United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.C., Appellant

and

DEPARTMENT OF THE ARMY, MEDICAL 

COMMAND, Fort Knox, KY, Employer

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Docket No. 18-1115

Issued: October 28, 2019

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 10, 2018 appellant filed a timely appeal from an April 6, 2018 nonmerit decision 

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

from OWCP’s last merit decision, dated February 29, 2012, 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.3

 

1 On her application for review (Form AB-1), appellant timely requested an oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated February21, 2019, the Board exercised its discretion and denied her request finding that 

the appeal could be adequately addressed in a decision based on a review of the case record. Order Denying Request 

for Oral Argument, Docket No. 18-1115 (issued February21, 2019).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the April6, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
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 April 7, 1994 appellant, then a 44-year-old registered nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on April 7, 1994 she fell backwards and sustained injuries while 

in the performance of duty. She explained that the injury occurred when the computer table she 

was leaning against fell backwards which in turn caused her to fall. OWCP accepted the claim for 

lumbar strain and right vestibular dysfunction. Prior to the employment injury, the record reflects 

that appellant had a history of back and balance problems.4 Appellant stopped work on April 7, 

1994 and returned to light-duty work on June 3, 1994. She retired on disability effective 

May 23, 1996. On March 20, 1997, in a signed election form, appellant elected to receive FECA 

benefits effective May 28, 1996 in lieu of Office of Personnel Management (OPM) benefits. 

OWCP accordingly placed appellant on the periodic compensation rolls. 

OWCP scheduled appellant for second opinion examinations with orthopedic surgeons and 

otolaryngologists.

5

 It advised her that an appointment had been scheduled for her in order to assess 

the status of her accepted conditions, the extent of disability, and appropriate medical treatment. 

OWCP explained that appellant’s entitlement to compensation could be suspended, pursuant to 5 

U.S.C. § 8123(d), if she refused to submit to or obstructed an examination. It scheduled an 

otolaryngologist second opinion appointment on June 20, 2011 and rescheduled the appointment 

on July 5 and August 10, 2011 either to accommodate appellant’s requests to change the 

appointment or due to her failure to keep the appointment.

By letter dated November 29, 2011, OWCP referred appellant to Dr. Robert D. Woods, II, 

a Board-certified otolaryngologist, for an appointment on January 9, 2012 at 2:00 p.m., to 

determine the nature and extent of any residuals of her accepted employment-related conditions 

and whether she was capable of returning to full-duty employment. It also arranged transportation 

for her January 9, 2012 appointment. Appellant insisted that she needed to see a neurosurgeon

due to her back conditions.

On January 10, 2012 QTC Medical Services, OWCP’s scheduling contractor, advised 

OWCP that appellant had not appeared for her scheduled January 9, 2012 examination with

Dr. Woods.

 

4

In 1972 appellant underwent a spinal fusion at the L4-S1 level, a result of nonemployment-related 

spondylolisthesis. In 1975, she had a fusion at the L5-S1 level. Appellant’s balance problems date back to 1982.

5 Although appellant attended a May 17, 2011 rescheduled appointment, the record is devoid of a medical report 

for that appointment.
3

In a January 12, 2012 call, appellant again advised OWCP that she needed to see a 

neurosurgeon, not an otolaryngologist. She indicated that seeing any other kind of physician was 

a waste of time.

On January 12, 2012 OWCP provided notice to appellant that it proposed to suspend her 

wage-loss compensation and medical benefits, pursuant to 5 U.S.C. § 8123(d), based upon her 

failure to attend the scheduled January 9, 2012 second opinion examination. It advised her that 

she had 14 days to provide a written explanation of her reasons, with substantive corroborating 

evidence, for failing to attend the scheduled examination. OWCP explained that an employee’s 

right to compensation under FECA shall be suspended during the period of a refusal or obstruction 

of an examination by a physician.

In a January 23, 2012 statement, appellant advised OWCP that she did not mind going to 

“legitimate physicians to which OWCP sent her.” Appellant submitted copies of letters she sent 

to numerous physicians, a copy of an April 5, 2011 letter previously of record, and medical 

evidence pertaining to her back conditions.

An unsigned June 28, 2011 note was submitted from Avicenna Pain Relief, PLLC 

indicating that appellant’s clinical status predisposed her to increased pain and distress and that 

traveling long distances would expose her to acute exacerbation of chronic pain. On the note, 

appellant handwrote that she wanted to comply with all orders from OWCP. She also indicated 

that she would like to be sent to a closer location for evaluation.

On January 31, 2012 OWCP acknowledged appellant’s written statement agreeing to 

attend a second opinion examination. In a February 23, 2012 letter, it advised appellant that an 

appointment had been scheduled with a specialist in the field of otolaryngology or neurology in 

order to assess the nature of her employment-related conditions. OWCP also explained that her 

entitlement to compensation could be suspended, pursuant to 5 U.S.C. § 8123(d), if she refused to 

submit to or obstructed the examination. In a February 27, 2012 telephone call to appellant, it

clarified that she would need to see “an orthopedic and a neurologist and/or an otolaryngologist.”

By decision dated February 29, 2012, OWCP finalized its proposed suspension of wageloss compensation and medical benefits, effective February 27, 2012. It noted that it had directed 

appellant on November 29, 2011 to report for the examination scheduled on January 9, 2012 with

Dr. Woods, but that she had not attended the examination or shown good cause for her failure to 

attend the examination. OWCP indicated that appellant had failed to establish good cause for her 

failure to attend the scheduled examination and therefore, pursuant to 5 U.S.C. § 8123(d), her 

compensation and medical benefits were suspended, effective February 27, 2012. It advised 

appellant that her benefits would be reinstated only after verification that she attended and fully 

cooperated with the directed examination. 

Following the February 29, 2012 decision, in a March 9, 2012 letter, OWCP scheduled

appellant’s second opinion appointment with Dr. Nino R. Lentini, a Board-certified orthopedic 

surgeon, for March 16, 2012. It advised appellant that once it received confirmation that she had 

attended and cooperated in the second opinion examination, then it would reinstate her 

compensation. OWCP also made transportation arrangements for appellant’s March 16, 2012 
4

second opinion appointment. Appellant did not attend the rescheduled second opinion 

appointment. 

On June 30, 2017 appellant requested an oral hearing by a representative of OWCP’s 

Branch of Hearings and Review. By decision dated August 8, 2017, a hearing representative 

denied appellant’s request for an oral hearing. She found that the request was untimely filed as it 

was not postmarked within 30 days of the issuance of the February 29, 2012 decision. The hearing 

representative also exercised her discretion and further found that the issue in the case could 

equally well be addressed through the reconsideration process.6

On February 15, 2018 appellant requested reconsideration. In her letter, she indicated that 

she had contacted OWCP when her compensation benefits abruptly stopped and contended that 

she had not been given a chance to appeal the decision. Appellant indicated that she wished to 

initiate the appeal as she had done in 2012. She alleged that she had previously sent an appeal 

request within the 30-day period, but was denied the right to do so. Appellant indicated that for 

the last six years she has lived with what she believed was “some form of retaliation for an injury 

she did not cause.” She also indicated her desire to fully comply with OWCP’s request to attend 

the second opinion evaluation. 

In support of her request, appellant submitted a certified mail receipt dated April 2, 2012 

along with a letter dated April 16, 2012 indicating that the certified receipt along with her 

January 23, 2012 letter, previously sent to OWCP with a copy attached, served as written proof

that she had repeatedly gone to OWCP’s physicians, but that she was close to total paraplegia due 

to her back conditions. In letters dated June 30, 2017 and March 6, 2018, appellant expressed her 

frustration with OWCP, its physicians, and the lack of follow-up on her back conditions. 

Diagnostic tests and medical reports, some previously of record, regarding appellant’s back and 

balance conditions were also submitted.

By decision dated April 6, 2018, OWCP denied her request for reconsideration as 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 

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 

 

6 On August 30, 2017 the August8, 2017 decision was returned to OWCP with a notation which indicated that it 

was not deliverable as addressed and was unable to forward. The record reflects that appellant did not advise OWCP 

of her new address in writing until February 15, 2018.

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).

8

20 C.F.R. § 10.607.
5

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 This entails a limited review by 

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

previously of record and whether the new evidence demonstrates clear error on the part of OWCP. 

To demonstrate clear evidence of error, the evidence submitted 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

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP made 

an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, 

well-rationalized medical report which, if submitted before the denial was issued, would have 

created a conflict in medical opinion requiring further development, is not clear evidence of error. 15 

The Board makes an independent determination of 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, 

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

 

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 R.C., Docket No. 17-0198 (issued January 28, 2019); Leona N. Travis, 43 ECAB 227 (1991).

14 See E.R., Docket No. 18-0667 (issued August1, 2019); Docket No. 18-0703 (issued November 14, 2018); 

Robert G. Burns, 57 ECAB 657 (2006).

15 See E.R., id.; J.S., Docket No. 16-1240 (issued December 1, 2016). 

16 D.S., Docket No. 17-0407 (issued May 24, 2017).
6

OWCP’s regulations and procedures establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. 17 The most 

recent merit decision was OWCP’s February 29, 2012 decision which suspended appellant’s 

compensation benefits effective February 27, 2012. As her request for reconsideration was not 

received by OWCP until February 15, 2018, more than one year after the February 29, 2012 merit 

decision, the Board finds that it was untimely filed. Because appellant’s request was untimely, she 

must demonstrate clear evidence of error on the part of OWCP in having suspended her 

compensation benefits effective February 27, 2012. 

The Board further finds that appellant’s reconsideration request failed to demonstrate clear 

evidence of error on the part of OWCP in its last merit decision of February 29, 2012. In that 

decision, OWCP suspended appellant’s compensation benefits effective February 27, 2012 as she 

had not attended an OWCP directed second opinion evaluation with Dr. Woods, a Board-certified 

otolaryngologist.

Appellant claimed that she had previously sent an appeal request within the 30-day period,

but was denied the right to do so. The record is devoid of any evidence that appellant had filed a 

request for reconsideration within one calendar year from OWCP’s February 29, 2012 decision. 

The record also does not support appellant’s contentions that she had repeatedly gone to OWCP’s 

physicians. 

In support of her untimely request for reconsideration, appellant contended that she was 

close to total paraplegia. She presented new factual and medical evidence. However such 

evidence is not relevant to the issue at hand as it does not support that OWCP’s February 29, 2012 

decision was incorrect at the time it was issued. Appellant submitted several diagnostic tests and 

medical reports regarding her back and balance conditions. However, a review of such reports fail 

to indicate whether her employment-related conditions prevented her from attending OWCP’s 

directed appointment to Dr. Woods in January 2012. Thus, the Board finds that the evidence 

submitted in support of the untimely request for reconsideration is insufficient to shift the weight 

of the evidence in favor of appellant’s claim or to raise a substantial question that OWCP erred in 

its February 29, 2012 decision.18 Accordingly, the Board finds that OWCP properly denied 

appellant’s reconsideration request, as it was untimely filed and failed to demonstrate clear 

evidence of error.

19

CONCLUSION

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

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

 

17 20 C.F.R. § 10.607(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.4(b) (February 2016).

18 See D.Y., Docket No. 19-0565 (issued August13, 2019). 

19 The record reflects that on March 12, 2018 appellant attended an orthopedic second opinion evaluation. By letter 

dated April3, 2018, OWCP requested that appellant complete and return Form CA-1032, which was necessary prior 

to the reinstatement of her compensation benefits. 
7

ORDER

IT IS HEREBY ORDERED THAT the April 6, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 28, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board