, 2018 statement, he requested that OWCP reopen the case under 5 U.S.C. § 8128(a). 

Counsel asserted that he had not received a copy of the August 7, 2017 decision and that it was 

not properly addressed to appellant. He further maintained that Dr. Bobrow failed to rate her 

impairment using the A.M.A., Guides.

By decision dated September 17, 2018, OWCP denied appellant’s request for 

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

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.7

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

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is filed within one year of the date of that decision.8 The 

one-year period for requesting reconsideration begins on the date of the original OWCP decision, 

but the right to reconsideration within one year also accompanies any subsequent merit decision 

on the issues, including any merit decision by the Board.9 Timeliness is determined by the 

document receipt date (i.e., the “received date” in OWCP’s integrated Federal Employees’

Compensation System.10 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.11

OWCP may not deny an application for review solely because the application was not

timely filed. When an application for review is untimely filed, it must nevertheless undertake a 

limited review to determine whether the application demonstrates clear evidence of error.12 

 

7 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.607(a); see also D.G., Docket No. 18-1038 (issued January 23, 2019).

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

10 Id. at Chapter 2.1602.4(b) (February 2016).

11 See R.L., Docket No. 18-0496 (issued January 9, 2019).

12 See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).
5

OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the 

claimant’s application for review demonstrates clear evidence of error on the part of OWCP.13

To demonstrate clear evidence of error, 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.14 

The Board notes that clear evidence of error is intended to represent a difficult standard.15 

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

is insufficient to demonstrate clear evidence of error.16 It is not enough merely to establish that 

the evidence could be construed so as to produce a contrary conclusion.17 This entails a limited 

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

clear error on the part of OWCP.18 The Board makes an independent determination as to whether 

a claimant has demonstrated clear evidence of error on the part of OWCP.19

ANALYSIS

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration 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 

request for reconsideration. The underlying issue is appellant’s entitlement to a schedule award, 

and thus the initial question is whether she has submitted an application for reconsideration or a 

request for an increased schedule award. If a claimant requests reconsideration of a schedule award 

decision and submits new and relevant evidence with respect to an increased permanent 

impairment, he or she may be entitled to a merit decision on the issue. However, if a claimant 

does not submit additional relevant evidence with respect to an increased schedule award, then 

OWCP may properly determine that he or she has filed an application for reconsideration of a 

schedule award decision.20 In this case, appellant has not submitted additional relevant evidence 

 

13 Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.1602.5(a) (February 2016).

14 G.G., Docket No. 18-1074 (issued January 7, 2019).

15 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., Docket No. 18-0496 (issued January 9, 2019).

16 E.B., Docket No. 18-1091 (issued December 28, 2018).

17 J.W., Docket No. 18-0703 (issued November 14, 2018).

18 P.L., Docket No. 18-0813 (issued November 20, 2018).

19 W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

20 C.R., Docket No. 17-0226 (issued June 26, 2018).
6

with respect to an increased permanent impairment and; therefore, OWCP properly considered her 

submission as an application for reconsideration.21

An application for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.22 As appellant’s request for reconsideration was not received 

by OWCP until August 20, 2018, more than one year after the issuance of its August 7, 2017 

decision, it was untimely filed. Consequently, she must demonstrate clear evidence of error by 

OWCP in its August 7, 2017 decision.23

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

OWCP in issuing its August 7, 2017 decision. The evidence and argument she submitted failed to 

raise a substantial question concerning the correctness of OWCP’s decision.24 Counsel contended 

that Dr. Bobrow had failed to provide an impairment rating using the A.M.A., Guides. In his 

July 12, 2017 impairment evaluation, however, Dr. Bobrow indicated that he had reviewed the 

provisions of the A.M.A., Guides in reaching his conclusion. Counsel’s allegation, consequently, 

is insufficient to raise a substantial question as to the correctness of OWCP’s decision.25

Counsel argued that OWCP improperly issued its August 7, 2017 as it was misaddressed 

to appellant. His contention, however, does not show that OWCP erred in denying her request for 

an increased schedule award. Additionally, appellant may request a schedule award or increased 

schedule award based on evidence of a new exposure or medical evidence showing progression of 

an employment-related condition resulting in permanent impairment or increased impairment.

Counsel also asserted that he failed to receive a copy of the August 7, 2017 decision. The 

decision, however, was properly addressed to him and there is no indication in the record that it 

was returned as undeliverable. Under the mailbox rule, a document mailed in the ordinary course 

of the sender’s business practices to the addressee’s last known address is presumed to be received 

by the addressee.26

On appeal counsel asserts that neither he nor appellant received a copy of the August 7, 

2017 decision and that OWCP failed to consider the arguments raised in his reconsideration 

request. As discussed, however, he has not raised an argument or submitted any evidence that 

manifests on its face that OWCP committed an error in denying appellant’s claim or provided 

 

21 Id.

22 20 C.F.R. § 10.607(a).

23 20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

24 See P.T., Docket No. 18-0494 (issued July 9, 2018).

25 Id.

26 See H.B., Docket No. 19-0405 (issued June 26, 2019).
7

evidence of sufficient probative value to raise a substantial question as to the correctness of 

OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of error.27

CONCLUSION

The Board finds that OWCP properly determined that appellant’s request for 

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

ORDER

IT IS HEREBY ORDERED THAT the September 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 14, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

27 See M.B., Docket No. 17-1505 (issued January 9, 2018).