United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.W., Appellant

and

FEDERAL JUDICIARY, DISTRICT OF 

COLUMBIA SUPERIOR COURT, 

Washington, DC, Employer

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Docket No. 19-1186

Issued: October 28, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On May 3, 2019 appellant filed a timely appeal from an April 2, 2019 nonmerit decision

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

from OWCP’s last merit decision, dated October 6, 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 over 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.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 4, 2016 appellant, then a 44-year-old deputy clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on that date, she sustained torn ligaments in her right wrist while in the 

performance of duty. She noted that she woke up on the morning of July 4, 2016 and could not 

move her right hand due to pain. On the reverse side of the claim form, appellant’s supervisor 

indicated that she stopped work on the date of injury. 

Appellant submitted factual and medical evidence in support of her claim. In an August 27, 

2016 right wrist magnetic resonance imaging (MRI) scan report, Dr. Howard J. Dipiazza, a 

diagnostic radiologist, provided an impression of complete tear of the volar aspect of the distal 

radial ulnar joint with dorsal subluxation of the distal ulna and a volar subluxation of the extensor 

carpi ulnaris tendon, which may be a peripheral tear of the triangular fibrocartilage at its dorsal 

ulnar attachment.

In a development letter dated May 4, 2017, OWCP acknowledged receipt of appellant’s 

claim and informed her that additional evidence was needed to establish her claim. It specifically 

noted that the evidence was insufficient to establish that she actually experienced the employment 

incident as alleged and requested that she respond to an attached questionnaire in order to 

determine whether the alleged injury occurred in the performance of duty. OWCP also requested 

medical evidence in support of appellant’s claim. It afforded her 30 days to submit the requested 

information.

In response, appellant submitted two narrative statements, one undated and one dated 

May 8, 2017. She restated the history provided on her claim form and noted that she was evaluated 

in an emergency room on July 4, 2016. Appellant also noted that one week prior to her claimed 

injury, she had a busy schedule performing computer and data entry work. She reported having 

some discomfort and tightness in her wrists. Appellant alleged that she had not engaged in any 

unusual activities. She submitted three witness statements from her daughter and coworkers with 

descriptions of the claimed July 4, 2016 work incident, her repetitive work duties and medical 

treatment, which included wearing a right wrist cast for five weeks and then undergoing physical 

therapy. Appellant indicated that she returned to work on November 21, 2016 and requested 

accommodations. She contended that Dr. Eric D. McDonald, Board-certified in emergency 

medicine, diagnosed tendinitis or sprained muscles, and Alfred L. Phelps, a certified physician 

assistant, and Dr. Terrell P. Julien, an orthopedic surgeon, advised her that her wrist injury was 

work related. 

OWCP continued to receive medical evidence. In an April 27, 2017 left wrist x-ray report,

Dr. Saad Manzoul, a Board-certified diagnostic radiologist, provided an impression of no acute 

osseous injury. 

Dr. Summer Reid Herlihy, a diagnostic radiologist, noted in a left wrist MRI scan report 

dated May 23, 2017, her impression that appellant’s pain corresponded to the dorsal-ulnar aspect 

of the wrist at the level of the extensor carpi ulnaris tendon. She also provided an impression of 

slight flattening of the median nerve within the carpal tunnel at the level of the hamate raising 

question of carpal tunnel syndrome, correlate clinically. Dr. Herlihy further provided an 

impression of tiny central perforation questioned in the central disc of the triangular fibrocartilage 
3

complex (TFCC) and undersurface signal abnormality in the dorsal and volar radioulnar ligaments, 

likely degenerative. 

By decision dated June 13, 2017, OWCP accepted that the July 4, 2016 incident occurred 

as alleged, that a medical condition had been diagnosed, and that appellant was within the 

performance of duty when injured. However, it denied her claim, finding that the medical evidence 

of record was insufficient to establish that her diagnosed bilateral wrist conditions were causally 

related to the accepted July 4, 2016 employment incident. OWCP concluded, therefore, that the 

requirements had not been met to establish an injury or medical condition causally related to the 

accepted employment incident.

On July 11, 2017 appellant requested reconsideration and submitted additional medical 

evidence.

In a right wrist x-ray report dated July 4, 2016, Dr. Han Y. Kim, a Board-certified 

radiologist, noted no acute bony abnormality.

By decision dated October 6, 2017, OWCP denied modification of its June 13, 2017 

decision.

On December 26, 2018 appellant, through counsel, requested reconsideration. Counsel 

contended that accompanying medical evidence, including reports from Dr. Cecil D. George, an 

internist, and Dr. Richard O. Pyfrom, a Board-certified orthopedic surgeon, established that she 

had sustained bilateral wrist conditions due to her repetitive work duties. 

In a report dated October 8, 2018, Dr. George noted a history of injury that on July 4, 2016 

appellant experienced sudden nontraumatic severe right wrist pain and an inability to move her 

wrist. He also noted her subsequent medical treatment. Dr. George further noted that appellant 

subsequently developed left wrist pain after working on a poor ergonomic desk at work. Appellant

experienced persistent bilateral wrist pain. Dr. George provided findings on physical examination 

and diagnosed routine physical and right wrist pain. He opined that appellant had occupationalrelated torn tendons in the right hand due to repetitive work-related motions and left wrist and digit 

pain secondary to repetitive strain injury. Dr. George referred appellant to Dr. Pyfrom for

evaluation of her bilateral hand and wrist pain due to a work-related repetitive strain injury.

Dr. Pyfrom, in an October 18, 2018 patient note, obtained a history of injury that on July 4, 

2016 appellant woke up and could not move her right hand. He noted that a 2016 MRI scan 

showed a torn distal radioulnar volar attachment in the right hand and appellant was placed in a 

cast for five weeks. Dr. Pyfrom indicated that in 2018 appellant experienced left hand pain and 

that an MRI scan revealed a tiny, likely degenerative central TFCC tear in the left wrist, minimal 

fluid in the tendon sheath of the extensor carpi ulnaris (ECU), and no torn TFCC radial and styloid 

attachments. He noted her work duties, which included long periods of data entry and typing on a 

computer while preparing documentation for trial cases for 12 judges and using a computer mouse 

repetitively with her right hand. Dr. Pyfrom noted that appellant performed these duties for many 

years without ergonomic equipment until April 23, 2017 when she received such equipment. He

noted that she presented for evaluation of severe bilateral wrist and hand pain. Dr. Pyfrom

discussed findings on physical examination and provided assessments of other synovitis and 
4

tenosynovitis of the right and left forearms, primary ECU tenosynovitis, and overexertion from 

repetitive movements, initial encounter. He opined that appellant’s bilateral wrist tendinitis/

tendinopathy was directly and causally related to the repetitive nature of her job, preparing case 

jackets with the wrist in positions of sustained and repetitive ulnar deviation as she did not have 

an ergonomically designed computer keyboard and mouse. In addition, Dr. Pyfrom maintained 

that lifting, pulling, and wrist supination and pronation movements needed for lifting, opening, 

and closing the large case jackets during her 25-year career were well known to put stresses on the 

extensor carpi ulnaris tendon and the distal radioulnar joint where appellant’s condition was found. 

Dr. Pyfrom further maintained that this was especially true in appellant’s case since there was no 

history of traumatic injury to the wrists.

In a December 20, 2018 report, a registered nurse, whose signature is illegible, noted a 

history that appellant developed an onset of bilateral wrist pain on that date. 

Appellant also resubmitted Dr. Kim’s July 4, 2016 x-ray report, Dr. Dipiazza’s August 27, 

2016 MRI scan report, Dr. Manzoul’s April 27, 2017 x-ray report, and Dr. Herlihy’s May 23, 2017 

MRI scan report.

By decision dated April 2, 2019, 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.2 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.3 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).4 Imposition of this one-year filing limitation does

not constitute an abuse of discretion.5

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

a claimant’s application for review is untimely filed, it must nevertheless undertake a limited

 

2

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

3

20 C.F.R. § 10.607(a).

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

5 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.

Faidley, Jr., 41 ECAB 104 (1989).
5

review to determine whether it demonstrates clear evidence of error.

6

 If an application 

demonstrates clear evidence of error, it will reopen the case for merit review.7

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error. Evidence that does not raise a substantia l 

question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear 

evidence of error. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary conclusion. 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.8

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. 9 

The Board makes an independent determination of whether a claimant has demonstrated clear 

evidence of error on the part of OWCP.10

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.

OWCP’s regulations11 and procedures12 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues. 13 

 

6

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).

7 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 4at Chapter 2.1602.5 (February 2016).

8

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G.Burns, 57 ECAB 657 (2006).

9

J.S.,Docket No. 16-1240 (issued December 1, 2016); supra note 4at Chapter 2.1602.5(a) (February 2016).

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

11 20 C.F.R. § 10.607(a); see J.W., supra note 8; Alberta Dukes, 56 ECAB 247 (2005).

12 Supra note 4at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997). 

13 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
6

The last merit decision was OWCP’s October 6, 2017 decision which denied modification of its 

prior denial of appellant’s traumatic injury claim. As her request for reconsideration was not 

received by OWCP until December 26, 2018, more than one year after the October 6, 2017 

decision, the Board finds that it was untimely filed. Consequently, appellant must demonstrate 

clear evidence of error on the part of OWCP in denying her traumatic injury claim.

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

part of OWCP in its last merit decision. OWCP denied her traumatic injury claim as the medical

evidence of record was insufficient to establish that her diagnosed bilateral wrist conditions were

causally related to the accepted July 4, 2016 employment incident.

In his request for reconsideration, counsel contended that Dr. George’s October 8, 2018

and Dr. Pyfrom’s October 18, 2018 reports established that appellant sustained bilateral wrist 

conditions due to her repetitive work duties. However, he has not explained how this evidence

raises a substantial question as to the correctness of OWCP’s decision denying her traumatic injury

claim.

14

Moreover, Dr. George’s and Dr. Pyfrom’s reports are insufficient to demonstrate clear 

evidence of error with respect to OWCP’s October 6, 2017 decision. Dr. George provided a

history of the accepted July 4, 2016 employment incident, but referred to appellant’s repetitive

right hand work-related motions. To the contrary, Dr. Pyfrom did not provide a history of the

accepted work incident. Both physicians opined that appellant’s diagnosed bilateral wrist

conditions were due to her repetitive work duties and a repetitive strain injury. However, they did

not offer an opinion addressing the underlying issue in this case, whether appellant had a bilateral

wrist condition causally related to the accepted July 4, 2016 employment incident. Therefore, their 

reports are insufficient to shift the weight of the medical evidence.15

Appellant also submitted a December 20, 2018 report from a registered nurse. A nurse is 

not considered a “physician” as defined under FECA and thus her report does not constitute 

competent medical evidence.

16

 Consequently, this report is insufficient to demonstrate clear error

by OWCP with respect to the underlying medical issue. 

Appellant also submitted copies of Dr. Kim’s July 4, 2016 x-ray report, Dr. Dipiazza’s 

August 27, 2016 MRI scan report, Dr. Manzoul’s April 27, 2017 x-ray report, and Dr. Herlihy’s 

 

14 See P.B., Docket No. 18-0265 (issued September 5, 2018).

15 P.P., Docket No. 16-0913 (issued October 4, 2016).

16 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law). 

See id. at § 8101(2); N.C., Docket No. 18-0459 (issued August2, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 

(2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a 

medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 

208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative 

medical evidence from a physician).
7

May 23, 2017 MRI scan report, which were previously of record. This evidence, however, does 

not manifest on its face that OWCP committed an error in its October 6, 2017 decision.17

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 October 6, 2017 decision. Accordingly, the 

Board finds that OWCP properly denied her reconsideration request, as it was untimely filed and 

failed 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 April 2, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 28, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

17 See D.V., supra note 14; M.D., Docket No. 18-0017 (issued May 9, 2019); S.M., Docket No. 17-0385 (issued 

June 26, 2018).