United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mogadore, OH, Employer

__________________________________________

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Docket No. 19-1415

Issued: February 19, 2020

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 June 18, 2019 appellant filed a timely appeal from a December 20, 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 November 9, 2017, 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 to consider 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.

FACTUAL HISTORY

On August 3, 2010 appellant, then a 57-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained bilateral carpal tunnel syndrome due to factors of 

 

1 5 U.S.C. § 8101 et seq.
2

her federal employment. She noted that she first realized her condition and its relation to her 

federal employment on February 29, 2008. On the reverse side of the claim form, the employing 

establishment indicated that appellant retired from federal service on August 8, 2008. OWCP 

accepted her claim for bilateral carpal tunnel syndrome on August 24, 2010. 

Appellant submitted medical reports from Dr. Gary Pennington, a Board-certified plastic 

surgeon. Dr. Pennington noted that she underwent a right endoscopic carpal tunnel release on 

August 1, 2016 and a left endoscopic carpal tunnel release on October 10, 2016 to treat her 

accepted condition. The October 10, 2016 report noted that appellant would follow-up in 12 weeks 

in order to document her maximum medical improvement (MMI). 

On April 5, 2017 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated April 10, 2017, OWCP advised appellant of the deficiencies 

in her schedule award claim. It requested that she submit an impairment evaluation from her 

treating physician addressing whether she had attained MMI with an impairment rating according 

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

Impairment2(A.M.A., Guides). OWCP afforded appellant 30 days to respond. 

In a letter dated May 30, 2017, appellant advised OWCP that her treating physician was 

unable or unwilling to perform an impairment evaluation and she asked if OWCP would refer her 

for a second opinion evaluation. 

On August 25, 2017 OWCP referred appellant to Dr. Gerard Papp, a Board-certified 

orthopedic surgeon, for a second-opinion examination in order to provide an impairment rating in 

accordance with the sixth edition of the A.M.A., Guides.

3

 In a report dated September 21, 2017,

Dr. Papp determined that there was no evidence of permanent impairment in relation to her

bilateral carpal tunnel syndrome. He opined that appellant had reached MMI in her right wrist on 

August 1, 2017 and would reach MMI in her left wrist by October 10, 2017. On examination,

Dr. Papp noted pain in the hypothenar eminence of the hands, and indicated that this was unrelated 

to her original diagnosis. He further noted that appellant had experienced no pain over the past 

week in her left or right hands and that she presented with full range of motion in her wrists, good 

finger flexion and extension. 

On November 1, 2017 Dr. Arthur Harris, a Board-certified orthopedic surgeon serving as 

a district medical adviser (DMA), reviewed Dr. Papp’s September 21, 2017 report, the medical 

evidence of record, and a statement of accepted facts. He found that the date of MMI for the right 

upper extremity was August 1, 2017, as Dr. Papp indicated. Regarding the left upper extremity,

Dr. Harris found that, based on documentation of appellant’s subjective complaints, objective 

findings and clinical course for the left upper extremity, the date of MMI was the date of Dr. Papp’s

evaluation, September 21, 2017. The DMA provided that she had zero percent impairment in both 

the left and right upper extremity under the diagnosis-based impairment method in the A.M.A., 

 

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

3

Id.
3

Guides and that the A.M.A., Guides do not allow for impairment ratings to be calculated on ROM 

method for this diagnosis. 

By decision dated November 9, 2017, OWCP denied appellant’s claim for a schedule 

award, noting that she had not met her burden of proof to establish permanent impairment of a 

scheduled member or function of the body. 

On November 8, 2018 appellant requested reconsideration of OWCP’s November 9, 2017 

decision. In an attached statement, she provided that the DMA reviewed Dr. Papp’s September 21, 

2017 report before she was made aware of his evaluation. Had appellant been aware of the 

“discrepancies and deficiencies” in Dr. Papp’s evaluation before it was sent to the DMA, she 

would have requested a new evaluation before Dr. Harris’ review of the record. Appellant 

contended that Dr. Papp sped through the evaluation in less than 30 minutes, did not take proper 

note of her responses to the sensation and resistance testing, did not test her ability to grip, which 

she described as decreased, and ignored her concern over “occasional zingers, or stabs of pain,”

which emanated from her wrists. She also argued that Dr. Papp’s evaluation included incorrect 

statements regarding a three-year lapse in appointments with Dr. Nina Njus, even though she had

provided documentation proving that she had not missed any appointments. 

By decision dated December 20, 2018, OWCP denied appellant’s request for 

reconsideration of its November 9, 2017 decision finding that 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.4 This discretionary authority, however, is subject to certain restrictions.5 OWCP’s 

regulations6establish a one-year time limitation for requesting reconsideration, which begins on 

the date of the original OWCP merit decision. A right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues.7 Timeliness is determined by the 

document receipt date, the received date in OWCP’s integrated Federal Employees’ Compensation 

System (iFECS).8 Imposition of this one-year filing limitation does not constitute an abuse of 

discretion.9

 

4 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

5 20 C.F.R. § 10.607(a).

6 V.G., Docket No. 19-0038 (issued June 18, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018); Id. at

§ 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

7

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

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

9 S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).
4

When an application for review is untimely, OWCP undertakes a limited review to 

determine whether the application demonstrates clear evidence that OWCP’s final merit decision 

was in error.10 Its 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, if the claimant’s 

application for review demonstrates “clear evidence of error” on the part of OWCP.11

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence 

bears on the prior evidence of record.12 To demonstrate clear evidence of error, a claimant must 

submit evidence relevant to the issue which was decided by OWCP.13 The evidence must be 

positive, precise, and explicit and must manifest on its face that OWCP committed an error.14 

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

decision is insufficient to demonstrate clear evidence of error.15 It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion.16 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.17

To demonstrate clear evidence of error, 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.18 The Board 

makes an independent determination of whether a claimant has demonstrated clear evidence of 

error on the part of OWCP such that OWCP abused its discretion in denying merit review in the 

face of such evidence.19

 

10 C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., Docket No. 10-0323 (issued September 2, 2010); 

M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); 

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

11 See D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

12 V.G., supra note 6; see E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB 

919 (1992).

13 S.T., supra note 9; see C.V., supra note 10; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 

1153 (1992).

14 S.T., supra note 9; see E.P., supra note 12; Pasquale C. D’ Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 

ECAB 227 (1991).

15 V.G., supra note 6; see C.V., supra note 10; Leon J. Modrowski, supra note 10; Jesus D. Sanchez, supra note 10.

16 V.G., supra note 6; see E.P., supra note 12; Leona N. Travis, supra note 14.

17 Supra note 12.

18 D.G., supra note 11; Leon D. Faidley, Jr., 41 ECAB 104 (1989).

19 L.B., Docket No. 19-0635 (issued August 23, 2019).
5

The Board has held, however, that a claimant may request a schedule award or increased 

schedule award at any time based on the evidence of new exposure or medical evidence showing 

progress of an employment-related condition resulting in a permanent impairment or increased 

impairment.20

ANALYSIS

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.

In schedule award cases, in determining timeliness of a request for further review, a 

distinction is made between an application for an increased schedule award and a request for 

reconsideration of the denial of a schedule award. As noted above, the Board has held that a 

claimant may request a schedule award or increased schedule award at any time based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment,21 but when a claimant does not submit 

any relevant evidence with respect to an increased schedule award, then OWCP may properly 

determine that he or she has filed a request for reconsideration of a schedule award decision.22 The 

Board finds that appellant did not submit relevant evidence with respect to establishing an 

increased permanent impairment and, thus, OWCP properly considered her submission as a 

request for reconsideration, not a request for an increased schedule award.

As the Board has found that appellant filed a reconsideration request, the next issue is 

whether it was timely filed. Appellant’s November 13, 2018 request for reconsideration of 

OWCP’s November 9, 2017 merit decision was not received within one year of the last merit 

decision on this issue. Therefore, the Board finds that the request was untimely filed.23 As her 

reconsideration request was untimely filed, appellant must demonstrate clear evidence of error on 

the part of OWCP in its November 9, 2017 merit decision.24

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

OWCP in its November 9, 2017 merit decision. In a statement submitted along with her request 

for reconsideration, appellant argued that Dr. Papp’s September 21, 2017 report was deficient 

because the evaluation lasted less than 30 minutes, he did not take proper note of her responses to 

the sensation and resistance testing, did not test her ability to grip, and ignored her concerns over 

pain which emanated from her wrists. However, she did not submit the type of positive, precise,

and explicit evidence which manifests on its face that OWCP committed an error in its 

 

20 C.W., Docket No. 18-0703 (issued December 28, 2018); R.D., Docket No. 18-0579 (issued September 14, 2018); 

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

21 Id.

22 W.J., Docket No. 12-1746 (issued February 5, 2013).

23 Supra note 6.

24 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).
6

November 9, 2017 decision when it denied her schedule award claim.25 Appellant did not submit 

additional medical evidence in connection with her reconsideration request containing a rating of 

permanent impairment. Further, her argument regarding Dr. Papp’s September 21, 2017 report 

did not raise a substantial question concerning the correctness of OWCP’s November 9, 2017 

decision. The question of appellant’s entitlement to schedule award compensation would generally 

be resolved through the submission of medical evidence and her mere assertion that she was 

entitled to schedule award compensation would not tend to show error by OWCP in its 

November 9, 2017 decision.26 As stated previously, it is not enough merely to show that the 

evidence could be construed so as to produce a contrary conclusion.27 The term clear evidence of 

error is intended to represent a difficult standard.28 The evidence submitted on reconsideration 

does not manifest on its face that OWCP committed an error in denying appellant’s claim for a 

schedule award. Appellant has not otherwise submitted evidence of sufficient probative value 

relative to a schedule award to raise a substantial question as to the correctness of OWCP’s 

decision. Thus, the Board finds that her untimely request for reconsideration is insufficient to 

demonstrate clear evidence of error.

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.

 

25 See L.L., Docket No. 17-0040 (issued January 24, 2017); Fidel E. Perez, 48 ECAB 663, 665 (1997).

26 L.L., id.

27 Supra note 16.

28 Supra note 8 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367 (1997).
7

ORDER

IT IS HEREBY ORDERED THAT the December 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 19, 2020

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