United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.T., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, 

Kinston, NC, Employer

__________________________________________

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Docket No. 19-1624

Issued: October 28, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 26, 2019 appellant filed a timely appeal from a May 13, 2019 nonmerit decision 

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

from OWCP’s last merit decision, dated January5, 2017, to the filing of this appeal, pursuant to 

 

1 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated October 23, 

2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately 

be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1624 (issued 

October 23, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is 

denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R. 

§ 501.5(b).
2

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

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

This case has been previously before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On May 15, 2012 appellant, then a 30-year-old food inspector, filed an occupational 

disease claim (Form CA-2) alleging that he sustained bilateral carpal tunnel syndrome, bilateral 

cubital tunnel syndrome, and a right trigger thumb while in the performance of duty inspecting 

poultry. OWCP accepted the claim for bilateral carpal tunnel syndrome. It subsequently expanded 

acceptance of the claim to include bilateral cubital tunnel syndrome and right trigger finger. 

On April 19, 2015 appellant filed an occupational disease claim (Form CA-2) alleging that, 

on or before June 27, 2014, he sustained renal failure and PTSD consequential to the bilateral 

upper extremity conditions.

In reports dated September 30, 2015 to March 1, 2016, Dr. Lawrence N. Larabee, Jr., a 

Board-certified orthopedic surgeon, noted limited motion of the right shoulder.

In a March 16, 2016 report, Dr. Herbert White Jr., Board-certified in physical medicine 

and rehabilitation and serving as a DMA, noted 19 percent permanent impairment of the right 

shoulder due to restricted motion.

In a development letter dated June 22, 2016, OWCP advised appellant of the type of 

evidence needed to establish a consequential right shoulder condition. It afforded him 30 days to 

submit the necessary evidence.

 

2 5 U.S.C. § 8101 et seq. 

3 The Board notes that, following the January 5, 2017 decision, OWCP received additional evidence. Appellant 

also submitted additional evidence on appeal. 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.

4 Docket No. 17-1084 (issued April 2, 2018).
3

In response appellant submitted June 22 and August 8, 2016 statements requesting 

reinstatement on the periodic rolls and an attendant allowance. He also submitted claims for travel 

reimbursement.

By decision dated August 8, 2016, OWCP denied expansion of the claim to include a 

consequential right shoulder condition as the medical evidence of record was insufficient to

establish causal relationship between that additional condition and to the accepted upper extremity 

conditions.

On October 29, 2016 appellant requested reconsideration. He alleged that Dr. Larabee had 

informed OWCP that appellant’s work duties and bilateral carpal tunnel syndrome had caused a 

right shoulder condition. 

In an August 30, 2016 report, Dr. Larabee noted appellant’s complaint of the gradual onset 

of right shoulder pain over the past two months with no specific injury. On examination of the 

right shoulder, he observed moderate tenderness over the acromioclavicular joint at the internal 

insertion of the rotator cuff, positive Hawkins and Neers tests, and restricted motion. Dr. Larabee 

diagnosed right shoulder impingement. In a September 7, 2016 report, he opined that the 

diagnosed right shoulder impingement was not directly related to the accepted employment 

conditions. 

Appellant also submitted a September 6, 2016 report by Dr. Harrison G. Tuttle, a Boardcertified orthopedic surgeon, who diagnosed severe right ulnar nerve dysfunction affecting the 

right hand, wrist, and forearm. He also provided December 8, 2016 electrodiagnostic studies of 

the upper extremities.

By decision dated January 5, 2017, OWCP denied modification of the August 8, 2016 

decision.

On March 14, 2018 appellant requested reconsideration and submitted additional evidence.

On July 13, 2017 Dr. Tuttle performed authorized right ulnar nerve decompression at 

elbow with ulnar nerve wrap and anterior muscular transposition with flexor pronator mass tendon 

lengthening. On November 16, 2017 he performed left ulnar nerve decompression at the wrist and 

left carpal tunnel release. Dr. Tuttle provided periodic progress notes. In a February 15, 2018 

report, he noted that he could not provide an impairment rating for a shoulder condition as he was 

not a shoulder specialist.

In a report dated May 8, 2018, Dr. Semaan El-Khoury, an attending internist, diagnosed 

end-stage renal disease. He found appellant totally disabled from work.

Appellant also submitted a March 7, 2018 functional capacity evaluation by Nathan Hill, a 

physical therapist; a January 9, 2018 report by Ashley Mason, a physician assistant; March 6 and 

April 5, 2018 reports by Margaret Ann Dillon, a nurse practitioner; and literature regarding kidney 

conditions.
4

By decision dated June 8, 2018, OWCP denied appellant’s March 14, 2018 request for

reconsideration of the January 5, 2017 decision finding that it was untimely filed and failed to 

demonstrate clear evidence of error.

On April 4, 2019 appellant again requested reconsideration. He submitted statements 

asserting that Dr. Larabee’s reports were sufficient to establish a consequential right shoulder

condition. Appellant also submitted additional medical evidence.

In a July 10, 2018 report, Dr. Bruce D. Wilhelmsen, a Board-certified orthopedic surgeon, 

noted good abduction and forward flexion of the right arm. He obtained x-rays of the right 

shoulder, which demonstrated normal glenohumeral and lateral relationships. Dr. Wilhelmsen

reassured appellant that his right shoulder was normal.

In reports dated August 8 and September 5, 2018, Dr. Larabee noted scapular wasting of 

the right shoulder with nerve pain. He diagnosed right scapular winging and impingement 

syndrome of the right shoulder.

A September 4, 2018 magnetic resonance imaging (MRI) scan of the right shoulder 

demonstrated mild tendinosis of the supraspinatus and infraspinatus tendons.

In a February 18, 2019 report, Dr. El-Khoury diagnosed bilateral hand and wrist conditions 

but did not address appellant’s right shoulder.

In a March 26, 2019 report, Dr. Larabee opined “with complete medical certainty, there is 

no question the right shoulder dysfunction, pain, rotator cuff partial tear, overuse syndrome, 

impingement” and acromioclavicular joint arthritis was exacerbated by the weakness of the right 

hand, elbow, and right wrist caused by accepted carpal tunnel syndrome and ulnar neuritis 

beginning in 2012.

Appellant also submitted March 6 and April 5, 2018 reports by Ms. Dillon, July 31, 2018 

and May 2, 2019 reports by Penny Brown, a nurse practitioner, and a February 28, 2019 report by 

Ayanna Whitfield, a nurse practitioner.

By decision dated May 13, 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.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 OWCP’s 

decision for which review is sought.6 Timeliness is determined by the document receipt date (i.e.,

 

5 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).

6 20 C.F.R. § 10.607(a).
5

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).

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Imposition of this one-year filing limitation does not constitute an abuse of discretion.8

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

determine whether the request demonstrates clear evidence that OWCP’s most recent merit 

decision was in error.9 OWCP’s procedures provide that it 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 request for reconsideration demonstrates “clear evidence of error” on the part of 

OWCP.10 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.11

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

issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error. Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision 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. 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 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.

ANALYSIS

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

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

The most recent merit decision on the issue of a consequential right shoulder condition was

January 5, 2017. As appellant’s request for reconsideration was not received by OWCP until 

April 4, 2019, more than one year after the January 5, 2017 decision, it was untimely filed. 

 

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

8 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).

9 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).

10 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).

11 J.S., Docket No. 20-0337 (issued July 15, 2020); J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket 

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

12 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).
6

Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the 

claim.13

In support of his untimely request for reconsideration, appellant asserted that medical 

reports from Dr. Larabee were sufficient to establish his claim for a consequential right shoulder 

condition. In reports dated August 8 and September 5, 2018, Dr. Larabee diagnosed right shoulder 

impingement syndrome and right scapular winging. He opined in a March 26, 2019 report that 

appellant developed right rotator cuff syndrome with impingement and acromioclavicular arthritis 

due to overcompensating for right hand weakness due to accepted carpal tunnel syndrome and 

cubital tunnel syndrome. However, these reports do not raise a substantial question concerning 

the correctness of OWCP’s January 5, 2017 decision as they do not demonstrate the consequential 

injury claim was improperly denied since they merely show that the evidence could have been 

construed to produce a contrary conclusion. 

Appellant also submitted a July 10, 2018 report from Dr. Wilhelmsen and a February 18, 

2019 report from Dr. El-Khoury. However, as neither of these reports addressed a right shoulder 

condition, they are irrelevant to the underlying issue, and therefore insufficient to demonstrate 

clear evidence of error in OWCP’s January 5, 2017 decision.14

Appellant also submitted reports by Ms. Brown and Ms. Dillon, both nurse practitioners. 

As nurse practitioners are not considered physicians under FECA, their medical findings and 

opinions are of no probative value and are insufficient to establish entitlement to compensation 

benefits.15 Likewise, the September 4, 2018 imaging study also lacks probative value as it does 

not address whether the accepted employment conditions caused or contributed to a right shoulder 

condition.16 Therefore this evidence is also insufficient to shift the weight of the evidence and 

raise a substantial question as to the correctness of OWCP’s decision.17

The Board has held that the term clear evidence of error is intended to represent a difficult 

standard. The claimant must present evidence that on its face shows that OWCP made an error.18 

 

13 20 C.F.R. § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57 

ECAB 149 (2005).

14 S.C., supra note 12.

15 5 U.S.C. § 8101(2) provides that a physician includes 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); M.J., Docket No. 19-1287 (issued January 13, 2020); P.H., Docket No. 19-0119 (issued July 5, 

2019); T.K., Docket No. 19-0055 (issued May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay 

individuals such as nurses, physician assistants, and physical therapists are not competent to render a medical opinion 

under FECA). See W.Z., Docket No. 20-0191 (issued July 31, 2020) (a nurse practitioner is not considered a physician 

under FECA). 

16 M.C., Docket No. 19-1074 (issued June 12, 2020); N.B., Docket No. 19-0221 (issued July 15, 2019).

17 Supra note 12.

18 G.B., Docket No. 19-1762 (issued March 10, 2020).
7

It is not enough merely to establish that the evidence could be construed so as to produce a contrary 

conclusion.19

None of the evidence submitted by appellant in connection with his untimely 

reconsideration request manifests on its face that OWCP committed an error in its January 5, 2017 

decision denying expansion of appellant’s claim. Appellant has not submitted evidence of 

sufficient probative value to raise a substantial question as to the correctness of OWCP’s 

decision.20 The Board thus finds that OWCP properly denied appellant’s request for 

reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.21

CONCLUSION

The Board finds that 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.

 

19 U.C., Docket No. 19-1753 (issued June 10, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018).

20 C.D., Docket No. 19-1462 (issued June 26, 2020).

21 See J.D., Docket No. 18-1765 (issued June 11, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the May 13, 2019 decision of the Office of Workers’

Compensation Program is affirmed.

Issued: October 28, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board