United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Centerville, IA, Employer 

__________________________________________ 

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Docket No. 17-0183 

Issued: June 1, 2017 

Appearances: Case Submitted on the Record

Charles M. Cochrane, 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 November 3, 2016 appellant, through counsel, filed a timely appeal from a July 6, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision, dated December 16, 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 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 

On October 5, 2011 appellant, then a 58-year-old part-time flexible clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on October 1, 2011, while throwing a mail tray 

into a truck, she fell from the truck dock and broke her right leg and ankle. OWCP accepted her 

claim for bimalleolar open fracture of the right ankle and expanded her claim to include sprain of 

the back, lumbar region, and traumatic arthropathy of the right ankle and foot. Appellant 

stopped work on October 1, 2011 and worked intermittently thereafter.3

 

Appellant was treated by Dr. Joseph Galles, Jr., a Board-certified orthopedic surgeon, on 

October 1, 2011, who diagnosed grade 2 open right ankle fracture dislocation. On October 1, 

2011 Dr. Galles performed an authorized irrigation and debridement followed by an open 

reduction internal fixation of grade 2 open right ankle fracture and diagnosed grade 2, open right 

ankle fracture dislocation. In reports dated October 10 and 17, 2011, he noted that appellant was 

doing remarkably well and placed her in a short leg fiberglass nonwalking cast. 

On August 18, 2014 Dr. Thomas Klein, an osteopath, performed a left hip steroid 

injection with fluoroscopic guidance and diagnosed left hip pain. 

On December 26, 2014 appellant requested an expansion of her claim to include a 

consequential injury to her left hip due to weakness and impairment caused by her accepted 

work-related injury. She reported balance issues and other side effects from her October 1, 2011 

work injury. Appellant had been diagnosed with a work-related back sprain and she developed 

an altered gait pattern and left hip pain. She believed that the treatment records for her left hip 

condition clearly stated the relationship to the initial work injury. 

Evidence submitted by appellant included a September 2, 2014 report from Dr. Galles, 

who treated her for left foot pain from a left third toe fracture. Dr. Galles noted that appellant 

experienced trauma at work on June 29, 2014 and an x-ray of the left third toe revealed solid 

healing of an oblique fracture. He diagnosed closed fracture of third toe. In an October 6, 2014 

report, Dr. Galles saw appellant in follow up for right ankle pain. He noted that an 

electromyogram (EMG) and nerve conduction velocity (NCV) testing revealed evidence of 

pathology related to the posterior tibial nerve. Dr. Galles noted that appellant continued to 

experience dysesthesias and paresthesia of the right foot with incapacitating pain. He diagnosed 

tarsal tunnel syndrome and obesity. Appellant reported that she lost her balance as a result of 

issues related to the right ankle which caused her to fall injuring her left foot. Dr. Galles opined 

that the left toe injury would be related and secondary to her right ankle injury. He noted that he 

had nothing further to offer appellant. On January 16, 2015 appellant presented and reported 

severe pain with ambulatory activity. Dr. Galles noted that appellant failed extensive 

 3

 On September 5, 2013 OWCP granted appellant a schedule award for six percent permanent impairment of the 

right leg. In subsequent decisions, most recently on December 16, 2015, it denied her claim for an additional award. 
3

conservative measures and x-rays of the right ankle demonstrated post-traumatic arthritic 

changes of the tibiotalar joint with slight valgus alignment. He diagnosed osteoarthritis of ankle 

and obesity. 

In a letter dated February 3, 2015, OWCP advised appellant of the type of factual and 

medical evidence needed to establish her claim for a consequential left hip condition and 

requested that she submit such evidence, particularly requesting that she submit a reasoned 

opinion addressing the relationship of her claimed left hip condition and the October 1, 2011 

accepted work injury. 

In a March 20, 2015 report, an OWCP medical adviser opined that the medical evidence 

did not establish a left hip diagnosis causally related to the accepted right ankle injury. 

On April 17, 2015 OWCP denied appellant’s claim for a consequential left hip injury as 

the medical evidence of record did not demonstrate that the weakness or impairment caused by 

the accepted work-related injury led to the aggravation of the original injury or to a new 

consequential injury. 

In an August 9, 2015 letter, appellant noted enclosing her latest medical report. An 

accompanying August 4, 2015 report from Dr. Brian J. Schultz, a Board-certified orthopedist, 

noted treating appellant for left hip and right ankle conditions. Dr. Schultz noted a history of 

injury and diagnosed localized primary osteoarthritis of the left pelvis and trauma arthropathy at 

the tibial joint of the right ankle. He opined that the findings in appellant’s ankle were the result 

of her injury and her painful left hip was due to the chronic altered gait which occurred when 

favoring the right ankle. Dr. Schultz recommended physical therapy and an intra-articular 

cortisone injection. 

In a letter dated August 31, 2015, OWCP acknowledged receipt of Dr. Schultz’s 

August 4, 2015 medical report received after the final decision of April 17, 2015. It advised that 

if appellant wished to dispute that decision she must follow the appeal rights which accompanied 

it. 

By letter dated February 6, 2016, appellant inquired about her claim for a schedule award 

due to her right ankle condition. In a March 1, 2016 statement, she sought reimbursement for 

compression stockings prescribed by Dr. Galles. In a March 2, 2016 letter, appellant advised 

OWCP regarding her work restrictions. She noted that her right ankle had never recovered and 

that she continued to have disability. In a March 5, 2016 statement, appellant indicated that on 

February 1, 2016 Dr. Galles indicated that she was totally disabled and recommended she seek a 

consultation with Dr. John E. Femino, a Board-certified orthopedic surgeon. 

On an appeal request form dated March 1, 2016, but received by OWCP on April 22, 

2016, appellant requested reconsideration of the April 17, 2015 decision. In an attached 

statement, she noted seeking a second opinion from Dr. Schultz on the expansion of her claim to 

include a left hip condition causally related to the original right ankle injury. Appellant reported 

trouble walking and pain. She submitted an April 5, 2016 statement and requested an 

explanation from OWCP for denying her claim for compensation for the period November 14, 
4

2015 to March 4, 2016. Appellant requested a referral to Dr. Femino for surgical evaluation of 

the right ankle.4

In an undated report, Dr. Galles indicated that appellant sustained a grade 2 open right 

ankle fracture dislocation on October 11, 2011 while at work. Appellant underwent surgery for 

irrigation and debridement followed by open reduction internal fixation of the grade 2, open right 

ankle fracture. Dr. Galles noted that appellant was last seen on February 1, 2016 for right ankle 

pain. He noted that x-rays from January 16, 2015 revealed post-traumatic arthritic changes of 

the tibiotalar joint on the right side with slight valgus alignment as a result of the joint space. 

Dr. Galles indicated that appellant’s initial open injury involved the tarsal tunnel area and her 

symptoms were likely due to scar tissue formation which occurred around the tarsal tunnel and 

could be a direct result of stretch injury to the tibial nerve. He noted that appellant developed 

arthritis of the right ankle from her grade 2 open right ankle fracture. 

OWCP also received a field nurse report dated May 25, 2016 and personnel documents. 

In a letter dated May 31, 2016, appellant, through counsel, noted his continuing 

representation of appellant. Counsel indicated that on March 1, 2016 appellant had filed a 

request for reconsideration of the April 17, 2015 decision which denied expansion of her claim to 

include a left hip condition. 

Appellant filed several claims for compensation CA-7 forms for the period April 16 to 

June 25, 2016. 

In a statement dated June 7, 2016, appellant requested OWCP to reconsider expanding 

her claim to include her left hip and referenced Dr. Schultz’ August 4, 2015 report. She 

submitted a June 13, 2016 prescription note from Dr. Galles for compression hose. Appellant 

also submitted a June 28, 2016 report from Dr. Femino who treated her for right ankle pain. 

Dr. Femino noted that appellant was off work for five weeks and could return to work on 

August 2, 2016 with restrictions. 

By decision dated July 6, 2016, OWCP denied appellant’s request for reconsideration, 

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.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 

 4

 In a letter dated May 25, 2016, OWCP instructed appellant to contact Dr. Femino directly for treatment and 

submit a written request to change physicians. 

5

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

OWCP’s decision for which review is sought.6 The Board found that imposition of this one-year 

filing limitation does not constitute an abuse of discretion.7

 OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake 

a limited review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP must reopen the case for merit review.8

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

to the issue that was decided by OWCP9

 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 demonstrate 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 demonstrated 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’s request for 

reconsideration was untimely filed. 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 OWCP until April 22, 2016, more 

than one year after issuance of the last merit decision by OWCP on April 17, 2015, it was 

untimely filed. Consequently, she must demonstrate clear evidence of error by OWCP in 

denying her claim for compensation. 

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

OWCP. In her reconsideration request, appellant disagreed with OWCP’s April 17, 2015 

decision denying her request to expand her claim to include a left hip condition. On May 31, 

 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). 

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 2016) (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). 
6

2016 appellant, through counsel, asserted that appellant had filed on March 1, 2016 a request for 

reconsideration of the April 17, 2015 decision which denied expansion of her claim to include a 

left hip condition. Other statements dated March 1 and June 7, 2016 referenced an August 4, 

2015 report from Dr. Schultz which addressed her left hip and right ankle conditions. Appellant 

requested OWCP to reconsider expanding her claim to include her left hip. The Board notes 

that, while appellant addressed her disagreement with OWCP’s decision denying her claim for a 

left hip condition, her general allegations do not raise a substantial question as to the correctness 

of OWCP’s most recent merit decision. 

Appellant also submitted medical evidence. She submitted an August 4, 2015 report from 

Dr. Schultz who diagnosed localized primary osteoarthritis of the left pelvis and trauma 

arthropathy at the tibial joint of the right ankle. Dr. Schultz opined that the findings in 

appellant’s ankle were the result of her injury and her painful left hip was due to the chronic 

altered gait which occurred when favoring the right ankle. While he provided support for causal 

relationship, his report did not demonstrate clear evidence of error. The Board notes that clear 

evidence of error is intended to represent a difficult standard. Evidence such as a detailed, wellrationalized 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.13 The 

Board finds that this evidence does not rise to the level of clear evidence of error. 

Appellant submitted a September 2, 2014 report from Dr. Galles who diagnosed closed 

fracture of the third toe. Dr. Galles noted that appellant experienced trauma at work on June 29, 

2014 and sustained an oblique fracture. In an October 6, 2014 report, he noted EMG and NCV 

results revealed evidence of pathology related to posterior tibial nerve and he diagnosed tarsal 

tunnel syndrome and obesity. Similarly, on January 16, 2015, Dr. Galles diagnosed osteoarthritis 

of ankle and obesity. In an undated statement, he opined that appellant developed arthritis of the 

right ankle from her grade 2 open right ankle fracture. Likewise, in a June 28, 2016 report, 

Dr. Femino treated appellant for right ankle pain and noted that she was off work for five weeks. 

On August 18, 2014 Dr. Klein performed a left hip steroid injection with fluoroscopic guidance 

and diagnosed left hip pain. However, this evidence is insufficient to demonstrate clear evidence 

of error as not only do the reports fail to address the underlying factual issue in this case, they 

raise no error in OWCP’s decision.14 

Thus, the Board finds that OWCP properly found that appellant’s March 1, 2016 request 

for reconsideration, received on April 22, 2016, was untimely filed and failed to demonstrate 

clear evidence of error. 

On appeal appellant, through counsel, asserts that she timely submitted her request for 

reconsideration of the April 17, 2015 decision. As noted above, a request for reconsideration 

must be received within one year of the date of OWCP’s decision for which review is sought.15 

 13 D.G., 59 ECAB 455 (Docket No. 08-137, issued April 14, 2008). 

14 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). See also supra note 13. 

15 20 C.F.R. § 10.607(a). 
7

In this case, the reconsideration request was received by OWCP on April 22, 2016 and there is 

no other evidence to substantiate that it was timely received. Appellant further asserts that the 

medical evidence submitted with the request for reconsideration positively, precisely, and 

explicitly shows that OWCP’s refusal to expand the accepted injuries to include the left hip was 

clearly in error. However, as explained above, the medical evidence submitted is insufficient to 

demonstrate clear evidence of error. 

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 July 6, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: June 1, 2017 

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