United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

EXPEDITIONARY MEDICAL SUPPORT 

COMMAND, Williamsburg, VA, Employer

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Docket No. 20-0537

Issued: September 24, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 8, 2020 appellant filed a timely appeal from a July 12, 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 June 27, 2018, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the July 12, 2019 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 of the 

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On September 2, 2008 appellant, then a 49-year-old inventory management specialist, filed 

a traumatic injury claim (Form CA-1) alleging that on that day he sustained a right ankle injury 

when he slipped on loose rocks and twisted his ankle while in the performance of duty. He stopped 

work on the date of the alleged injury. OWCP accepted appellant’s claim for right ankle sprain,

deltoid ligament; knee sprain, lateral collateral ligament; and right venous embolism and deep vein 

thrombosis (DVT) of the right lower extremity. 

Appellant continued to receive medical treatment. In a September 16, 2016 office note,

Dr. Matthew Hopson, a podiatrist, related appellant’s complaints of right ankle pain and noted an 

onset of 20 years ago. Upon examination of appellant’s right ankle, he observed pain on range of 

motion with instability along the distal portion and varicose veins on the medial aspect of the right 

ankle. Dr. Hopson related that a right ankle x-ray examination revealed joint space narrowing 

osteoarthritic changes along the right ankle joint and small old avulsion fractures along the medial 

lateral aspects of the ankle. He diagnosed post-traumatic osteoarthritis of the right ankle and joint 

and right ankle and joint pain. 

In an October 17, 2016 office note, Dr. Hopson indicated that appellant was seen for 

follow-up of right ankle pain and noted an onset of 20 years ago. He noted examination findings 

of right ankle pain and instability along the right ankle joint and assessed post-traumatic 

osteoarthritis of the right ankle and foot. Dr. Hopson related that appellant was scheduled for a 

right ankle stabilization procedure and ankle arthroscopy. 

In a November 16, 2016 examination report, Dr. John Paschold, a Board-certified internist 

who specializes in hematology and medical oncology, related that appellant was seen for followup of his hypercoagulable state and noted his complaints of DVT. He reviewed appellant’s history 

and conducted an examination. Dr. Paschold diagnosed DVT disorder and factor V leiden 

mutation disorder.

On March 27, 2017 appellant requested authorization for right ankle arthroscopy surgery. 

In a March 28, 2017 letter, OWCP advised appellant that it would be unable to authorize 

his request for right ankle arthroscopic surgery and repair of the right ankle ligament. It noted that 

the request was not accompanied by an explanation as to why the requested procedure was 

necessary to treat the accepted employment injury. 

In an April 11, 2017 letter, Dr. Hopson indicated that a 2011 magnetic resonance imaging

(MRI) scan of the right ankle verified arthritic changes along the ankle joint and a torn anterior 

talofibular ligament (ATF) ligament. He related that appellant did not have any MRI scan imaging 

from the September 2, 2008 sprain to verify if the torn ligament happened during that incident. 
3

Dr. Hopson reported that the last several years with a torn ligament had led to further instability 

and arthritic changes along the ankle joint. He explained that he proposed to do a lateral ankle 

stabilization and repair the torn ligament in order to prevent or, at least, slow the process of further 

osteoarthritic changes in appellant’s ankle. Dr. Hopson reported that the surgery would benefit 

appellant and slow the arthritic process down to hopefully prevent further surgery on the right 

ankle joint.

In an April 13, 2017 letter, appellant explained that he sprained his ankle while he was on 

active duty in the Navy in 1985. He also related that he fractured his right ankle in 2003, for which 

he had an accepted workers’ compensation claim under OWCP File No. xxxxxx179.

3

 

By decision dated April 20, 2017, OWCP denied authorization for right ankle arthroscopy 

surgery and repair. It found that the medical evidence of record was insufficient to establish that 

the proposed surgery was necessary to treat his September 2, 2008 employment injury.

Appellant subsequently submitted additional medical evidence. 

In a May 17, 2017 note, Dr. Paschold noted appellant’s diagnoses of DVT disorder and 

factor V Leiden mutation disorder. He reviewed appellant’s history and provided examination 

findings. Dr. Paschold discussed appellant’s laboratory and pathology results. 

In a November 20, 2017 report, Dr. Hopson related appellant’s complaints of worsening 

right ankle pain. He reviewed appellant’s history, noted examination findings, and discussed 

diagnostic testing results. Dr. Hopson assessed right ankle post-traumatic osteoarthritis and right 

ankle pain. He reported that appellant may no longer be a candidate for an ankle joint arthroscopy, 

but may need to have the ankle joint fused or replaced. 

Appellant underwent a right ankle computerized tomography (CT) scan on November 30,

2017, which revealed moderate ankle joint osteoarthritis, chronic ossifications suggestive of 

remote anterior inferior tibiofibular (AITF), ATF, deep deltoid ligament injury, and mild posterior 

and middle subtalar joint osteoarthritis. 

In a December 5, 2017 report, Dr. Hopson indicated that appellant’s CT scan revealed 

osteoarthritic changes along the right ankle joint and the chronic ossifications along the ATF 

ligament consistent with the old ankle sprain injury, which has subsequently sclerosis. He 

explained that after lengthy discussion about an ankle implant versus ankle joint fusion due to the 

arthritic condition of the subtalar joints, appellant opted for the joint replacement. 

In a January 3, 2018 report, Dr. Michael E. Landis, a Board-certified vascular surgeon, 

recounted that appellant had a history of remote right ankle injury, recurrent chronic right lower 

extremity DVT, and chronic venous insufficiency with ulceration. He indicated that appellant 

continued to have moderate right lower extremity trophic changes adjacent to the medial malleolux 

and intermittent ulcerations. Dr. Landis noted that appellant was supposed to have right ankle 

 

3 Under File No. xxxxxx179, OWCP accepted that on February 7, 2003 appellant fractured his right ankle when he 

stepped into a hole while inspecting a vehicle while in the performance of duty. It accepted his claim for right ankle 

fracture. Appellant’s claims have not been administratively combined.
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surgery, but it had been delayed such that now Dr. Hopson was recommending joint replacement. 

He noted examination findings and opined that appellant appeared to be doing well clinically. 

A January 18, 2018 right lower extremity venous insufficiency duplex study showed no 

evidence of DVT in the right common femoral, femoral, or popliteal veins.

In progress notes January 24 to March 27, 2018, Dr. Landis noted examination findings 

and appellant’s history of venous insufficiency, DVT, and right lower leg stasis ulceration. He 

diagnosed chronic venous insufficiency with recurrent stasis ulceration of the right lower extremity 

DVT and right ankle degenerative joint disease following remote trauma. Dr. Landis noted that 

appellant was scheduled for right ankle joint repair/replacement with Dr. Hopson in March.

Appellant underwent additional diagnostic testing. A February 27, 2018 post-ablation 

venous duplex revealed successful right perforator vein closure and acute and occlusive DVT in 

the adjacent right 1 of 2 distal posterior tibial veins. A March 9, 2018 lower extremity venous 

duplex scan report revealed chronic, focal, nonocclusive deep venous thrombosis of the right 

popliteal vein, acute, occlusive DVT of the right distal posterior tibial and vein of the right calf. 

In a March 9, 2018 examination report, Dr. Paschold noted right lower extremity 

examination findings of right ankle pain. He assessed DVT disorder, factor V Leiden mutation 

disorder, and ankle pain.

OWCP received a series of diagnostic laboratory results dated April 10, 2017 to 

May 9, 2018. 

On June 18, 2018 appellant requested reconsideration. He asserted that while he had a 20-

year-history of previous ankle injuries, his current ankle conditions were a result of his accepted 

September 2, 2008 right ankle sprain injury.

In a March 9, 2018 letter to Dr. Hopson, Dr. Paschold indicated that he had been treating 

appellant since approximately 2010 for right ankle pain. He explained that he initially thought 

appellant’s condition may be more related to peripheral vascular disease and/or postphlebitic 

syndrome, but now he felt that there was probably an orthopedic component as well. 

In a May 23, 2018 letter, Dr. Hopson indicated that appellant had been his patient since 

late 2016 and suffered from unstable ankle as a result of ATF, talofibular, and deltoid ligament 

damage. He explained that the damaged ligaments and instability had led to development of 

arthritis in the ankle joint. Dr. Hopson related that appellant’s ankle joint had deteriorated to the 

point that repair was no longer an option and he now recommended right ankle replacement 

surgery. He opined that the sprain that occurred in September 2008 was a contributing factor to 

appellant’s condition. Dr. Hopson noted that appellant’s ankle condition continued to deteriorate.

He concluded that ankle replacement surgery was the best option to treat appellant’s current ankle 

condition, which had continued to deteriorate as a result of the 2008 sprain. 

By decision dated June 27, 2018, OWCP denied modification of the April 20, 2017 

decision.

OWCP subsequently received laboratory testing results dated July 5, 2018 to April 1, 2019. 
5

Additionally, appellant submitted an August 7, 2018 office visit note, wherein Dr. Hopson 

indicated that appellant was treated for follow-up of worsening right ankle pain. He reviewed 

appellant’s history and provided examination findings. Dr. Hopson noted continued pain along 

the right ankle joint and no joint tenderness, instability, or decreased mobility. He assessed right 

ankle joint pain and right ankle post-traumatic osteoarthritis.

In a November 27, 2018 office note, Dr. Paschold reviewed appellant’s history and noted 

examination findings of right medial malleolus hyperpigmentation varicosities in the extremities. 

He assessed DVT disorder, factor V Leiden disorder, and ankle pain. 

In a May 14, 2019 report, Dr. Landis related appellant’s history of chronic venous 

insufficiency, recurrent DVT, and arthritis in his right ankle. He indicated that appellant had been 

scheduled to undergo a total joint replacement, but it was canceled due to insurance constraints. 

Dr. Landis recounted appellant’s ongoing complaints of pain and discomfort on the dorsum of his 

foot. He opined that this appeared to be musculoskeletal in nature, and not related to either arterial 

or venous insufficiency.

On June 28, 2019 appellant requested reconsideration. In a letter dated June 24, 2019, 

appellant requested information on how to change his doctor since Dr. Hopson no longer wanted 

to treat his ankle injury. He also requested that his current claim be combined with his accepted 

February 6, 2003 ankle injury claim because connecting the two claims would address the concerns 

expressed about the history of his ankle injury. Appellant also contended that three physicians had 

provided a well-rationalized opinion that his diagnosed post-traumatic osteoarthritis was a direct 

result of the 2003 fracture and the 2008 sprain. Furthermore, citing to the Federal (FECA)

Procedure Manual, he alleged that his ankle sprain and subsequent post-traumatic osteoarthritis 

conditions were clear-cut traumatic injury claims, which did not require a fully-rationalized 

medical opinion. 

Appellant submitted a July 8, 2011 report by Dr. Loel Z. Payne, a Board-certified 

orthopedic surgeon, who diagnosed talar dome osteochondritis dissecans. Dr. Payne opined that 

the diagnosed condition “is due to his previous inversion sprain injury several years ago.” He 

noted that appellant remained symptomatic and recommended an MRI scan and possible surgical 

intervention in the form of an arthroscopic chondroplasty.

Appellant also submitted an October 22, 2018 note by Dr. Aasta Pedersen, a Boardcertified orthopedic surgeon, who related appellant’s complaints of left knee pain from 

compensating on his right ankle and continued right ankle pain. Dr. Pederson reported diagnosed 

conditions of left knee osteoarthritis and right ankle and foot post-traumatic osteoarthritis. 

By decision dated July 12, 2019, OWCP denied appellant’s reconsideration request. It 

found that his reconsideration request was untimely filed and failed to demonstrate clear evidence 

of error.

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

request for reconsideration must be received by OWCP within one year of the date of OWCP’s 
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decision for which review is sought.4 Timeliness is determined by the document receipt date of 

the request for reconsideration as is indicated by the “received date” in the Integrated Federal 

Employees’ Compensation System.5 The Board has found that the imposition of the one-year time 

limitation does not constitute an abuse of the discretionary authority granted OWCP under section 

8128(a) of FECA.6 

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

When a request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether the request demonstrates clear evidence of error.7 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 

request demonstrates clear evidence of error on the part of OWCP.8

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.9 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion.10 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 evidence of error.11 The 

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

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

of such evidence.12

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.13 The claimant must present evidence that 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 that, if submitted before the denial was issued, 

 

4 20 C.F.R. § 10.607(a).

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

6 G.L., Docket No. 18-0852 (issued January 14, 2020).

7 20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

8

Id.; Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(a).

9 20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

10 See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

11 B.W., supra note 9.

12 Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

13 Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(b).
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would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.14 

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.15 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that a decision shall contain findings of fact and a statement 

of reasons.16 The Board has held that the reasoning behind OWCP’s evaluation should be clear 

enough for the reader to understand the precise defect of the claim and the kind of evidence which 

would overcome it.17

ANALYSIS

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

reconsideration was untimely filed. 

OWCP received appellant’s request for reconsideration on June 28, 2019, which was more 

than one year after the last merit decision, dated June 27, 2018. As appellant’s request for 

reconsideration was untimely filed, he must demonstrate clear evidence of error on the part of 

OWCP.

18

The Board further finds, however, that OWCP did not make findings regarding the 

evidence that appellant submitted in support of the reconsideration request.19

In support of his untimely request for reconsideration, appellant submitted a July 8, 2011 

report from Dr. Payne, who diagnosed talar dome osteochondritis dissecans “due to his previous 

inversion sprain injury several years ago.” He recommended an MRI to be followed by a 

determination as to whether surgery was warranted. Additionally, appellant submitted an 

August 7, 2018 report from Dr. Hopson, an October 22, 2018 report from Dr. Pedersen, a 

November 27, 2018 report from Dr. Paschold, and a May 14, 2019 report from Dr. Landis 

regarding the medical treatment he received for his right ankle pain, DVT disorder, and right ankle 

post-traumatic osteoarthritis. Although OWCP acknowledged appellant’s submission of the 

aforementioned evidence in its July 12, 2019 decision, the only report it analyzed in explaining 

why appellant had failed to demonstrate clear evidence of error was that of Dr. Hopson. It 

 

14 G.B., supra note 10; A.R., Docket No. 15-1598 (issued December 7, 2015).

15 5 U.S.C. § 8124(a).

16 20 C.F.R. § 10.126.

17 C.M., Docket No. 19-1211 (issued August 5, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014); 

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all decisions 

should contain findings of fact sufficient to identify the benefit being denied and the reason for the disallowance).

18 Supra note 8.

19 See Order Remanding Case, J.K., Docket No. 20-0556 (issued August 13, 2020); Order Remanding Case, C.D., 

Docket No. 19-1962 (issued June 29, 2020).
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provided no discussion relative to the remainder of the new evidence submitted by appellant.20 

Thus, the Board finds that OWCP did not comply with the review requirements of FECA and its 

implementing regulations.21 Appellant, therefore, could not understand the precise defect of the 

claim and the kind of evidence which would overcome it.22

The Board will therefore set aside OWCP’s July 12, 2019 decision and remand the case for 

findings of fact and a statement of reasons, to be followed by an appropriate decision on appellant’s 

untimely reconsideration request.

CONCLUSION

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

reconsideration was untimely filed. The Board further finds, however, that the case is not in 

posture for decision regarding whether appellant’s reconsideration request has demonstrated clear 

evidence of error. 

ORDER

IT IS HEREBY ORDERED THAT the July 12, 2019 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part, and the case is remanded for 

further proceedings consistent with this decision of the Board.

Issued: September 24, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 See R.T., Docket No. 19-0604 (issued September 13, 2019); J.K., id.

21 See C.M., supra note 17.

22 Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.1400.5.